Last Updated: December 6, 2023
This Agreement applies to and govern your use of and access to all the existing CAKE.com Services, Products and Software as defined hereunder, offered and provided by CAKE.com at the moment of your accepting this Agreement and your registration for a User Account, as well as to all the later developed CAKE.com Services, Products and Software as defined hereunder, offered and provided by CAKE.com in any moment in the future. Accordingly, this Agreement applies to and govern your installation, access to, acquisition and use of CAKE.com Products or Software as defined hereunder, that CAKE.com includes as part of the Services, and any other now existing or later developed CAKE.com Products and Software and other programs and tools, developed in conjunction therewith.
This Agreement and incorporated policies define our relationship and mutual expectations as you use these Services, Products and Software.
OUR SERVICES ARE INTENDED FOR USE BY BUSINESSES AND COMMERCIAL ENTITIES ONLY. YOU ARE NOT AUTHORIZED TO USE OUR SERVICES AS A NATURAL PERSON FOR PERSONAL OR HOUSEHOLD PURPOSES OR FOR ANY OTHER PURPOSE UNRELATED TO YOUR TRADE, BUSINESS OR PROFESSION. ACCORDINGLY, YOU WILL NOT BE ABLE TO RELY ON ANY APPLICABLE CONSUMER LAW OR BE ABLE TO INVOKE OR EXERCISE ANY CONSUMER RIGHTS.
You enter into this Agreement on behalf of a legal entity, and accordingly, you represent that you are a duly authorized representative with the authority to bind that legal entity and its affiliates to this Agreement, in which case the term "User" shall refer to such legal entity and its affiliates. If the individual accepting this Agreement is not a duly authorized representative of the legal entity and does not have such authority or does not agree with the terms and conditions of this Agreement, such individual must not accept this Agreement and may not use the Services. All references to "you" and "your" in this Agreement mean the person accepting this Agreement as a duly authorized representative of the legal entity for which the representative is acting. Capitalized terms in this Agreement will have definitions as set forth herein, in Section 1 below or in the applicable section where they are defined.
If User registers for a Free Trial of CAKE.com Services or for free services, the applicable provisions of this Agreement will also govern that Free Trial or those free services.
Your Service Provider
Our Services are owned, operated and provided by CAKE.com Inc., a company operating under the laws of State of California, located at 2100 Geng Road, Suite 210, Palo Alto, CA 94303, United States (referred to as "CAKE.com", "we", "us" or "our") and are provided to our Users in accordance with this Agreement. References to CAKE.com's "Affiliates" in this Agreement means all other affiliated companies of CAKE.com.
We may provide the Services through CAKE.com Inc., our Affiliate(s), or both. You may only use the Services and Software in accordance with the terms and subject to the conditions of this Agreement.
If you are located in North America (inclusive of the United States, Canada, Mexico, United States territories and possessions, and United States military bases, wherever located), your relationship is with CAKE.com Inc., a United States company, and the Agreement is governed by, and construed and interpreted in accordance with the laws of the State of California, U.S.A., unless pre-empted by U.S. federal law, without regard to conflict of law rules. If you are located outside of North America, your relationship is with CAKE.com AG, Oberallmendstrasse 18, 6300 Zug, Switzerland, which is acting as an authorized agent of CAKE.com Inc. and is entering into this contract in its capacity as agent for CAKE.com Inc., and the Agreement is governed by, and construed and interpreted in accordance with the laws of the State of California, U.S.A., unless pre-empted by U.S. federal law.
You may have additional rights under your local Law. We do not seek to limit those rights where it is prohibited to do so by Law. For purposes of this Agreement, "CAKE.com," "us," "we," and "our" mean either CAKE.com Inc., CAKE.com AG, or any other Affiliate, as applicable.
By accepting this Agreement, either by clicking a box indicating acceptance, i.e. by clicking "I Agree" or by using our Services, you agree to the terms of this Agreement, including the mandatory arbitration provision and class action waiver in Section 33, and any linked terms herein.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES, AS IT PROVIDES, AMONG OTHER THINGS: (i) in Section 33, that you and CAKE.com will arbitrate certain claims instead of going to court and that you will not bring class-action claims against CAKE.com; (ii) in Section 14, that certain terms and conditions apply with respect to recurring subscription Charges and automatic renewals; (iii) in Section 7, that CAKE.com may make modifications, deletions, and additions to this Agreement; and (iv) in Section 29, that you release CAKE.com from, and waive your right to recover from CAKE.com, certain damages. You acknowledge that you will only create an account or otherwise use the Services and Software if you agree to be legally bound by all terms and conditions herein. Your acceptance of this Agreement creates a legally binding contract between you and CAKE.com. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE THE SERVICES AND YOU MUST PROMPTLY CEASE USING THEM.
"Add-On" means third-party programs, applications, enhancements, products, and services created and offered by Add-On Providers through the CAKE.com Marketplace that are compatible and intended to be used with a Service through an application programming interface ("API") connection.
"Add-On Provider" means third-party developers who create Add-Ons.
"App" means, collectively and individually, the Clockify, Pumble, and Plaky mobile applications and mobile applications for any other Products and Software provided by us, now existing or later developed, which may be accessed with CAKE.com User Account.
"Authorized User" means an end user who has been invited, permitted, or caused to have access to a shared Workspace by a Business User, and who uses our Services based on the license lawfully obtained by the Enterprise.
"Business User" means the User who, on behalf of an Enterprise, owns or manages a Workspace.
"Content" means all of our Services' features and technical resources available to Users, including, but not limited to, data, text, photographs, videos, audio clips, software, scripts, technology, know how, designs, logos, graphics, images, illustrations, or any other content contained within the Services, and any interactive features generated, provided, or otherwise made accessible on or through our Services.
"Client" means the User who installs a full or partial copy of Server Product on the User's Device.
"End User" means the User who uses Services, Products and Software available by CAKE.com in any version (both Cloud Products and Server Products), in full or in part, including any updates, upgrades, enhancements, modifications, new features, programs and tools, based on the lawfully obtained license.
"Enterprise" means the legal entity which is the licensee of our Services and Software and Party to this Agreement.
"Extra Features" means features that are not included in the Free Plan and that require a subscription to one of the Subscription Plans.
"Free Plan" or "Free Trial" means the free version of our Services.
"Intellectual Property Rights" mean any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or another intellectual property right, and all similar or equivalent rights or forms of protection, in any part of the world.
"Marketplace" means the CAKE.com hosted site or location, including an online directory, catalog or marketplace of applications that interoperate with the Services, where CAKE.com allows third-party Add-On Providers to offer you Add-Ons to our Services.
"Law" means all U.S. or non-U.S. national, regional, state, provincial or local law, statute, rule, regulation, ordinance, administrative ruling, judgment, decree, order, directive, or policy applicable to CAKE.com's provision of and your use of the Services.
"Party" or "Parties" means CAKE.com and/or the Enterprise.
"Price Plan" means the description of a set of features (including pricing) for each Subscription Plan, available on the website for the applicable Service.
"Product Services" mean making Products and Software available by CAKE.com in any version (both Cloud Products and Server Products), in full or in part, including any updates, upgrades, enhancements, modifications, new features, programs and tools.
"Products" or "Software" means the respective software and apps made available to you as set forth in this Agreement and provided to you by your access and use of any CAKE.com websites, applications, widgets, and tools, which may be accessed with CAKE.com User Account, including without limitation, Clockify, Pumble, and Plaky, and any other products, software and services provided by us, now existing or later developed (with respect to Clockify - time tracking software and app, with respect to Pumble – the messaging software and app and with respect to Plaky - the software and app for managing projects, teams, and all types of work), and in particular: the browser app, all the desktop apps and mobile apps, its updates, upgrades, enhancements, modifications, extensions, new features and possible replacements, instruction sets and related documentation provided by CAKE.com, now existing or later developed, and other programs and tools, developed in conjunction therewith, including:
- Cloud-based service, whereby CAKE.com is making available the Software, the User Account and the Content on-demand (including the related mobile apps, desktop apps and extensions as well as other computer programs CAKE.com makes available in conjunction therewith) on-demand ("Cloud Product");
- Software installed on a licensed User's Device and hosted by that User ("Server Product"), as further explained herein; and
- Set of APIs that enable the User community, including application developers and website operators, to retrieve data from software or provide data to us ("Platform").
"Proprietary Rights" means any copyright, patent, trade secret, know-how, trademark, service mark, trade name, rights of publicity, or other intellectual property or proprietary rights.
"Renewal Term" means the renewal subscription term for a Service commencing after the Initial Subscription Term or another Renewal Term as specified in this Agreement.
"Seats" mean the number of Authorized Users in the plan, including both active and inactive users. The Enterprise may not invite new Authorized Users until it adds a sufficient number of corresponding Seats to its plan.
"Server Plan" means the pricing for the Server Product as agreed between the Parties.
"Services" means (i) any services, products and software made available to you, now existing or later developed, as set forth in this Agreement, and all services and products which may be accessed with CAKE.com User Account and provided to you by your access and use of any CAKE.com websites, applications, widgets, and tools, including Clockify, Pumble, and Plaky, and any other products, software and services provided by us, now existing or later developed; (ii) any free services provided by CAKE.com to you, in its sole discretion, and any services and products provided to you free of charge (as applicable) or under a free trial, now existing or later developed, in connection with this Agreement; (iii) any support services, customer support, discussion forums or other interactive areas or services provided by CAKE.com to you in accordance with this Agreement and our then-current policies and procedures, and (iv) any services and products made available online by CAKE.com, now existing or later developed, including any access to or use of the CAKE.com websites, web-based applications and products and including associated CAKE.com offline or mobile components.
"Subscription Plan" means different sets of paid plans associated with our Services that have a subscription fee.
"Subscription Term" means the period for which the Subscription Plan is made available to an Enterprise, provided the Enterprise adheres to the obligations arising from this Agreement. The Subscription Term can be either monthly or annual.
"Taxes and Fees" means all applicable sales, use, environmental or regulatory taxes (including VAT), fees, tariffs, duties (including customs duties), or other charges, surcharges or assessments of similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the foregoing) levied on or otherwise associated with the provision of the Services to you or your use thereof (exclusive of any income tax imposed on CAKE.com).
"User" means collectively and individually, Authorized User, Business User, End User and Client.
"User Account" or "CAKE.com Account" means an account associated with our Services, whose purpose is to allow the User to access and use our Services or certain parts of them and to create User Content, and which provides the User with CAKE.com-wide access to all Services and Products or Software provided by us, now existing or later developed, using the same username and password.
"User Content" means any content provided by the User in Workspace or anywhere else on our Services, including any entered, recorded, stored, used, controlled, modified, disclosed, transmitted, or erased information and data.
"User's Device" means (i) the designated system (server) capable of running the Software; or (ii) any hardware system, whether physical or virtual, with an internal storage device capable of running the Software.
"VAT" means any value added tax, and any other tax of a similar nature, whether imposed in a Member State of the European Union in substitution for, or levied in addition to, such tax, or imposed elsewhere, any Goods and Services Tax, PIS/COFINS, any similar indirect Tax or any Tax analogous thereto imposed in connection with, or otherwise relating to, the Services rendered by CAKE.com to you.
"Website" means the websites located at https://clockify.me, https://pumble.com, https://plaky.com and any other now existing or later developed CAKE.com Products and Software websites,as well as the related subdomains, mobile apps and desktop apps and all browser extensions collectively or each of them individually.
"Workspace" means the user environment provided via our Services, including private workspaces (only visible to the User that created it) or shared workspaces (visible to the User that created it and to the Users with whom it has been shared), as further explained at the following links: https://plaky.com/help/manage-project-in-plaky/workspace/overview/, https://clockify.me/help/users/workspaces and https://pumble.com/help/getting-started/workspaces/pumble-workspace/.
2. WHO CAN USE OUR SERVICES?
As noted above, our Services are intended for use by businesses and commercial entities only. You are not authorized to use our Services as a natural person for personal or household purposes or for a purpose unrelated to your trade, business, or profession, and you will not be able to rely on any applicable consumer Law or be able to invoke or exercise any consumer rights, nor to be granted a status of consumer under any applicable consumer Law.
As a Business User, you enter into this Agreement on behalf of your Enterprise, and you represent and warrant that:
- You affirm that you have the full legal authority to bind the Enterprise to this Agreement and you are otherwise fully able and competent to enter into and abide by the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement;
- You have read and understood this Agreement;
- You have the Enterprise's permission and authority to use the Enterprise's User Content;
- You agree to this Agreement on behalf of the Enterprise that you represent, and in the event that you, your Authorized Users, your Enterprise, or any third-party using credentials provided to your Enterprise violate this Agreement, the Enterprise agrees to be wholly responsible to us;
- You will be deemed to represent such Enterprise and the word "User" or "you" in this Agreement will refer to such Enterprise as a Party to this Agreement (including you as its Business Users and its Authorized Users, as applicable);
- You affirm that any Authorized User who you permit to use our Services is at least eighteen (18) years old and is of legal age to enter into this Agreement and to use the Services and Software;
- Any invitations sent or other permissions granted to access and use our Services will be limited to the number of Seats selected as part of your Subscription Plan or Free Plan; and
- You shall ensure that each Authorized User with whom you share your Workspace(s) will comply with all legal requirements applicable to the use of our Services and this Agreement.
- Your access may be terminated without warning if it comes to our attention that you are under the legal age to enter into this Agreement or are otherwise ineligible to enter into this Agreement or to use the Services and Software.
3. USER ACCOUNT; ACCOUNT INFORMATION; SHARING
3.1 Registration; Username and Passwords. You may need to register for a User Account to access some or all of our Services. Moreover, you may be required to provide information about yourself to register for and to access or use the Services.
If you register for a User Account, you must provide accurate account information and promptly update this information if it changes. You represent and warrant that any such information, including User Data, is and will remain accurate and complete, and that CAKE.com has no liability whatsoever for errors and omissions in your User Data. You may also be asked to choose a username and password to access or use the Services. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames. Furthermore, we may reject, or require that you change, any such username or password, in our sole discretion. You are entirely responsible for maintaining the security of your User Account and your username and password, and you agree not to disclose or make your username or password accessible to any third party and not to permit others to use your User Account credentials.
You are solely responsible for any Subscription Plan payments, or any related losses, damages, or expenses incurred by CAKE.com or a third party, or any activities that occur on your User Account. If you become aware of any unauthorized use of your User Account on our Services, you need to immediately notify us by sending an email to [email protected].
3.2 Prohibition on Sharing. You may not share the User Account, any login credentials or passwords regarding the foregoing or any other User rights with any other individual, unless it is explicitly stipulated and allowed by this Agreement or unless otherwise expressly pre-approved by CAKE.com in writing. Your right to use or access the Services is personal to you and not assignable or transferable. You may not assign or transfer any User Account or any other User rights with any other individual, except upon (i) an explicit authorization provided by this Agreement, as applicable, or (ii) CAKE.com's prior express written approval.
4. THE SERVICES
4.1 Availability. You may access and use the Service as made available to you, as long as you comply with this Agreement and the applicable Law. We will make the Services available to you pursuant to this Agreement and the applicable plan you have chosen. We will use commercially reasonable efforts to make the Services available, except (a) during planned downtime (of which we will give reasonable advance notice if practicable); (b) for any unavailability caused by circumstances beyond our reasonable control, including, for example, a force majeure event, performance issues with individual features, external network or equipment problems, or issues that are related to external apps or third parties; or (c) as necessary to update the Services to ensure their security and integrity and provide the Service.
To the extent permitted under applicable Law, we reserve the right at any time and from time-to-time to modify, suspend, upgrade, change, or discontinue, temporarily or permanently, the Services (or any part of them) with or without notice or liability to you. If you are dissatisfied with any modifications to our Services, you agree that your sole and exclusive remedy is to terminate your subscription and discontinue use of the Services.
4.2 Updates and System or Technical Requirements. From time-to-time we may issue updates to the Services. Depending on the update, you may not be able to use the Services until you have downloaded and installed the latest version of the Services, or hosting software, and accepted any new terms. Some updates may not be available to certain device models. In order to use the Services, you may be required to obtain certain updates and/or upgrades to your device. You are responsible for any costs and/or fees associated with any such updates/upgrades. You also understand and accept that (a) the device you use to access the Services will require certain software in order for the Services to work correctly and it is your responsibility to ensure that you have the required up-to-date software; (b) the Services have not been developed to meet your individual requirements, and it is therefore your responsibility to ensure that the functionality of the Services meets your requirements; and (c) you are responsible for obtaining the data network access, and the required device necessary (including any associated costs or fees), to use the Services and any updates thereto. CAKE.com does not guarantee the Services will function on any particular network or device. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
If you integrate our Services into your network by using our API, you must use efficient programming, which will not cause an excessive number of requests to be made in too short a period of time, as determined solely by CAKE.com. If this occurs, CAKE.com reserves the right to limit your API connections or suspend or terminate your User Account.
4.3 Location of Data Storage and Processing. In some cases, we may provide you with the option to choose the location in which we store and process your data. To the extent we provide that option to you, we will only process and store your data in the designated location and not transfer your data outside that jurisdiction, except in accordance with applicable Law.
5. APP ACCESS AND USE
You may download and install the App through authorized app store providers and/or operators (each an "App Store Provider") only. Your use of the App under this Agreement is also subject to any terms, rules, or policies of any App Store Provider from which you download the App ("App Store Terms"), and by accessing or downloading the App from the App Store of the App Store Provider, you are agreeing to App Store Terms. In the event of any conflict between this Agreement and any App Store Terms, this Agreement governs and this Agreement will prevail.
You and we acknowledge and agree that, if you have downloaded the App from the App Store of the App Store Provider, the respective App Store Provider, and App Store Provider's subsidiaries, are third-party beneficiaries under this Agreement and App Store Provider will have the right to enforce this Agreement against you directly.
We and our service providers are responsible for any maintenance and support of the App, and you acknowledge that any App Store Provider from which you download the App is not under any obligation to you to carry out any maintenance and/or support for the App itself.
You may only download and install the App onto a device that you own, or if you do not own the device, you must have the permission from the owner(s) of the device to do so. You accept responsibility under this Agreement for the use of the App, whether or not you own the device onto which the App is downloaded and installed. You also acknowledge that the owner(s) of the device onto which the App is installed may be charged by any relevant mobile network operator and/or internet service provider in relation to any data and/or mobile connectivity used by the App.
6. ADD-ON ACCESS, INSTALLATION, AND USE; THIRD-PARTY INTEGRATIONS AND OFFERINGS
6.1 CAKE.com allows Add-On Providers to offer you Add-Ons through the Marketplace, which may include third-party products or services, including, for example, non-CAKE.com applications and implementation and other services. In addition, the Services or Software may contain features designed to interoperate with non-CAKE.com applications and may interoperate, integrate, or be used in connection with third party offerings and services ("Third-Party Offerings").
You also understand that Add-Ons may collect, process, disclose, store, and/or delete your information, including personal information, in a manner that is different than CAKE.com, and that by using or installing an Add-On you are providing your information, including personal information to the Add-On Provider who will act as the controller or business, as defined by applicable privacy laws, with respect to any such information.
6.2 Notwithstanding the foregoing, CAKE.com shall collect and handle payment relating to your use of Add-Ons on behalf of Add-On Providers to the extent applicable. Add-On Providers will determine the amounts you must pay to use their Add-Ons, and you agree to pay those amounts in advance and in full, in U.S. dollars (USD), Euro (EUR) or Swiss francs (CHF), depending on the territory where you are domiciled and where is your official business address and, without deducting or allowing the deduction of any currency conversion, wire transfer, remittance, applicable tax, or other charges related to the payment. The fees are exclusive of any VAT or other taxes and public duties, except where explicitly stated to the contrary. It is each User's responsibility to bear all public duties related to the purchase of any Add-Ons.
6.3 All payments are handled by a third-party payment processor. CAKE.com is not responsible for the processing of your payment and shall not be liable for any matter in connection therewith. Paid fees are non-refundable, and you understand and agree that CAKE.com is not responsible for and has no authority to negotiate or respond to any payment disputes you have with the Add-On Provider.
6.4 CAKE.com allows Add-On Providers to offer Add-Ons to you in the Marketplace, but CAKE.com has no obligation to offer, continue to offer, delete, and/or maintain any particular Add-Ons. CAKE.com may, within its sole discretion, discontinue or make unavailable any Add-Ons in its Marketplace with no liability to you. CAKE.com will endeavour where practicable to provide thirty (30) days prior notice before discontinuing or making unavailable any Add-Ons, but you acknowledge and agree that that is not always possible because CAKE.com does not provide the Add-Ons.
CAKE.com cannot guarantee the continued availability of Add-Ons and Third-Party Offerings and Add-On Provider may cease providing them without entitling User to any refund, credit, or other compensation, if for example and without limitation, the Add-On Provider ceases to make the Add-Ons and Third-Party Offerings available for interoperation with the corresponding Service features in a manner acceptable to CAKE.com.
6.5 Disclaimer of Warranties With Respect to Add-Ons. CAKE.com is in no way liable or responsible for your installation or use of the Add-Ons or any claims, issues, or complaints you have relating to the Add-Ons. CAKE.com is not responsible for, and CAKE.com hereby disclaims any liability for, any act or omission of any Add-On Provider or any provider of Third-Party Offerings or the operation of any Add-Ons or Third-Party Offerings, including access to, modification of, or deletion of data, regardless of whether CAKE.com or a Service endorses, approves, or supports any such Add-Ons or Third-Party Offerings. CAKE.com is not responsible for any disclosure, modification or deletion of User Data resulting from access by such Add-On application or Add-On Provider.
By allowing Add-On Providers to offer Add-Ons to you in the Marketplace, CAKE.com in no way endorses or sponsors any Add-Ons or Add-On Providers and makes no representations or warranties with respect to any Add-Ons. Except as otherwise provided in a writing by us, we provide our Marketplace and any Add-Ons contained thereon "as is" and "as available" without warranties of any kind, either express or implied, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, because Add-On Providers operate and provide Add-Ons and not CAKE.com, CAKE.com does not represent or warrant that the Add-Ons and Third-Party Offerings are accurate, complete, reliable, current, error-free, secure, timely, or will be uninterrupted or of satisfactory quality. Furthermore, CAKE.com does not guarantee the interoperation, integration, or support of any Add-Ons or Third-Party Offerings. CAKE.com may, at any time, in its sole discretion, modify the Services or Software, which may result in the failed interoperation, integration, or support of Add-Ons and Third-Party Offerings. You understand and agree that CAKE.com cannot and does not represent or warrant that any Add-Ons are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Add-Ons. User is solely responsible for any damage User may suffer resulting from the use of or inability to use the Add-Ons. No oral or written information or advice given by CAKE.com or its authorized representatives shall create a warranty or in any way increase the scope of CAKE.com's obligations.
7. CHANGES TO THIS AGREEMENT
If you continue to use the Services after the effective date of the Changes, then you agree to the revised terms and conditions and revised Agreement. If you do not agree to the updated version of this Agreement, you must notify CAKE.com within 10 days from receipt of CAKE.com notification or you must stop using our Services, cancel your Subscription Plan (as applicable), and delete your User Account. If you fail to send such notification to CAKE.com or to delete your User Account, your continued access to or use of our Services after any such changes will constitute your acceptance of these Changes and will be deemed as acceptance to the new Agreement. If you do not wish to comply with the new Agreement and you send a notification with the refusal to comply within 10 days, the existing Agreement will continue to be valid until the expiration of the then-current billing term (for example, until the expiry of the year for which User has already made payment to CAKE.com), unless the Parties agree otherwise.
If a Change requires a specific notice pursuant to applicable Law, CAKE.com will provide you with such notice in the manner prescribed by applicable Law, together with any required notification of your rights.
To the extent required by applicable Law, if you are subscribed to any of the Subscription Plans, any provisions of this Agreement that cannot be changed through the notice described in this Section 7 will continue to be valid until the expiration of the then-current Subscription Term (for example, until the expiry of the month for which the Enterprise has already made payment to CAKE.com), unless the Parties agree otherwise (including consent arising from the User's continued use).
7.2 Other Changes. You agree that CAKE.com may modify, delete, and make additions to its guides, statements, policies, and notices, with or without notice to you, and for similar guides, statements, policies, and notices applicable to your use of the Services by posting an updated version on the applicable webpage. In most instances, you may subscribe to these webpages using an authorized email in order to receive certain updates to policies and notices.
8. INTELLECTUAL PROPERTY; LIMITED LICENSE
8.1 Software License. Our Services, including the Content contained therein, are owned by CAKE.com or our licensors and are protected by Intellectual Property Rights. Except as explicitly stated in this Agreement, all rights in and to the Services are reserved by us or our licensors. Subject to your compliance with this Agreement, your Enterprise is hereby granted a limited, revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable (except to its Authorized Users) and royalty-free license to access and use our Services for your business purposes. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein, will violate our Intellectual Property Rights, and will constitute a substantial breach of this Agreement. No ownership rights may be conveyed to any User, irrespective of the use of terms such as "purchase" or "sale" in this Agreement or anywhere on the Services.
If access to or use of any portion of the Services requires or allows for you to download, use, or install CAKE.com software ("Software"), CAKE.com grants you a limited, revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable, and royalty-free license to use the Software in object code format on a compatible device for your internal use only, solely to access and use the Services during the applicable Initial Subscription Term or then-current Renewal Term. You acknowledge and agree that your access to and use of the Services and Software under this Section 8.1 (and as otherwise provided in this Agreement) is revocable in CAKE.com's sole discretion.
8.2 Documentation License. Subject to the terms and conditions in this Agreement, CAKE.com grants you a limited, revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable, and royalty-free license for you to use CAKE.com-provided product and services documentation ("Documentation") solely for your internal business purposes in connection with use of the Services or Software during the applicable Initial Subscription Term or then-current Renewal Term.
8.3 Ownership. You acknowledge that, notwithstanding anything to the contrary herein, the Services are provided to you on a subscription basis, and the Software and Documentation is provided to you under a limited license, and neither has been sold to you. You also acknowledge that you have neither obtained nor will obtain any ownership or other right, title, or interest in or to the Services, Software, or Documentation or any Proprietary Rights relating thereto. Any copies of Software will remain the exclusive property of CAKE.com. The Software may include code that is licensed to you under third party license agreements, including open-source software made available or provided with the Software. Without limiting the generality of the foregoing, CAKE.com owns all right, title, and interest in and to all upgrades, enhancements, new releases, changes, and modifications to the Services or Software, together with all ideas, architecture, algorithms, models, processes, techniques, user interfaces, database design and architecture, and "know-how" embodying the Services and Software. Under no circumstances will you be deemed to receive, have, or be granted title to all or any portion of the Services, Software, or Documentation, title to which at all times vests exclusively in CAKE.com. None of the Services, Software, or Documentation, or any component thereof, is or shall be deemed to be a "work made for hire," as that term is defined in 17 U.S.C. § 101.
8.4 Ownership of CAKE.com Property. CAKE.com, its affiliates, its licensors, and suppliers (as applicable) own and shall retain ownership of (i) all Service Generated Data (as provided in Section 20.6), (ii) all Feedback (as provided in Section 23), (iii) the Services and Software, and any underlying or other technology and intellectual property embodied or contained in, used to provide or support, or otherwise associated or provided in connection with, the Services or Software, including all Proprietary Rights related thereto, and (iv) all trade names, trademarks, service marks, trade dress, logos, icons, insignia, symbols, interface and other designs, domain names and corporate names, and the like (whether registered or unregistered) ("CAKE.com Marks") associated or displayed with the Services or Software, together with the goodwill associated with any of the foregoing CAKE.com Marks (all of the foregoing, collectively "CAKE.com Property"). You may not frame or utilize framing techniques to enclose any CAKE.com Marks, or other proprietary materials or information (including images, text, page layout, or form) of CAKE.com without our express prior written consent. You may not use any meta tags or any other "hidden text" utilizing CAKE.com Marks without our express prior written consent. No rights to use the CAKE.com Marks are provided to you herein.
The CAKE.com, Clockify, Plaky, Pumble, and other CAKE.com Marks and logos, product or service names, slogans, and the look and feel of CAKE.com Services are trademarks of CAKE.com and may not be copied, imitated, or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names, and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by us.
8.5 Reservation of Rights. CAKE.com reserves all rights not expressly granted to you in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to you or any third party, any Proprietary Rights or other right, title, or interest in or to any CAKE.com Property or other intellectual property provided in connection with this Agreement or the Services or Software.
In the event that anyone brings a claim that the Services or any part of them, or your possession and/or use, infringes a third party's Intellectual Property Rights, the third-party App Store Provider will not be responsible for any investigation, defence, settlement, and discharge of any such claim.
Unless you expressly object and disclaim your acceptance and withdraw your consent with this Section 9 prior to your entering into this Agreement, you hereby grant to CAKE.com a nonexclusive, nontransferable, non-sublicensable license to disclose your Enterprise name and logo as a User and/or subscriber of our Services in CAKE.com's marketing materials and on CAKE.com's public website, in each case in accordance with any branding guidelines you may provide to CAKE.com.
Furthermore, unless you expressly object and disclaim your acceptance and withdraw your consent with this Section 9 prior to your entering into this Agreement, you grant CAKE.com permission and the right to (i) identify you as a customer and to use your logo across CAKE.com marketing materials (e.g., the CAKE.com public website, emails, presentations, brochures), and (ii) develop content around your experience as a CAKE.com customer (e.g., a written case study or video case study). Any content created under the foregoing clause (ii) of this Section 9 will be created in cooperation with you and used only upon your written approval. CAKE.com will use any trademarks provided by you pursuant to clause (i) of this Section 9 in accordance with any reasonable brand guidelines that you provide to us in writing prior to our use.
10. USE RESTRICTIONS; RESPONSIBILITY FOR USE
10.1 Use of the Services; User Responsibility. You agree to use the Services only in compliance with all applicable local, state, national, and international laws, rules, and regulations. You will, and you will cause your End Users, Business Users and Authorized Users to, abide by and ensure compliance with, all the terms and conditions of this Agreement. Use of the Services is void where prohibited. You are responsible for your and your End Users`, Business Users` and Authorized Users' access to and use of the Services. You are responsible for the activities of all your End Users, Business Users and Authorized Users, including ensuring that all End Users, Business Users and Authorized Users will comply with the terms and conditions of this Agreement and any applicable CAKE.com policies. You acknowledge that you remain liable for the acts and omissions of any third party that you allow, enable, or otherwise provide access to the Services, whether or not such access was expressly permitted by CAKE.com.
10.2 Violations byUsers or Third Parties. CAKE.com assumes no responsibility or liability for violations of this Agreement by End Users, Business Users and Authorized Users or any other third party that you allow, direct, or enable to access the Services. If you become aware of any violation of this Agreement in connection with use of the Services by any person, you must contact CAKE.com at [email protected].
10.3 Liability for Content and Data. Under no circumstances will CAKE.com be liable in any way for any data or other content viewed while using the Services, including any errors or omissions in any such data or other content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data or other content.
10.4 Investigation of Use. CAKE.com may investigate any complaints and violations that come to our attention and may take any action, in its sole discretion, including issuing warnings, suspending or disconnecting the Services, removing the applicable data or other content, terminating accounts or End Users, Business Users and Authorized Users profiles, or taking other reasonable actions in its sole discretion.
11. PROHIBITED USES
You agree that you will not (and will not permit any End User, Business User or Authorized User, or other third party to) directly or indirectly: (i) access or use the Services or Software in any way that is not expressly permitted by this Agreement or use the Services or Software in violation of our policies (which are hereby incorporated into this Agreement); (ii) cause, permit, or authorize the modification, copy, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of the Services or Software; (iii) sell, assign, rent, lease, or grant rights in the Services or Software, including, without limitation, through sublicense, to any other person or entity; (iv) make any Service or Software available to anyone other than Users, or use any Service or Software for the benefit of anyone other than User or its affiliates, unless expressly stated otherwise in this Agreement or (v) use the Services or Software for any unlawful, prohibited, abnormal, or unusual activity as determined by CAKE.com in its sole discretion.
Furthermore, you must not (nor permit any End User, Business User or Authorized User or other third party to): (i) use the Services or Software in any unlawful manner, for any unlawful purpose, or to act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Services or Software or any operating system used by the Services or to engage in activity that is illegal under applicable Law, fraudulent, false, or misleading; (ii) engage in any activity or use the Services, Software or your User Account or interfere with other Users in any manner that could damage, disable, overburden, impair, compromise or otherwise interfere with or disrupt the Services, Software or our systems or security or any servers or networks connected to the Services or CAKE.com security systems; (iii) use the Services or Software in violation of any CAKE.com policy or in a manner that violates applicable Law, including anti-spam, import and export control, intellectual property, privacy, anti-terrorism, anti-bribery, foreign corrupt practices, and any other Laws requiring the consent of data subjects; (iv) collect or harvest any information or data from the Services or Software or our systems or attempt to decipher any transmissions to or from the servers running the Services or Software; (v) use the Services or Software via use of a robot, spider, or other automated device to monitor or copy the Services or Software or any information provided by the Services or Software; (e) send, knowingly receive, upload, download, use or re-use any material which does not comply with this Agreement; (vi) transmit, or procure the sending of, any unsolicited or unauthorized advertising or promotional material or any other form of similar solicitation (spam); (vii) modify, copy, customize, disassemble, decompile, create derivative works of, create improvements, derive innovations from, reverse engineer, or attempt to gain access to any underlying technology of the Services or Software, or any part, feature, function or user interface thereof, including any source code, process, data set or database, management tool, development tool, server or hosting site, except to the extent permitted by applicable Law; (viii) knowingly or negligently use the Services or Software in a way that abuses, interferes with, or disrupts CAKE.com's networks, your account, or any other user rights, or the Services; (ix) interfere with or disrupt the integrity or performance of the Service or Software or third-party data contained therein; (x) transmit through the Services or Software any material that may infringe, misappropriate, or violate the Proprietary Rights of third parties; (xi) frame or mirror any part of any Service, Software or User Content, other than framing on User's own intranets or otherwise for its own internal business purposes or as permitted under this Agreement; (xii) build or benchmark a competitive product or service, or copy any features, functions, or graphics of the Services or Software; (xiii) use the Services or Software for the development, production, or marketing of a service or product substantially similar to the Services or Software or build a product or service using similar ideas, features, functions or graphics of the Service or Software, or copy any ideas, features, functions or graphics of the Service or Software or determine whether the Services or Software are within the scope of any patent; (xiv) use the Services or Software to store, transmit or communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would infringe or violate the Proprietary Rights or privacy rights of any party, or is otherwise unlawful or tortious, or would give rise to civil or criminal liability, under any applicable Law; (xv) upload or transmit any software, User Content, or code that does or is intended to harm, disable, destroy, or adversely affect performance of the Services or Software in any way or which does or is intended to harm or extract information or data from other hardware, software, networks, or other users of the Services or Software, or use a Services or Software to store or transmit Malicious Code; (xvi) remove, delete, alter, or obscure any Proprietary Rights notices provided on or with the Services or Software, including any copy thereof; (xvii) make, use, or offer the Services or Software for lease, rent, or sale, or reproduce, resell, distribute, publish, display, assign, transfer, licence, sublicense, lend, use on a timeshare or service bureau basis, include any Service or Software in a service bureau or outsourcing offering, or use the Services or Software for any commercial or other purpose that is not expressly permitted by this Agreement; (xviii) make available the Services or Software, or any features or functionality thereof, to any third party for any reason or by any manner, unless expressly permitted by this Agreement or otherwise expressly agreed to in writing by you and CAKE.com; (xix) attempt to gain unauthorized access to any Service, Software or User Content or its related systems or networks, or permit direct or indirect access to or use of any Services, Software or User Content in a way that circumvents a contractual usage limit, or use any Services or Software to access, copy or use any of CAKE.com intellectual property except as permitted under this Agreement, or (xx) use the Services for any other purpose that is to CAKE.com's detriment or commercial disadvantage.
You acknowledge and agree that you are solely responsible, and CAKE.com has no responsibility or liability to you or any other person or entity for, any breach by you of this Agreement or for the consequences of any such breach.
Enforcement of this Section 11 is solely at CAKE.com's discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 11 does not create any private right of action on the part of any third party or any reasonable expectation that the Services or Software will not contain any content that is prohibited by such rules.
12. SYSTEM REQUIREMENTS; CHANGES
Your use of the Services and Software requires one or more compatible devices, Internet access, and certain third-party software, and you may be required to obtain updates or upgrades from time to time for Software or third-party software, which may result in additional costs to you. Because use of the Services and Software involves hardware, software, and Internet access, your ability to access and use the Services and Software may be affected by the performance of the foregoing. High-speed Internet access is recommended. You are solely responsible for any fees that may apply to your access to or use of the Services and Software, including fees for hardware, software, Internet access, or text messages. You agree that the foregoing requirements are your responsibility, and CAKE.com may, in its sole discretion, discontinue availability or compatibility of the Services or Software, on a particular operating system, device, or platform.
13. COMPLIANCE WITH LAWS
You are solely responsible for your and your End Users`, Business Users` and Authorized Users` compliance with all Laws that apply to your and your End Users`, Business Users` and Authorized Users` access to and use of the Services and Software, including Laws requiring you to provide proper End Users`, Business Users` and Authorized Users` notifications and to obtain proper End Users`, Business Users` and Authorized Users` consents, which may be necessary to allow CAKE.com and CAKE.com's authorized third parties to access, use, and share User Content. You shall comply with and ensure that all End Users, Business Users and Authorized Users comply with, all applicable Laws in connection with your obligations under this Agreement, including access to and use of the Services and Software.
By creating a User Account within our Services, you automatically start your Free Plan. You may choose to switch from the Free Plan to any Subscription Plan at any time. Once you choose to do so, we will start to apply the respective subscription fees in accordance with the applicable Subscription Plan. Your Subscription Plan will continue for the length of the Subscription Term you select and will automatically renew for additional periods of the same length ("Renewal Term") unless you cancel it and unless applicable Law prohibits automatic renewal. Each Renewal Term for the Services will begin automatically at the end of the then-current initial Subscription Plan or Renewal Term. Your subscription fee in effect at the time of your automatic renewal will continue for your Renewal Term unless we notify you at least thirty (30) calendar days in advance of the end of the Subscription Term i.e. prior to the commencement of the next Renewal Term for a yearly Subscription Plan or ten (10) calendar days in advance of the end of the Subscription Term i.e. prior to the commencement of the next Renewal Term for a monthly Subscription Plan, or within the notice period required by applicable Law, of a new subscription fee in which case the new subscription fee will apply to the Renewal Term. You can cancel your Subscription Plan at any time via your User Account settings and your Subscription Plan will terminate upon the expiry of the then-current Subscription Term.
A Subscription Plan is connected to a single Workspace. After subscribing to a Subscription Plan to one or more Workspaces, a User may continue to have multiple Workspaces subscribed to a Free Plan.
Subscription Plans are being charged based on the number of Seats and number of Workspaces with Extra Features within such Subscription Plan.
Any statutory rights you may have under the applicable Laws to terminate your Services at an earlier time during the Subscription Plan or any given Renewal Term remains unaffected by this clause, and, if required by applicable Law, we will send you a reminder notice prior to the commencement date of the Renewal Term (and in accordance with the notice periods specified in this Agreement or other such deadline set by applicable Law that may apply to you) reminding you of your right to terminate the affected Services and how to do so.
Subscription Plans for our Services are charged either monthly or annually (your Subscription Term), at your selection. All payments for the Subscription Plan are due in full, and in advance, no later than the first day of the applicable Subscription Term.
15. PROMOTIONAL TRIAL-PERIODS (FREE TRIAL)
CAKE.com may offer a free trial period ("Free Trial") of any or part of our Services. If User registers for a Free Trial, CAKE.com will make the applicable Service(s) available to User on a trial basis free of charge until the earlier of (a) the end of the Free Trial period for which User registered to use the applicable Service(s), or (b) the start date of any Subscription Plan ordered by User for such Service(s), or (c) termination by CAKE.com in its sole discretion.
CAKE.com reserves the right, in its sole discretion, to determine the eligibility of a User for a Free Trial as well as to determine whether to revoke any such Free Trial. Free Trial Users may, at any time choose not to continue to a Subscription Plan by cancelling before the end of the Free Trial. If you do not cancel, at the end of your Free Trial, your User Account will be automatically subscribed to the applicable Subscription Plan, and you hereby authorize CAKE.com to charge your designated account at the rates in effect at that time. TO CANCEL YOUR SUBSCRIPTION AND AVOID BEING CHARGED, YOU MUST CANCEL BEFORE THE END OF THE FREE TRIAL PERIOD.
CAKE.com may require a User to have a valid payment instrument, such as a credit card or other permitted payment method, before using the Free Trial. In this case, we may validate that payment method, including by requesting a temporary authorization from the financial institution issuing your payment instrument. If we determine that your payment instrument is invalid, without limiting any of our other rights, we may revoke any benefits you may have received as part of the Free Trial.
Any data User enters into the Services, and any customizations made to the Services by or for User, during User's Free Trial will be permanently lost unless User purchases a subscription to the same Services as those covered by the trial, purchases applicable upgraded Services, or exports such data, before the end of the Free Trial period. User cannot transfer data entered or customizations made during the Free Trial to a Service that would be a downgrade from that covered by the trial; therefore, if User purchases a Service that would be a downgrade from that covered by the trial, User must export User data before the end of the trial period or User data will be permanently lost.
Free Trials are available to new Enterprises only i.e. to Enterprises which create a User Account within our Services for the first time.
NOTWITHSTANDING THE "DISCLAIMER OF WARRANTIES" SECTION, "LIMITATION AND EXCLUSION OF LIABILITY" SECTION AND "INDEMNIFICATION" SECTION BELOW, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY AND CAKE.COM SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER THE APPLICABLE LAW IN WHICH CASE CAKE.COM'S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $100.00. WITHOUT LIMITING THE FOREGOING, CAKE.COM AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO USER THAT: (A) USER'S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET USER'S REQUIREMENTS, (B) USER'S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE "LIMITATION AND EXCLUSION OF LIABILITY" SECTION BELOW, USER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO CAKE.COM AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF USER'S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY USER OF THIS AGREEMENT AND ANY OF USER'S INDEMNIFICATION OBLIGATIONS HEREUNDER.
USER SHALL REVIEW THE APPLICABLE SERVICE'S DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.
16. USERS OF PREVIOUS PLANS
This section applies to the Users who have subscribed to a particular Product and have continued to use Product per any of the paid plans that are no longer offered on Product (the "Previous Plans").
These Users are entitled to continue to use the Product Services under one of the Previous Plans and the previous version of this Agreement shall remain applicable to such Users in sections which define Previous Plan, the subscription and payment for such plans. In all other aspects, the current version of this Agreement will be applicable.
If the User decides to cancel their subscription to one of the Previous Plans or delete the User Account on the particular Product, from the moment of cancellation or deletion of the User Account, the User will not be able to subscribe to any of the Previous Plans anymore, but only to the available plans within the current Price Plan.
The User may not upgrade or downgrade any Previous Plans, except for the previous enterprise plan in which the User may freely change the number of Seats.
Notwithstanding the provisions in this Section, CAKE.com retains the sole and exclusive right to cancel Previous Plans at any time.
17.1 Charges. You hereby authorize CAKE.com to charge to your designated account, relating to the Services and Subscription Plan you select, and you agree to pay all such fees in U.S. dollars (USD), Euro (EUR) or Swiss francs (CHF), depending on the territory where you are domiciled and where is your official business address, and in accordance with this Agreement. You agree that CAKE.com may charge your credit card, debit card, or other payment mechanism selected by you and approved by CAKE.com ("Payment Method") for all amounts due and owing in connection with your use of the Services, as ordered by or for you through the Services, including set up fees, one-time fees, non-recurring fees, overages, per-use charges, subscription fees, recurring fees, and any other fees and charges associated with the Services or your account ("Charges").
All payments are handled by a third-party payment processor. CAKE.com is not responsible for the processing of your payment and shall not be liable for any matter in connection therewith.
All Charges and sums payable to CAKE.com and all payments for the Subscription Plan hereunder shall be paid in full, and in advance of the Subscription Term, by the first day of the billing period, without deducting or allowing the deduction of any currency conversion, wire transfer, remittance, applicable tax, or other charges related to the payment. As provided in Section 18, all Charges are exclusive of any VAT or other taxes and public duties, except where CAKE.com has explicitly stated to the contrary. It is each User's responsibility to bear all public duties related to the purchase of the Service.
You agree to promptly update your Payment Method to allow for timely payment. Changes made to your Payment Method will not affect Charges that CAKE.com submits to your chosen Payment Method before CAKE.com could reasonably act on your changes. Additionally, you agree to permit CAKE.com to use any updated Payment Method information provided by your issuing bank or the applicable payment network and to charge your current primary Payment Method by using the details of such Payment Method saved in our system, even if such Payment Method is declined. CAKE.com further reserves the right to use your backup Payment Method to the extent one is provided. By adding a backup Payment Method, you authorize CAKE.com to process any applicable Charges on your backup Payment Method if your primary Payment Method is declined.
User must keep all the billing data in the User Account complete and accurate (such as a change in billing address, credit card number, or credit card expiration date). If User fails to provide or properly update any of the foregoing information, User agrees that CAKE.com may continue charging for the Services unless User has terminated the Subscription Plan as set forth herein and that User is still liable for the amounts charged. If your default Payment Method is declined for any reason, we may at our sole discretion, deny access to the Subscription Plan immediately.
17.2 Payment Authorization and Payment Roles. Anyone who subscribes to our Services, including anyone who has permitted or caused another person or Enterprise to participate in a Subscription Plan or who permits or causes another person to make an order on their behalf, is deemed to have agreed to and accepted liability for the payments under such Subscription Plan. The same rules will apply to anyone who permits to be designated as a payer for a Subscription Plan.
For the purpose of this Agreement, all Business Users and Authorizes Users are categorized as Owners or Admins, according to their payment roles, whereas Business Users are designated as Owners and Authorized Users are designated as Admins.
Business User, who on behalf of an Enterprise, owns or manages a Workspace ("Owner") is entitled to authorize and make payments to CAKE.com for all amounts due and owing in connection with your use of the Services. Additionally, each Authorized User, as an end user who has been invited, permitted, or caused to have access to a shared Workspace by a Business User, and who uses our Services based on the license lawfully obtained by the Enterprise ("Admin") is entitled to authorize and make payments to CAKE.com independently, for all amounts due and owing in connection with your use of the Services.
Upon designation as an Authorized User by a Business User, Authorized User as Admin is granted authority for independent payment authorization and payment execution and is deemed to have agreed to and accepted liability for the payments under the respective Subscription Plan and to have agreed to and accepted to be designated as a payer for the Subscription Plan. Authorized User or Admin is entitled to perform and execute all required payments to CAKE.com, on an individual basis, solely and independently.
Each Authorized User and Business User is entitled and authorized to use the Payment Method which is already designated and selected by other Authorized Users and Business Users and approved by CAKE.com, and is entitled and authorized to use all related payment data relating to inserted credit cards, debit cards, or other payment mechanism selected by Authorized Users and Business Users and approved by CAKE.com, for the purpose of performing and executing all required payments to CAKE.com.
17.2 Non-Cancellable and Non-Refundable Charges. You agree that all payments are non-cancellable for the Initial Subscription Term or the then-current Renewal Term, as applicable, and are final and non-refundable, unless otherwise agreed to by CAKE.com or required by applicable Law.
If this Agreement or a Subscription Plan is terminated or varied during a certain Subscription Term, the User shall not be entitled to any refund concerning that Subscription Term. In addition, payments made for future Subscription Terms will not be refunded unless the Parties explicitly agree otherwise.
Unless you notify us before a charge that you want to cancel or do not want to automatically renew your subscription, you understand it will automatically renew, and you authorize us (without notice to you, unless required by applicable Law) to collect the then-applicable Charges and any taxes using any payment method we have for you.
17.3 Changes to Pricing. Prices set out in the Price Plan are subject to change at any time and CAKE.com may change prices for the Services at any time, in its sole discretion. For changes to your Charges, CAKE.com will provide you with not less than (i) seven (7) calendar days prior notice, or (ii) the time period prescribed by applicable Law (each, (i) and (ii), a "Rate Change Notice"). Rate Change Notice may be sent to you by email to your most recently provided email address or posted on the CAKE.com website or on the Services or by any other manner chosen by CAKE.com in its commercially reasonable discretion. You will be deemed to have received any such notice that is posted on the CAKE.com website or on the Services on the day following the date it was posted.
To the extent permitted under applicable Law, any changes to your Charges will become binding on the Enterprise upon the following conditions: (i) CAKE.com has sent Rate Change Notice in advance of any such change; (ii) the Enterprise did not unsubscribe from the Subscription Plan within a Rate Change Notice period or by the end of the then-current Subscription Term, whichever date is later.
Unless the Parties explicitly agree otherwise, any changes to your Charges will be effective upon the commencement of your next Renewal Term or other date calculated in accordance with applicable Law. If you seek to terminate or modify the Services affected by a Rate Change Notice, then you must terminate or modify your affected Services within the applicable Rate Change Notice time period or by the end of the then-current Subscription Term. If you do not terminate or modify the affected Services within the applicable Rate Change Notice time period or by the end of the then-current Subscription Term, then you shall be deemed to have automatically accepted the change to your Charges, unless your affirmative, express consent to such change is required under applicable Law. If required by applicable Law, we will remind you of your termination and modification right, any applicable time-period, and the consequences of not terminating.
17.4 Collection of Charges. You agree that if CAKE.com is unable to collect the Charges for the Services through your Payment Method, CAKE.com may, to the extent not prohibited by applicable Law, take any other steps it deems necessary to collect such Charges from you and that you will be responsible for all costs and expenses incurred by CAKE.com in connection with such collection activity, including collection fees, court costs, and attorneys' fees. You further agree that, to the extent not prohibited by applicable Law, CAKE.com may collect interest at the lesser of 1.5% per month or the highest amount permitted by applicable Law on any Charges not paid when due.
17.5 Support Services and Updates. CAKE.com will provide, at no additional costs, (i) standard support as set forth in our then-current Agreement and related documentation, and (ii) standard updates to the Services and Software that are made generally available by CAKE.com to similarly situated Users in the same geographic region during the Initial Subscription Term or any applicable Renewal Term. In accordance with applicable Law and the terms of this Agreement, CAKE.com reserves the right to (a) modify its standard support and charge you for standard support and (b) charge you for any updates to the Services and Software or for any premium features or functionality.
17.6 Termination or Suspension for Nonpayment. Without limiting our rights in any other section of this Agreement, if any failure to pay Charges continues for five (5) calendar days following the due date, CAKE.com may terminate, suspend, or disconnect your Services immediately and without prior notice.
17.7 Billing Communications. You agree that CAKE.com may contact you via email or otherwise at any time with information relevant to your use of the Services, including billing communications, regardless of whether you have opted out of receiving marketing communications or notices.
17.8 Withdrawal; Cooling-Off Period. If under applicable Law you have a time-period to terminate your Services based on a right of withdrawal, or a cooling-off period, you may request to terminate the affected Services in accordance with applicable Law and, if applicable, receive a pro rata refund of any prepaid and unused Charges. If the Services begin before any withdrawal or cooling-off period, or you fail to terminate your Services during the right of withdrawal or cooling-off period, then you acknowledge that you lose any termination rights under this Section 17.8. Nothing in this Section 17.8 is intended to limit or exclude any of your rights that cannot be limited or excluded under applicable Law.
18.1 Taxes and Fees. Unless otherwise expressly specified by CAKE.com as required by applicable Law, all prices shown by CAKE.com and Charges for the Services on your account are exclusive of Taxes and Fees. Where applicable, Taxes and Fees will be charged on the invoices issued by CAKE.com in accordance with applicable Laws. CAKE.com, in its sole discretion, will (i) calculate the amount of Taxes and Fees due, and (ii) change such amounts without notice to you.
18.2 VAT Invoices. If required by Law, CAKE.com will issue a VAT invoice, or a document that the relevant taxing authority will treat as a VAT invoice, to you. You agree that this invoice may be issued electronically.
18.3 Tax Exemptions. If you are exempt from any Taxes and Fees, you will provide CAKE.com with all appropriate tax exemption certificates, and/or other documentation satisfactory to the applicable taxing authorities, to substantiate such exemption status. CAKE.com reserves the right to review and validate tax exemption documentation. If the tax exemption documentation is not provided or not valid, CAKE.com reserves the right to charge applicable Taxes and Fees to you.
18.4 Payment of Taxes and Withholding. You will pay CAKE.com, and you are solely responsible for, any applicable Taxes and Fees. All payments made by you to us under this Agreement will be made free and clear of any deduction or withholding Taxes and Fees, as may be required by applicable Law. If any such deduction or withholding Taxes and Fees (including domestic or cross-border withholding taxes) are required on any payment, you will pay such additional amounts as necessary, such that the net amount received by us is equal to the amount then due and payable under this Agreement. We will provide you with such tax forms as reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement. You also agree to provide CAKE.com with withholding tax certificates, upon CAKE.com's request, to the extent a withholding certificate is required to be sent to CAKE.com under applicable Law, and you agree that CAKE.com may provide your withholding tax certificate to the appropriate taxing authority without further notice to you.
18.5 Value-Added Tax – Customer Obligations. If Taxes and Fees are due towards the taxing authorities by you instead of CAKE.com, through the reverse charge or other similar mechanism, you will provide CAKE.com with all appropriate evidence for CAKE.com to demonstrate your business nature, such as a valid VAT registration number (or similar information required under the relevant VAT Laws). CAKE.com reserves the right to review and validate your VAT registration number. If the VAT registration number is not valid, CAKE.com reserves the right to nevertheless charge the applicable VAT to you. For the avoidance of doubt, if VAT is due by you to a taxing authority, through the reverse charge or other similar mechanism, you are solely responsible for paying those amounts to the relevant taxing authority, such that CAKE.com receives the full amount of payment required.
18.6 Tax Determination. Tax determination is principally based on the location where you have established your business based on your User Data. This location will be defined by CAKE.com as your ‘Sold To' address. CAKE.com reserves the right to cross reference this location against other available evidence to validate whether your location is accurate. If your location is inaccurate, CAKE.com reserves the right to charge you any outstanding Taxes and Fees.
18.7 Use and Enjoyment. If you subscribe to any Services, and those Services are used and enjoyed by a subsidiary of you in a country that is different from your location as determined pursuant to Section 18.6, you confirm that, where required, you will treat this as a supply to your subsidiary. If you subscribe to the Services and those Services are used and enjoyed by a branch or a subsidiary of you in a country that is different to your location as determined pursuant to Section 18.6, you acknowledge that you will inform CAKE.com of the Services that have been allocated, and you acknowledge that CAKE.com reserves the right to charge Taxes and Fees based on the use and enjoyment of those Services.
18.8 Disclosures to Taxing Authorities. In accordance with applicable tax Law, and notwithstanding any of CAKE.com's notice obligations that may arise under this Agreement, we may disclose User information, including User Confidential Information, to a tax authority without notice to you before or after the disclosure.
19. UPGRADING OR DOWNGRADING PLAN
You may upgrade your plan at any time via your User Account. If you upgrade your plan to include Extra Features or additional Extra Features, you will be immediately charged for the chosen upgrade, on a pro rata basis, and initiate a new Subscription Term. If you upgrade from a monthly Subscription Term to an annual Subscription Term, you will be immediately charged for and initiate the annual Subscription Term on an ongoing basis. If you upgrade your plan to include additional Seats, you will be charged for the new Seats on a pro rata basis for the then-current Subscription Term and the total (increased) number of Seats for the next Subscription Term.
You may downgrade your Subscription Plan or downgrade to a Free Plan at any time via your User Account settings, and your plan will change upon the expiry of the then-current Subscription Term, with limited exceptions.
If you would like to reduce or eliminate the number of Extra Features on your plan, after your then-current Subscription Term expires, your access to the Extra Features offered in the current Subscription Plan will be denied, and you will be charged for the downgraded Subscription Plan, based on the Subscription Term you choose. If you would like to change from an annual plan to a monthly plan, after your annual Subscription Term expires, you will be charged for the monthly Subscription Term. If you would like to reduce the number of Seats on you plan, after your then-current Subscription Term expires, you will be charged based on the new number of Seats for the next Subscription Term. There will be no refund for any reduction of the number of Extra Features or Seats during the then-current Subscription Term. Any reduction of Extra Feature or Seats will occur effective in the subsequent Renewal Term.
If you change from an annual Subscription Plan to a monthly Subscription Plan with additional Extra Features, you will obtain immediate access to the additional Extra Features in the upgraded Subscription Plan. The previous payment made for the annual plan will be calculated on a pro rata basis and, depending on the balance, you may obtain credit, or you may be charged immediately for the outstanding payment for the monthly Subscription Plan. In the event you have the remaining credit, such credit may be applied against the amounts payable for the next Subscription Term. No refunds will be provided.
20. USER CONTENT; DATA USAGE, LICENSES AND RESPONSIBILITIES
20.1 User Content. Data, content, communications, messages, files, documents, or other materials that you or your End Users, Business Users or Authorized Users generate or provide in connection with the Services or Software, together with any resulting transcripts, recordings, outputs, visual displays, or other content, is referred to as "User Content".
Except for the license you grant above, as between you and CAKE.com, you retain all rights in and to your User Content, excluding any portion of the Services included in your User Content.
Depending on your User Account settings, when you post or otherwise share User Content on or through our Services, you understand that your User Content and any associated information may be visible to others.
Enterprises are also solely responsible for all text, documents, User Data, or other User Content or information uploaded, processed, entered, or otherwise transmitted in connection with your use of the Services. By accepting this Agreement, you warrant, represent, and covenant that any such User Content: (i) will not be defamatory, obscene, offensive, or otherwise objectionable; (ii) will not infringe the Intellectual Property Rights or other rights (such as privacy or confidentiality) of any third party; (iii) will comply with applicable Laws; (iv) will not promote violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; (v) will not be likely to deceive any person; (vi) will not be threatening, abusive, or cause annoyance, inconvenience, or needless anxiety; (vii) will not be likely to harass, upset, embarrass, alarm, or annoy any other person; (viii) will not impersonate any person, or misrepresent your identity or affiliation with any person; (ix) will not give the impression that it emanates from us, if this is not the case; and (x) will not advocate, promote, or assist any unlawful act such as (by way of example only) copyright infringement or computer misuse. Although we may not actively monitor User Content, we have the right (but are under no obligation) to remove any User Content if, in our opinion, it is in breach of this Agreement or is otherwise inappropriate.
In the event CAKE.com becomes aware of any illegal User Content, activities that infringe anyone's Intellectual Property Rights, privacy, or any other right, or activities that infringe this Agreement or applicable Law, CAKE.com may, in its sole discretion, disable, close, temporarily or permanently, or limit access to any User Account without any notice. CAKE.com may not be liable for any loss, damages, or undesirable consequences resulting from such action.
Our Services may include content provided by third parties, including materials provided by other users and third-party licensors. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by CAKE.com, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of CAKE.com. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
CAKE.com does not use any of your audio, video, chat, screen sharing, attachments or other communications-like User Content (such as poll results, whiteboard and reactions) to train CAKE.com or third-party artificial intelligence models.
20.3 Our Obligations Over Your User Content. CAKE.com will maintain reasonable physical and technical safeguards to prevent the unauthorized disclosure of or access to User Content. CAKE.com will notify you if it becomes aware of an unauthorized disclosure or unauthorized access to User Content. CAKE.com may use consultants, contractors, service providers, sub processors, and other CAKE.com-authorized third parties in connection with the delivery of the Services or Software. CAKE.com will ensure that any sharing of User Content with an authorized third party will be in compliance with applicable Law.
20.4 User Responsibilities. You are solely responsible for compliance with all Laws and regulations pertaining to the User Content, including Laws requiring you to obtain the consent of a third party to use, license or generate User Content and to provide appropriate notices of third-party rights. CAKE.com may delete any User Content, at any time without notice to you if CAKE.com becomes aware that it violates any provision of this Agreement or any applicable Laws. You retain all ownership rights in your User Content subject to any license or other rights granted herein.
Any feature(s) of the Services that may permit you to temporarily save or otherwise store User Content is offered for your convenience only and CAKE.com does not guarantee that the User Content will be retrievable. You are solely responsible for saving, storing, and otherwise maintaining User Content including by maintaining backup copies of your User Content on appropriate independent systems that do not rely on the Services. CAKE.com may permanently erase User Data if the User Account is delinquent, suspended, or terminated for thirty (30) days or more.
20.5 Exclusion of Liability for Data Security. Under no circumstances may CAKE.com be held liable for data security in relation to the User Content and User Data nor accountable for any security data breach, unauthorized access, use, disclosure or any other illegal activity related to the User Content and User Data (including personal data of End Users) unless otherwise explicitly agreed between the Parties.
20.6 Service Generated Data. Telemetry data, product usage data, diagnostic data, and similar data that CAKE.com collects or generates in connection with your or your End Users`, Business Users` or Authorized Users` use of the Services or Software are referred to as "Service Generated Data". CAKE.com owns all rights, title, and interest in and to Service Generated Data.
21. THIRD PARTY PROPRIETARY RIGHTS
You agree to not, and to not permit any End User, Business User or Authorized User to, post, modify, distribute, or reproduce in any way in connection with your or your End Users`, Business Users` or Authorized Users` use of the Services or Software any copyrighted material, trademarks, or other proprietary material that may infringe, misappropriate, or otherwise violate another's Proprietary Rights without obtaining the prior written consent of the owner of the Proprietary Rights. You represent and warrant that you are either the author of all User Content to be provided under this Agreement or have obtained and hold all rights necessary to provide such User Content and receive all User Content in the form provided by CAKE.com, in connection with your or your End Users`, Business Users` or Authorized Users' use of the Services or Software. CAKE.com may deny access to the Services to any End Users`, Business Users` or Authorized User who is alleged to infringe another person's Proprietary Rights and may remove any stored User Content upon CAKE.com's receipt of notice by the Proprietary Rights owner (e.g., a takedown request). Without limiting the foregoing, if you believe that any of your Proprietary Rights have been infringed in connection with the Services, notify CAKE.com as specified in Section 36.5.
22. COPYRIGHT INFRINGEMENT - DMCA NOTICE
In accordance with the Digital Millennium Copyright Act ("DMCA") and other applicable Law, we have adopted a policy of terminating, in appropriate circumstances, the User Accounts of Users who repeatedly infringe the Intellectual Property Rights of others.
If you have any complaints or objections to material posted on the Services you may contact our designated agent at the following address:
Designated Agent: Nenad Milanovic
Address: 2100 GENG RD STE 210
Palo Alto, CA 94303
Telephone Number: +1 (866) 348-6668
Email Address: [email protected]
Please see Section 512(c)(3) of the DMCA for the requirements of a proper notification. If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your notice may not be effective. If you knowingly materially misrepresent that any activity or material on our Services is infringing, you may be liable to CAKE.com for compensation of all incurred damages and related costs.
You hereby unconditionally and irrevocably assign and agree to assign to CAKE.com on your behalf, and you shall cause your employees, contractors, agents, End Users, Business Users and Authorized Users to unconditionally and irrevocably assign and agree to assign, all right, title, and interest in and to the Feedback, including all Proprietary Rights relating thereto. All Feedback is and will be treated as CAKE.com Confidential Information until CAKE.com, in its sole discretion, chooses to make any specific Feedback non-confidential.
24. PRIVACY AND PROTECTION OF USER DATA
If your use of the Services requires CAKE.com to process End Users`, Business Users` and Authorized Users' personal data under a data processing agreement, our processing of personal data provided by you is governed by our Data Processing Addendum and CAKE.com will process such personal data subject to CAKE.com's Data Processing Addendum, which is hereby incorporated by this reference into this Agreement.
You acknowledge that you are (i) a "business" and we process "personal information" (as those terms are defined by the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020) on your behalf, and (ii) a "controller" and we process "personal data" (as those terms are defined by other applicable US state data privacy Laws) on your behalf, or (iii) you meet both criteria set out in (i) and (ii), and therefore our Data Processing Addendum is incorporated herein by reference and applies to our "processing" of your "personal information" and "personal data" (as those terms are defined under the aforementioned Laws).
Where we process your personal data, personal information, or personally identifiable information in the provision of Services to you, you acknowledge that CAKE.com is acting on your behalf and you determine the means and purposes of the processing.
Communication Preferences: You agree to receive communications from us, including via email. Communications from us may include operational communications (for example, concerning your subscription) or responses to your inquiries or marketing materials. To the extent required by applicable Law, we will provide you with a method to unsubscribe from our promotional email list in the promotional email itself or through any other legally required means. Please note that you cannot unsubscribe from certain correspondence from us, including messages relating directly to your subscription or payments, and you agree that all agreements, notices, disclosures, and other such communications that we provide to you electronically, via email or notification on User Account, satisfy any legal requirement that such communications be in writing.
In order for us to provide our Services, you agree that we may process, transfer, and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local Law.
A USER OR AN ENTERPRISE MAY USE DIFFERENT PRODUCT OR SOFTWARE FEATURES. SOME FEATURES MAY RAISE ADDITIONAL PRIVACY RISKS OR CONCERNS (for example, GPS tracking or Screenshots). BEFORE ACTIVATING A CERTAIN FEATURE, THE USER OR ENTERPRISE MUST MAKE SURE TO UNDERSTAND HOW THE FEATURE OPERATES (including but not limited to how CAKE.com may process personal data on behalf of the User or Enterprise).
WHEN THE USER OR AN ENTERPRISE ACTS AS A CONTROLLER FOR ANY PRODUCT OR SOFTWARE FEATURES, IT MUST ENSURE THAT IT HAS A LAWFUL BASIS FOR PROCESSING PERSONAL DATA UNDER APPLICABLE PRIVACY LAW.
25. ANONYMIZED AND AGGREGATED DATA
You agree that CAKE.com may obtain and aggregate technical and other data about your and your End Users, Business Users and Authorized Users use of the Services and Software on a de-identified or anonymized basis ("Aggregated Anonymous Data"), and CAKE.com may use the Aggregated Anonymous Data in accordance with applicable Law, including to analyse, develop, improve, support, and operate the Services and Software provided to you or other unrelated customers, during and after the term of this Agreement, including to generate industry benchmarks or best practices guidance, recommendations, or similar reports.
26.1 Definition. "Confidential Information" means: (i) with respect to CAKE.com, any information disclosed by, for, or on behalf of CAKE.com, directly or indirectly, to you or any End User, Authorized User or Business User in connection with this Agreement, the Services or Software, or learned or accessed by you or any End User, Authorized User or Business User in connection with the Services or Software, including business information, development plans, product roadmap details, systems, strategic plans, source code, services, products, pricing, methods, processes, financial data, programs, trade secrets, know-how, and marketing plans, however it is conveyed in any form or medium, together with all information derived from the foregoing, and any other information that is designated as being confidential (whether or not it is marked as "confidential") or which is known by you or the End User, Authorized User or Business User or reasonably should be understood by you or the End User, Authorized User or Business User to be confidential ("CAKE.com Confidential Information"); and (ii) with respect to you, any information disclosed by you to CAKE.com that (a) must be kept confidential pursuant to applicable Law or (b) is sensitive security and technical information that is clearly and conspicuously marked as "confidential" by you ("User Confidential Information"). User Content is not User Confidential Information; however, User Content will be protected in accordance with Section 20.3.
26.2 Exclusions. Confidential Information does not include information that: (i) is already rightfully known to the receiving party at the time it is received, free from any obligation to keep such information confidential; (ii) becomes publicly known or available through no act or omission of the receiving party or any third party; (iii) is rightfully received from a third party without restriction and without breach of this Agreement; or (iv) is independently developed by the receiving party without the use of the disclosing party's Confidential Information.
26.3 Obligation of Confidentiality. You and CAKE.com shall take reasonable steps to maintain the confidentiality of each other's Confidential Information using measures that are at least as protective as those taken to protect its own information of a similar sensitivity, but in no event using less than a reasonable standard of care. Neither you nor CAKE.com will disclose the other party's Confidential Information to any person or entity except to its employees, advisors, and attorneys who have a strict need to know the information in connection with this Agreement and who are bound by confidentiality obligations at least as protective as the provisions herein. In addition to the foregoing permitted disclosures, CAKE.com also may disclose User Confidential Information to its consultants, contractors, service providers, sub processors, and other third parties who are bound by confidentiality obligations at least as protective as the confidentiality provisions herein.
26.4 Permitted and Compelled Disclosures. Notwithstanding the restrictions in this Section 26 and without limiting any other rights of CAKE.com, including our disclosure rights without notice in Section 18.8, we may disclose User Confidential Information received in connection with this Agreement, the Services, or Software to the extent authorized in this Agreement or as required by applicable Law; provided, however, that CAKE.com will first notify you, unless providing such notice or timely notice is: (i) prohibited by applicable Law; or (ii) determined by CAKE.com in its sole discretion to be (a) a risk or potential risk of harm to a person or to the health of a person, (b) a risk or potential risk of damage to property, (c) an emergency, or (d) a threat to the Services, Software, or CAKE.com's rights or property.
27. NO HIGH-RISK USE AND SAFE USE
THE SERVICES AND SOFTWARE ARE NOT DESIGNED FOR USE IN HAZARDOUS OR HIGH-RISK ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT, COMBAT OPERATIONS, OR WEAPONS SYSTEMS. YOU SHALL NOT USE THE SERVICES AND SOFTWARE FOR OR IN CONNECTION WITH ANY HIGH-RISK ENVIRONMENT. YOU FURTHER AGREE NOT TO USE THE SERVICES OR SOFTWARE IN AN UNSAFE MANNER, INCLUDING WHILE DRIVING, WALKING, OR OTHERWISE WITHOUT YOUR FULL ATTENTION WHERE RISK TO YOU, YOUR END USERS, OR OTHERS MAY ARISE OR RESULT.
28. DISCLAIMER OF WARRANTIES
YOUR USE OF OUR SERVICES AND SOFTWARE IS AT YOUR SOLE RISK. EXCEPT AS OTHERWISE PROVIDED IN A WRITING BY US, YOU AGREE THAT OUR SERVICES AND SOFTWARE AND ANY CONTENT THEREIN ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. CAKE.COM, ITS AFFILIATES, SUPPLIERS, AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. IN ADDITION, CAKE.COM DOES NOT REPRESENT OR WARRANT THAT OUR SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, SECURE, TIMELY, OR WILL BE UNINTERRUPTED OR OF SATISFACTORY QUALITY. WHILE CAKE.COM ATTEMPTS TO MAKE YOUR USE OF OUR SERVICES AND ANY CONTENT THEREIN SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR SERVICES OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ACCORDINGLY, CAKE.COM, ITS AFFILIATES, SUPPLIERS, AND LICENSORS MAKE NO GUARANTEE, PROMISE, WARRANTY, OR REPRESENTATION (i) REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR SOFTWARE, (ii) REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR SOFTWARE, OR (iii) THAT THE SERVICES OR SOFTWARE WILL MEET ANY USER'S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE.
YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES AND ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES OR SOFTWARE IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE INCURRED TO YOU RESULTING FROM THE USE OF THE SERVICES OR SOFTWARE AND FOR ANY DAMAGE USER MAY SUFFER RESULTING FROM THE USE OF THE SERVICES OR SOFTWARE OR INABILITY TO USE THE SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CAKE.COM OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF CAKE.COM'S OBLIGATIONS. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICES OR SOFTWARE REMAINS WITH YOU. CAKE.COM DOES NOT ASSUME ANY RESPONSIBILITY FOR RETENTION OF ANY DATA, INCLUDING USER CONTENT AND USER DATA, USER INFORMATION, OR COMMUNICATIONS BETWEEN USERS.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you. In such jurisdictions, if there is a breach of warranty, you may notify App Store Provider if you purchased the App from App Store Provider, and App Store Provider may refund the purchase price for the App, if any. To the maximum extent permitted by applicable Law, App Store Provider will have no other warranty obligation or liability whatsoever.
29. LIMITATION AND EXCLUSION OF LIABILITY
READ THIS SECTION CAREFULLY AS IT LIMITS OUR LIABILITY TO YOU.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CAKE.COM OR OUR AFFILIATES, AND THEIR RESPECTIVE BUSINESS PARTNERS, LICENSEES, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND SUPPLIERS ("CAKE.COM PARTIES") BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE—FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY (INCLUDING LOST PROFITS, ANY BREACH OF SECURITY OR ANY DAMAGE TO YOUR DEVICE, LOST DATA, PERSONAL INJURY, PROPERTY DAMAGE, OR LOSSES ARISING OUT OF YOUR USE OF OR RELIANCE ON THE SERVICES, OR YOUR INABILITY TO ACCESS OR USE THE SERVICES), INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OR LOST PROFITS, ARISING FROM, RELATING TO, OR IN ANY WAY CONNECTED WITH THE USE OR THE PERFORMANCE OF THE SERVICES, OR THIS AGREEMENT, EVEN IF CAKE.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ACCORDINGLY, CAKE.COM, ITS AFFILIATES AND ALL CAKE.COM PARTIES WILL NOT BE LIABLE FOR ANY:
- SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES;
- LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF BUSINESS OPPORTUNITY;
- UNAUTHORIZED ACCESS TO, LOSS OF, DELETION OF, OR ALTERATION OF SYSTEM DATA, USER CONTENT, OR USER DATA;
- COSTS RELATED TO THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES;
- TERMINATION, SUSPENSION, DISCONTINUANCE, OR DISCONNECTION OF THE SERVICES;
- A FAILURE OF YOUR INTERNET SERVICES, DOWNTIME, OR MAINTENANCE;
- OUR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES; OR
- DAMAGES, IN THE AGGREGATE FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEEDING THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES (IF ANY) IN THE TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIMS.
THESE EXCLUSION OF DAMAGES AND LIMITATIONS ON AVAILABLE DAMAGES APPLY TO ALL CLAIMS, OBLIGATIONS, AND LIABILITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, AND WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), STATUTE, CONTRACT, OR ANY OTHER LEGAL THEORY, EVEN IF CAKE.COM, ITS AFFILIATES AND ALL CAKE.COM PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MAY BE INCURRED BY YOU AND EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
In the event that any of the foregoing limitations are deemed unenforceable or in the event any liability of the CAKE.com Parties is established, to the greatest extent permitted by the applicable Law, the total aggregate liability of the CAKE.com Parties for any claim arising out of or relating to our Services and this Agreement, under any and all circumstances and regardless of the form of the action, is limited to the amount paid by you to use our Services in the preceding twelve (12) months and may not exceed an annual license fee for the Server Plan paid by the User.
You agree that this limitation of liability represents a reasonable allocation of risk and is a fundamental element of the basis of the bargain between CAKE.com and you. You understand that the Services would not be provided without such limitations.
The limitations set forth in this Section 29 will not limit or exclude liability for the gross negligence, fraud, or intentional and wilful misconduct of the CAKE.com Parties or for any other matters in which liability cannot be excluded or limited under the applicable Law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. Accordingly, since some jurisdictions do not allow certain exclusions of damages or limitations on liability, the above limitation only applies to you to the extent that the exclusions of damages or limitations on liability are not prohibited under the applicable Law.
To the fullest extent permitted by the applicable Law, you agree to indemnify, defend and hold the CAKE.com and its affiliates and each of our licensors and suppliers ("Indemnified Parties") harmless, including any officers, directors, employees, shareholders, members, consultants, and agents of the Indemnified Parties, from any and all third party allegations, losses, liabilities, claims, proceeding, demands, damages, expenses, or costs (including reasonable attorneys' fees) ("Claims") arising out of or related to your (including any End Users, Business Users, Authorized Users, or third parties using credentials provided to the Enterprise): (i) access to or use of the Services, Software or any Add-Ons; (ii) User Content or Feedback; (iii) breach of this Agreement or violation of applicable Law; (iv) violation, misappropriation, or infringement or violation of any Proprietary Rights or other right of any person or entity (including Intellectual Property Rights or privacy rights); (v) conduct in connection with the Services or Software; (vi) relationship with your End Users, Business Users or Authorized Users or any dispute between you and your End User, Business User or Authorized User, or (vii) a personal injury or property damage to a third party relating to your or your End User`s, Business User`s or Authorized User's acts or omissions. We will provide you and you will provide us prompt notice of any third-party Claims against the Indemnified Parties, and you will cooperate with the Indemnified Parties in defending such Claims and pay all fees, costs, and expenses associated with defending such Claims (including attorneys' fees). You also agree that the Indemnified Parties will have control of the defence or settlement, at the Indemnified Parties' sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and the Indemnified Parties.
31.1 Termination Rights.
This Agreement shall continue until either:
- you cancel your Subscription Plan (where applicable) and request for your User Account and all of your Workspaces to be deactivated and deleted; or
- your User Account is terminated by CAKE.com.
On termination of this Agreement for any reason: (a) all rights granted to you under this Agreement will cease immediately; (b) you must immediately cease all activities authorized by this Agreement (including your use of the Services); (c) you acknowledge that we may restrict your access to the Services; and (d) all outstanding Charges accrued by the Enterprise up to the date of termination will become immediately due.
Upon the termination or expiration of this Agreement, CAKE.com shall not be liable to you for any damages of any kind (whether direct or indirect) incurred by you by reason of the expiration or termination of this Agreement.
31.2 Effect of Termination or Suspension.
Upon any termination of this Agreement, you must cease any further use of the Services. No expiration or termination of this Agreement will affect your obligation to pay all Charges that may have become due before such expiration or termination, including that CAKE.com may retain any Charges previously paid by you if this Agreement is terminated, unless prohibited by applicable Law. If your Services are suspended for your failure to comply with this Agreement, you will be liable for all Charges due and owing during the period of suspension.
31.3 Termination by User
User of our Services may terminate this Agreement by deleting the User Account.
You may cancel your Subscription Plan at any time via your applicable User Account. However, any subscription fees and Charges already paid will not be refunded, and if you cancel after your Subscription Term renewal date, you will not receive a refund for any amounts that have already been paid. Your cancellation will be effective at the end of your then-current Subscription Term for each applicable Service i.e. on the last day of the then-current Subscription Term, subject to applicable Law, and you may use the Services until your cancellation is effective (unless your access is suspended or terminated in accordance with this Agreement or applicable Law).
In relation to Product Servers, CAKE.com has no means or powers to provide the End User with the possibility to close the User Account. If you are an End User, please contact the Client regarding this matter.
You understand that cessation of use of the Services will not qualify as termination or entitle you to any refund. If you do not want to use the Services, you need to cancel the subscription to any Subscription Plan and either switch to a Free Plan or delete the User Account.
User is aware and accepts that closing the User Account does not necessarily mean that all Workspaces the User had access to will be automatically deleted. The same rule applies to the User Content provided by that User. User space may belong to other Users, and it is in those Users' responsibility.
You may terminate this Agreement by providing written notice of termination if CAKE.com has materially breached this Agreement and has not cured such material breach within thirty (30) business days of CAKE.com's receipt of your written notice of such breach. Your notice shall state the specific provision in this Agreement that you contend CAKE.com has breached and set forth in reasonable detail the facts and circumstances you allege provide the basis for such breach.
31.4 Termination by CAKE.com
Notwithstanding anything to the contrary herein, CAKE.com reserves the right to change, edit, delete, and/or cancel any part of our Services, and/or immediately suspend your access to the Services or may terminate this Agreement effective immediately, and/or your permission to use the Services, any Add-Ons, or any portion of the foregoing immediately, without prior notice or liability if, in our sole discretion: (i) you commit any breach of this Agreement or Add-On terms and conditions and if you fail to comply with any provision of this Agreement or any referenced policies, guides, notices, or statements; (ii) you do not pay the Charges when due in accordance with your Subscription Plan; (iii) you violate the rights of CAKE.com or any third party, or are otherwise inappropriate; (iv) we discontinue the Services; (v) we are prevented from providing the Services for any reason; (vi) if required by the applicable Law; (vii) due to an event beyond our reasonable control; or (viii) there is a change, cancellation, or revocation of approval by any applicable App Store Provider.
If CAKE.com chooses to suspend your Services and the failure to comply continues, CAKE.com may exercise any or all of its termination rights in this Section 31.
Additionally, CAKE.com may terminate the Services and/or terminate this Agreement, at its sole discretion, for any reason or no reason, upon thirty (30) business days' advance notice, i.e. after the expiry of thirty (30) business days from the day the notice of such termination is sent to User.
31.5 User Data Download and Deletion; Access to User Content After Termination
In the event you wish to delete your User Account, you may be able to download the information provided, inputted, or uploaded to our Services.
At the moment, if you delete your User Account, User Data on your User Account will be deleted immediately. Nevertheless, time tracked, projects, and other information can be deleted only by deleting a Workspace. You understand that only the owner of a Workspace is entitled to decide on the User Data on that Workspace and may delete, edit, or keep such data regardless of any User's activity on our Services.
For thirty (30) calendar days following expiration or termination of this Agreement, CAKE.com will provide you access to retrieve your User Content, after which time your User Content will be deleted according to applicable Law, this Agreement, and our regularly scheduled deletion protocols, policies, and procedures. All access during the period set forth in this Section 31 is provided to you subject to and governed by this Agreement.
32. LINKS TO THIRD-PARTY WEBSITES
We may provide information about third-party products, services, activities, or events, or we may allow third parties to make their content and information available on or through the Services (collectively, "Third-Party Content"). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. CAKE.com does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.
33. JURISDICTION AND CHOICE OF LAW; DISPUTE RESOLUTION
33.1 Governing LawandJurisdiction. The laws of the State of California, U.S.A., regardless of conflict of laws principles, govern all matters arising out of or relating to this Agreement, including its interpretation, construction, performance, and enforcement, except that the Federal Arbitration Act governs provisions relating to arbitration.
The foregoing choice of governing law will not deprive you of the protection afforded to you by provisions that cannot be derogated from by agreement by virtue of the Laws applicable to you.
33.2 Dispute Resolution. Please read the following section carefully because it requires you to arbitrate certain disputes and claims with CAKE.com and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration provision. In addition, arbitration precludes you from suing in court or having a jury trial.
- No Representative Actions. You and CAKE.com agree that any dispute arising out of or related to this Agreement, or our Services is between you and CAKE.com and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action, or any other type of representative proceeding.
- Arbitration of Disputes. Except for small claims disputes, as defined under the applicable Law, in which you or CAKE.com seek to bring an individual action in small claims court located in the county of your billing address or disputes in which you or CAKE.com seek injunctive or other equitable relief for the alleged infringement or misappropriation of intellectual property, you and CAKE.com waive your rights to a jury trial and to have any other dispute arising out of or related to this Agreement or our Services, including claims related to privacy and data security, (collectively, "Dispute(s)"), resolved in court. Instead, for any Dispute that you have against CAKE.com you agree to first contact CAKE.com and attempt to resolve the claim informally and amicably, through negotiations, by sending a written notice of your claim ("Notice") to CAKE.com by email at [email protected] or by certified mail addressed to CAKE.com Inc, 2100 GENG RD STE 210, Palo Alto, CA 94303, USA. The Notice must (i) include your name, residence address, email address, and telephone number; (ii) describe the nature and basis of the Dispute; and (iii) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and CAKE.com cannot reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either party may submit the Dispute to binding arbitration administered by JAMS Mediation, Arbitration and ADR Services ("JAMS") or, under the limited circumstances set forth above, in court. All Disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in Santa Clara County in the State of California. You and CAKE.com agree that Disputes will be held in accordance with the JAMS Streamlined Arbitration Rules and Procedures ("JAMS Rules"). The most recent version of the JAMS Rules is available on the JAMS website and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the JAMS Rules or waive your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
- You and CAKE.com agree that this Agreement affects interstate commerce, and that the enforceability of this Section 33 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the "FAA"), to the maximum extent permitted by applicable Law. As limited by the FAA, this Agreement, and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one Enterprise's claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one Enterprise.
- The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator, CAKE.com, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including information gathered, prepared and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the Law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by Law or judicial decision.
- You and CAKE.com agree that the Party that initiates the arbitration shall pay all JAMS fees and costs. You and CAKE.com agree that the state or federal courts of the State of California and the United States sitting in Santa Clara County in the State of California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
- Any Dispute will be governed by and construed and enforced in accordance with the Laws of the State of California, except to the extent pre-empted by U.S. federal law, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the Laws of any other jurisdiction. Any Dispute between the Parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of the State of California and the United States, respectively, sitting in Santa Clara County in the State of California and the Parties consent to the exclusive jurisdiction and venue of the state courts located in and serving Santa Clara County, California, and the federal courts in the State of California. Notwithstanding the above, you and CAKE.com agree that this paragraph does not preclude either you or us from initiating any proceedings (including nullity proceedings) before the United States Patent Trial and Appeal Board (PTAB), United States Trademark Trial and Appeal Boards (TTAB), the United States Patent and Trademark Office (PTO), the United States Copyright Office, or any foreign patent, trademark, or copyright office, as long as any such proceeding relates to the validity, enforceability, or unenforceability of any copyright, patent, trademark, or other Intellectual Property Rights or Proprietary Rights owned or assigned to either you or CAKE.com.
- Any Dispute must be filed within one (1) year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that you and CAKE.com will not have the right to assert the claim and initiate any proceeding therewith.
- If any portion of this Section 33 is found to be unenforceable or unlawful for any reason, (i) the unenforceable or unlawful provision shall be severed from this Agreement; (ii) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 33 or the Parties' ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 33; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the Parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 33 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 33 will be enforceable.
34. SERVER PRODUCTS
The terms in the other sections of this Agreement apply generally to the use of Products and Software. Additionally, this Section 34 applies only to legacy users of Server Products and to the Products and Software desktop and mobile apps and contains specific terms that apply in addition to the general terms of this Agreement. These specific terms contained in this Section 34 govern only with respect to Server Products if there are any conflicts with the terms in the other sections of this Agreement.
If a User wishes to install Products and Software on its internal device, the User must obtain a license from CAKE.com. A User is authorized to use Server Products only if they are properly licensed which means that the User has previously read, understood and accepted the terms of this Agreement (including provisions applicable to Server Products), the User has paid all applicable Charges calculated on the billing page (or set in the invoice issued by CAKE.com) and the Software has been properly downloaded and activated with a genuine product key or by other authorized methods provided by CAKE.com and for the duration of the license.
End Users have to access Server Product via email that contains the Client's domain used for the license granted hereunder.
A copy of the Server Products created pursuant to this Agreement at the User's Device is being licensed for a limited period of time and cannot be sold, and Client receives no title to or ownership of any copy or of the Software itself.
CAKE.com charges the license for Server Products annually in accordance with the Server Plan and the offer sent to with Client.
Server Plan for Server Clockify. Server Plan for Server Clockify entails:
- All-time tracking and reporting features included;
- All future updates included;
- All data is encrypted at rest by default;
- Managing and controlling User Accounts from the admin panel;
- Managing access using SSO (SAML2, OAuth2, AD/LDAP, etc.);
- Pulling and pushing data to and from Clockify via API/webhooks;
- Unlimited number of workspaces to keep team data separate;
- Priority support via email, chat and phone support (best-effort support).
Server Plan does not include additional services provided by CAKE.com such as Premium Support and Managed Service ("Additional Service"). The provision of the Additional Service may be subject to another agreement with CAKE.com. For further information on the Additional Service please contact [email protected].
License Rights. During the term of this Agreement, CAKE.com grants Client a limited, non-exclusive, non-transferable, revocable, temporary, non-assignable, non-sublicensable, non-refundable and royalty-free license to install a copy of the Server Product on the designated User's Device and use the Server Product solely for Client's internal business use for the agreed number of End Users (the "License Rights"), provided Client pays all the agreed Charges and complies with the restrictions set forth herein. The Client's internal business use shall mean the authorization granted to the Client to use Server Products to provide Software-as-a-Service access to the agreed number of its End Users for the purpose of tracking time or monitoring of their work activities, enabling communication between team members or any other purpose inherent to a particular Server Product and its functionalities. Such internal business use does not include use by any parent, subsidiary, or affiliate of Client, or any other third party, and Client shall not permit any such use. The Client License Rights do not include access to the Products Server source code.
Restrictions on Software License Rights. In addition to the restrictions set out in Section 10 and Section 11 of this Agreement, and without limiting the generality of the foregoing, Client (or its End User) shall not:
- modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Server Products;
- rent, lease or land the Server Products;
- use the Server Products for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software;
- reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Server Products' source code;
- reproduce or create more copies of the Server Products than agreed with CAKE.com;
- use Server Products for more End Users than agreed in this Agreement with CAKE.com;
- attempt to exercise any copyright holder's rights not specifically granted herein.
Breaching any restriction on the Client's software license rights will cause the Client to immediately lose the license and shall entitle CAKE.com to the full compensation of copyright infringement damages.
Delivery. CAKE.com shall provide the Server Products and documentation to Client, through a reasonable system of electronic download or otherwise agreed between the Parties, within 10 calendar days after the payment has been received by CAKE.com.
Documentation. Upon delivery of the Server Products, CAKE.com shall also deliver copies of the necessary documentation.
Maintenance. During the term of this Agreement, CAKE.com will use commercially reasonable efforts to correct any failure of the Server Products (inherent to the Software itself and not caused by Client) to perform according to this Agreement within a reasonable time. The Client is not entitled to engage a third party to provide maintenance services on Server Products.
Updates. The Client will sometimes need software updates to keep using Server Products. CAKE.com may automatically check the Client's version of the Server Products and deploy software updates or configuration changes. The Client may also be required to update the Server Products to continue using the Product Services. Such updates are subject to this Agreement, unless other terms accompany the updates, in which case, those other terms apply. Providing updates is at CAKE.com's sole discretion.
Upgrades. During the term of this Agreement, CAKE.com may provide Client with copies of all upgrades, without additional charge, promptly, after the commercial release (if any). Upon delivery to Client, each Upgrade will constitute an element of the Software and will thereafter be subject to the terms and conditions herein regarding Software, including without limitation, license, warranty and indemnity terms. Providing upgrades is at CAKE.com's sole discretion.
C. Payment for Server Products
Fees for Server Plan. Server Plan is only available as an annual plan and the applicable fees are being charged annually. The applicable fees are being charged based on the number of End Users as agreed between the Client and CAKE.com based on CAKE.com's offer. The license is effective upon the Client's payment of the applicable fees and the Client may not commence with the Server Plan before the payment is received by CAKE.com. The fees for the next billing period are due 30 days before the expiry of the then-current billing period.
Reduction in the number of End Users during the billing period does not entitle the Client to a refund for that billing period.
An increase in the number of End Users after the beginning of a billing cycle will be charged on a pro rata basis to match the end date of the then-current billing period.
The Client acknowledges that payment for the Product Services is non-refundable for a certain billing period if this Agreement is terminated any time after such billing period has started.
Fees for Additional Service. Fees for Additional Service is being charged as agreed between the Client and CAKE.com based on CAKE.com's offer.
Amounts due under this Agreement or any agreement for the Additional Service with Client are payable to CAKE.com without deduction and net of any taxes, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including, without limitation, any sales, use, excise, ad valorem, property, withholding, or value-added tax withheld at the source. If the applicable Law requires withholding or deduction of such taxes or duties, Client shall separately pay CAKE.com the withheld or deducted amount. However, the preceding two sentences do not apply to taxes based on CAKE.com's net income.
D. Confidential Information
Confidential Information. "Confidential Information" refers to the following information that one party to this Agreement ("Discloser") discloses to the other ("Recipient"): (a) any document Discloser marks "Confidential"; (b) any information Discloser orally designates as "Confidential" at the time of disclosure; (c) any object code and source code disclosed by CAKE.com together with all documentation and any names of actual or potential customers disclosed by Client, whether or not marked as confidential; and (d) any other non-public, sensitive information. Recipient should reasonably consider a trade secret or otherwise confidential. Quotation offered by CAKE.com for the license to use Server Products or for the customization services will at all times be considered confidential. Information Client shares with CAKE.com for the purpose of sending quotation shall be treated as confidential.
Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient's possession at the time of disclosure; (ii) is independently developed by Recipient without the use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient's improper action or inaction; or (iv) is approved for release in writing by Discloser.
Nondisclosure. The Recipient shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (the "Purpose") during the term of this Agreement and 10 years after its termination (regardless of the ground for termination). Recipient: (i) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those contained herein; and (ii) shall not disclose Confidential Information to any other third party without Discloser's prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its confidential information of similar nature and importance, but with no less than reasonable care. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by the applicable Law or by proper legal or governmental authority. The Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser's expense. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient's attention.
Termination and Return. Upon termination of this Agreement, Recipient shall, upon request by Discloser, return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.
E. Representations, Warranties, and Limitation of Liability
- Function. CAKE.com represents and warrants that, during the term of this Agreement, the Server Products will perform materially as described herein and in the Server Products documentation.
- Intellectual Property Rights in the Software. Subject to the next sentence, CAKE.com represents and warrants that it is the owner of the Software and each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the Intellectual Property Rights to the Software set forth in this Agreement without the further consent of any third party.
From both Parties:
- Each Party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
Warranty Disclaimers. Except for the express warranties directly above, CAKE.COM MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
CAKE.com does not warrant that the Server Products will perform without error or that they will run without immaterial interruption. CAKE.com provides no warranty regarding, and will have no responsibility for, any claim arising out of:
- modification or maintenance of the Server Products made by anyone other than CAKE.com, unless CAKE.com approves such modification in writing; or
- use of the Server Products in combination with any operating system not authorized in documentation or with hardware or software specifically forbidden by documentation.
Exclusion of Liability for Data Security. Given that, in case of Server Products, all the User Content is hosted on the Client's server or server chosen by the Client, the security of the Client's data and the User Content and application of the physical, technical, administrative, organizational and other measures is in the Client's full responsibility. Under no circumstances may CAKE.com be held liable for data security in relation to the User Content and Client's data nor accountable for any security data breach, unauthorized access, use, disclosure or any other illegal activity related to the User Content and Client's data (including personal data of End Users) unless otherwise explicitly agreed between the Parties.
CAKE.COM'S AGGREGATE AND TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY AND ALL CIRCUMSTANCES MAY NOT EXCEED AN ANNUAL LICENSE FEE FOR THE SERVER PLAN PAID BY THE CLIENT.
F. Termination and License Term
Termination. This Agreement will continue until terminated by either Party as specifically authorized herein.
License Term. The license term starts on the date the Client downloads Server Products and lasts for one year period (the "License Term"). The License Term will renew automatically for periods of the same duration unless the Client gives written notice of its intent not to renew 30 days before the end of the current License Term.
Termination for Cause. Either Party may terminate this Agreement for the other's material breach by written notice specifying in detail the nature of the breach, effective in thirty (30) calendar days unless the other Party first cures such breach, or effective immediately if the breach is not subject to cure.
Effects of Termination. Upon termination of this Agreement or License Term, Client shall cease all use of the Server Products and delete, destroy, or return all copies of the Server Products and documentation in its possession or control. Client admits and acknowledges that any use after the license has expired shall constitute a breach of CAKE.com's Intellectual Property Rights and will entitle CAKE.com, inter alia, to the full compensation of copyright infringement damages.
Without prejudice to the previous paragraph of this Section 34, the license for Server Products and this Agreement will immediately terminate if Client has failed to make payment prior to the beginning of the billing period and does not make such payment within 5 working days after CAKE.com gives notice of such nonpayment to Client.
Upon termination of the license to use Server Products for whatever reason, Client is obliged to delete Software and the Content from all the devices, prevent all End Users who have been using Server Products via license obtained by Client and present CAKE.com with the proof of cessation of all activities authorized by this Agreement.
The Client understands and agrees that upon any termination of this Agreement:
- all rights that Client has been granted hereunder will terminate;
- Client must cease all activities authorized by this Agreement;
- all amounts (if any) owed to CAKE.com hereunder become due;
- all User Data and other information associated with the Client's Account may be deleted, or may become inaccessible to User;
- all its Software-related Client's obligations hereunder shall survive until Client has fully removed all Software from its devices, systems and storage media.
The Client has to send a written statement to CAKE.com that Software has been permanently deleted and that Client ceased using Software. However, the Client may export and save the User Data or User Content via an "export" option offered at Software prior to the termination date. Until CAKE.com receives such a written statement from the Client, it shall be deemed that the Client is using Software.
35. YOUR PROMISES TO US
You promise to us that (a) you are not located in a country subject to a United States government embargo, nor are you located in a country that has been designated by the United States government as a "terrorist supporting" country; (b) you are not listed on any United States government list of prohibited or restricted parties; (c) you assume the risk of any information submitted by you; and (d) you will not disclose nor allow to be disclosed by any means any confidential information belonging to us that you become aware of.
36. EXPORT RESTRICTIONS
You acknowledge that the Services and Software, or a portion thereof, are subject to the Export Administration Regulations, 15 C.F.R. Parts 730-774 of the United States, and may be subject to other applicable country export control and trade sanctions Laws, including the Export Administration Regulations, 15 C.F.R. Parts 730-774 of the United States, and programs maintained by the U.S. Department of Treasury's Office of Foreign Assets Control ("OFAC") (collectively, "Export Control and Sanctions Laws"). CAKE.com will provide the U.S. export classification(s) applicable to its Services and Software upon request. You and your End Users, Business Users and Authorized Users may not access, use, export, re-export, divert, transfer, or disclose any portion of the Services or Software or any related technical information or materials, directly or indirectly, in violation of Export Control and Sanctions Laws. You represent and warrant that: (i) you and your End Users, Business Users and Authorized Users (a) are not citizens of, or located within, a country or territory that is subject to U.S. trade sanctions or other significant trade restrictions (including Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk and Luhansk regions of Ukraine) and that you and your End Users, Business Users and Authorized Users will not access or use the Services or Software, or export, re-export, divert, or transfer the Services or Software, in or to such countries or territories; (b) are not persons, or owned or controlled by 50% or more, individually or in the aggregate, by persons, identified on the U.S. Department of the Treasury's Specially Designated Nationals and Blocked Persons List or Foreign Sanctions Evaders Lists or any similar applicable list maintained by a country's regulatory authority; and (c) are not persons on, affiliates of persons on, the U.S. Department of Commerce's Denied Persons List, Entity List, or Unverified List, or U.S. Department of State proliferation-related lists; (ii) you and your End Users, Business Users and Authorized Users located in Belarus, Myanmar (Burma), Cambodia, China, Russia, or Venezuela are not Military End Users and will not put CAKE.com Services or Software to a Military End Use, as defined in 15 C.F.R. 744.21; (iii) no User Content created or submitted by you or your End Users, Business Users and Authorized Users is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control and Sanctions Laws; and (iv) you and your End Users, Business Users and Authorized Users will not take any action that would constitute a violation of, or be penalized under, U.S. antiboycott laws administered by the U.S. Department of Commerce or the U.S. Department of the Treasury. Any list of countries specifically included in this clause will be deemed to be updated to the extent that any country or territory is added or removed under the Export Control and Sanctions Laws. You are solely responsible for complying with the Export Control and Sanctions Laws and monitoring them for any modifications.
37.1 Language and Translations. All notices and communications under this Agreement must be provided in the English language. If we provide a translation of the English-language version of this Agreement, then the English-language version of this Agreement controls and prevails in the event of conflict, discrepancy, or inconsistency.
37.2 Merger; Integration; Entire Agreement. This Agreement (as amended and updated from time to time) including any agreements incorporated by reference herein, constitutes and embodies the entire and final agreement between you and CAKE.com relating to the subject matter hereof and contains the complete and exclusive expression of your and our agreement pertaining to its subject matter. All prior or contemporaneous agreements, understandings, writings, negotiations, and discussions between you and CAKE.com with respect to the subject matter hereof are expressly merged into and superseded by this Agreement. We expressly object to and do not agree to any terms and conditions presented by you that are in addition to or different from those contained in this Agreement. You acknowledge that no terms and conditions presented by you that purport to add to, modify, or vary the terms and conditions of this Agreement will be binding on us, including (i) text or information set forth on any purchase order, email correspondence, invoice or invoice process, or preprinted form, or (ii) terms and conditions of any request for proposal, request for bid, request for information, or questionnaire. In entering into this Agreement, neither you nor CAKE.com has relied upon any statement, representation, warranty, or agreement of the other party except to the extent expressly contained in this Agreement. In case of conflict between any provision herein and any statement, representation, or other information published on the Services or contained in any other materials or communications, the provision in this Agreement shall prevail.
37.3 No Agency Relationship. CAKE.com and you are independent contractors and do not intend to create an express or implied agency relationship by entering into this Agreement, whether arising under federal or state common law of agency.
37.4 No Third-Party Rights or Remedies. This Agreement does not and is not intended to confer any enforceable rights or remedies upon any person other than CAKE.com and you.
37.5 Notices. CAKE.com may give notice to you by (i) electronic mail to your email address on record in your account information, which is associated with your User Account, (ii) written communication sent by mail or courier to the address provided by the applicable Business User or Authorized User i.e. by letter delivered by a nationally recognized overnight delivery service, or (iii) first-class postage prepaid mail to your address on record in your account information. You are responsible for ensuring that your email address and property address on record are current. You agree that any notice sent to the then-current email or property address in our systems is adequate and binding notice upon you. You will provide notice to us (such notice is deemed given when received by CAKE.com) by electronic mail or by letter delivered by a nationally recognized overnight delivery service or first-class postage prepaid mail.
All notices to CAKE.com shall be provided to [email protected] or 2100 Geng Road, Suite 210, Palo Alto, CA 94303, USA.
Notice shall be deemed to have been received the next day if given via notice through a User Account or via email, or five (5) business days after posting the notice via courier or registered post.
37.6 Severability. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable by any court having competent jurisdiction, the validity, legality, and enforceability of the remaining provisions of this Agreement are not affected or impaired in any way and the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. You and CAKE.com intend that any invalid, illegal, or unenforceable portions of this Agreement will be interpreted to provide the greatest effect and intent of the original. If a construction of the invalid, illegal, or unenforceable portion is not possible, the invalid, illegal, or unenforceable portion will be severed from this Agreement and the rest of this Agreement will remain in full force and effect.
If any provision of this Agreement violates any mandatory rule of applicable Law and proves to be void as a result thereof, such provision shall, for those specific circumstances and only in that particular respect in which it is void, be deemed to have been amended to comply with the Law. Any such amendment shall be confined to the minimum necessary to make the provision valid and shall retain as much of its original ambit and meaning as possible.
37.7 Survival. All sections of this Agreement which, by their nature should survive termination or expiration, will survive, including sections pertaining to confidential information, CAKE.com's Proprietary Rights, license rights granted by you to CAKE.com, payment obligations, warranty disclaimers, indemnification, arbitration, and the limitation on liability.
37.8 No Waiver. CAKE.com's failure to exercise any right or enforce any condition or provision under this Agreement shall not constitute a waiver of such right or provision and does not operate as a current or future waiver. For any waiver to be effective against us, the waiver must be in a writing signed by CAKE.com's duly authorized representative.
37.9 Interpretation. Any heading, caption, or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular will have the same meanings when used in the plural and vice versa, where appropriate and unless otherwise specified. Any use of the term "e.g." or "including" or variations thereof in this Agreement will be construed as if followed by the phrase "without limitation."
37.10 Assignment; Successors and Assigns. You may not assign your rights or transfer any of your obligations under this Agreement to any other party without our prior express written consent. Such consent may be withheld in our sole discretion, and any purported assignment or transfer without such consent and in violation of this section is null and void. We may assign our rights or transfer any or all of our obligations under this Agreement to any party at any time, without prior notice to you, (i) in the event of a merger, acquisition, or sale of all or substantially all of our assets, or (ii) to our affiliate. This Agreement is binding upon, and inures to the benefit of, the Parties and their respective permitted successors, assigns, heirs, executors and beneficiaries.