Last Updated: July 10, 2023
By clicking “I Agree” or by using our Services, you agree to this Agreement, including the mandatory arbitration provision and class action waiver in Section 26, any linked terms herein, and any Supplemental Terms.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE THE SERVICES AND YOU MUST PROMPTLY CEASE USING THEM.
OURSERVICES 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 ANY CONSUMER RIGHTS.
“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.
“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.
“Enterprise” means the legal entity which is the licensee of our Services 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” 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 where CAKE.com allows third-party Add-On Providers to offer you Add-Ons to our 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.
“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.
“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.
“User 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.
“User Content” means any content provided by a User in Workspace or anywhere else on our Services, including any entered, recorded, stored, used, controlled, modified, disclosed, transmitted, or erased information and data.
“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 here.
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 any consumer rights.
As a Business User, you enter this Agreement on behalf of your Enterprise, and you represent and warrant that:
- You have the full legal authority to bind the Enterprise to 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);
- Any Authorized User who you permit to use our Services is at least eighteen (18) years old;
- 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 our End-User Agreement (currently available at https://cake.com/ch/terms).
3. USER ACCOUNT
You may need to register for a User Account to access some or all of our Services. If you register for a User Account, you must provide accurate account information and promptly update this information if it changes. You must also maintain the security of your User Account and you must not permit others to use your User Account credentials. You are solely responsible for any Subscription Plan payments, or any 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 firstname.lastname@example.org.
We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.
4. THE SERVICES
Availability. 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.
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.
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”). In the event of any conflict between this Agreement and any App Store Terms, the App Store Terms will prevail. You and we acknowledge and agree that, if you have downloaded the App from the Apple App Store, Apple, and Apple’s subsidiaries, are third-party beneficiaries under this Agreement and Apple 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
- 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 U.S. dollars in full, and in advance, 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.
- 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.
- 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 endeavor 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.
- DISCLAIMER OF WARRANTIES WITH RESPECT TO ADD-ONS. 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 are accurate, complete, reliable, current, error-free, secure, timely, or will be uninterrupted or of satisfactory quality. 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
CAKE.com may revise and update this Agreement at any time. We will notify you of material changes to this Agreement by any reasonably means, including through our Services (we may also email you about any material changes to this Agreement), and it is your responsibility to review any such changes when posted. Your continued access to or use of our Services after any such changes will constitute your acceptance of these changes. If you do not agree to the updated version of this Agreement, you must stop using our Services, cancel your Subscription Plan (as applicable), and delete your User Account.
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 Section7 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).
8. INTELLECTUAL PROPERTY; LIMITED 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, nonexclusive, nontransferable, non-sublicensable (except to its Authorized Users), revocable 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, and will violate our Intellectual Property Rights. 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.
The CAKE.com, Clockify, Plaky, Pumble, and other CAKE.com trademarks, and our logos, our product or service names, our slogans, and the look and feel of our 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.
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 (including without limitation Apple) will not be responsible for any investigation, defense, settlement, and discharge of any such claim.
You 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.
9. USE RESTRICTIONS
You agree to use the Services only in compliance with all applicable local, state, national, and international laws, rules, and regulations.
You must not (nor permit any Business User, Authorized User, or other third party to): (a) access or use the Services in any way that is not expressly permitted by this Agreement; (b) cause, permit, or authorize the modification, copy, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of the Services; (c) sell, assign, rent, lease, or grant rights in the Services, including, without limitation, through sublicense, to any other person or entity; or (d) use the Services for any unlawful, prohibited, abnormal, or unusual activity as determined by CAKE.com in its sole discretion.
You must not (nor permit any Business User, Authorized User or other third party to) use the Services: (a) 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 any operating system used by the Services; (b) in a way that could damage, disable, overburden, impair, or compromise our systems or security, or interfere with other users; (c) to collect or harvest any information or data from the Services or our systems or attempt to decipher any transmissions to or from the servers running the Services; (d) via use of a robot, spider, or other automated device to monitor or copy the Services or any information provided by the Services; (e) to send, knowingly receive, upload, download, use or re-use any material which does not comply with this Agreement; (f) to transmit, or procure the sending of, any unsolicited or unauthorized advertising or promotional material or any other form of similar solicitation (spam); or (g) 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 9 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 9 does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.
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 unless you cancel it. Your subscription fee in effect at the time of your automatic renewal will continue for your renewal term unless we notify you thirty (30) days in advance of the end of the Subscription Term for a yearly Subscription Plan or ten (10) days in advance of the end of the Subscription Term for a monthly Subscription Plan 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.
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.
Prices set out in the Price Plan are subject to change at any time. To the extent permitted under applicable law, any price will become binding on the Enterprise upon the following conditions:
- CAKE.com has sent notice in advance of any such change; and
- The Enterprise did not unsubscribe from the Subscription Plan within such a period or by the end of the then-current Subscription Term, whichever date is later.
Such notice may be sent to you by email to your most recently provided email address or posted 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 Services on the day following the date it was posted.
11. PROMOTIONAL TRIAL-PERIODS
CAKE.com may offer a free trial period (“Free Trial”) of any or part of our Services. 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.
Free Trials are available to new Enterprises only.
Anyone who subscribes to our Services, including anyone who has permitted or caused another person or Enterprise to participate in a Subscription Plan, is deemed to have agreed to and accepted liability for the payments under such Subscription Plan. 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 and in accordance with this Agreement.
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 fees and any taxes using any payment method we have for you.
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 instrument is declined for any reason, we may at our sole discretion, deny access to the Subscription Plan immediately.
All sums payable to CAKE.com hereunder shall be paid in full, and in advance of the Subscription Term, 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 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.
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. 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.
13. 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.
14. USER CONTENT
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: (a) will not be defamatory, obscene, offensive, or otherwise objectionable; (b) will not infringe the Intellectual Property Rights or other rights (such as privacy or confidentiality) of any third party; (c) will comply with applicable laws; (d) will not promote violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; (e) will not be likely to deceive any person; (f) will not be threatening, abusive, or cause annoyance, inconvenience, or needless anxiety; (g) will not be likely to harass, upset, embarrass, alarm, or annoy any other person; (h) will not impersonate any person, or misrepresent your identity or affiliation with any person; (i) will not give the impression that it emanates from us, if this is not the case; and (j) 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.
Except for the license you grant below, 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. You grant CAKE.com and its subsidiaries and affiliates a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform, and display your User Content and any name, username, or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. 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.
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.
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.
15. 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 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@example.com
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 certain costs and damages.
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 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.
18. DISCLAIMER OF WARRANTIES
YOUR USE OF OUR SERVICES IS AT YOUR SOLE RISK. EXCEPT AS OTHERWISE PROVIDED IN A WRITING BY US, OUR SERVICES AND ANY CONTENT THEREIN ARE PROVIDED “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, 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. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES. USER IS SOLELY RESPONSIBLE FOR ANY DAMAGE USER MAY SUFFER RESULTING FROM THE USE OF 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.
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 Apple if you purchased the App from Apple, and Apple may refund the purchase price for the App, if any. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation or liability whatsoever.
19. LIMITATION AND EXCLUSION OF LIABILITY
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 AND AGENTS (“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 THESE TERMS, EVEN IF CAKE.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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 law, the total aggregate liability of the CAKE.com Parties for any claim arising out of or relating to our Services, regardless of the form of the action, is limited to the greater of $20 or the amount paid by you to use our Services in the preceding twelve (12) months.
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 19 will not limit or exclude liability for the gross negligence, fraud, or intentional misconduct of the CAKE.com Parties or for any other matters in which liability cannot be excluded or limited under 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.
To the fullest extent permitted by applicable law, you agree to indemnify and hold the CAKE.com Parties harmless from any and all losses, liabilities, claims, demands, damages, expenses, or costs (“Claims”) arising out of or related to your (including any Business Users, Authorized Users, or third parties using credentials provided to the Enterprise): (a) access to or use of the Services or any Add-Ons; (b) User Content or Feedback; (c) violation of this Agreement; (d) violation, misappropriation, or infringement of any rights of another (including Intellectual Property Rights or privacy rights); or (e) conduct in connection with the Services. We will provide you and you will provide us prompt notice of any third-party Claims against the CAKE.com Parties, and you will cooperate with the CAKE.com 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 CAKE.com Parties will have control of the defense or settlement, at the CAKE.com 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 CAKE.com Parties.
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 fees 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.
The following sections will survive any termination or expiration of this Agreement: 1, 6(e), 8, 9, 12, 15, 16, 18 through 29.
A. Termination by User
A 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 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, 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).
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.
B. Termination by CAKE.com
We reserve the right to change, edit, suspend, delete, and/or cancel any part of our Services, and may terminate this Agreement 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: (a) you commit any breach of this Agreement or Add-On terms and conditions; (b) you do not pay the fees when due in accordance with your Subscription Plan; (c) you violate the rights of CAKE.com or any third party, or are otherwise inappropriate; (d) we discontinue the Services; (e) we are prevented from providing the Services for any reason; (f) if required by law; (g) due to an event beyond our control; or (h) there is a change, cancellation, or revocation of approval by any applicable App Store Provider.
C. User Data Download and Deletion
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.
If any provision of this Agreement is found invalid by any court having competent jurisdiction, 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.
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.
All notices to CAKE.com shall be provided to firstname.lastname@example.org or 2100 Geng Road, Suite 210, Palo Alto, CA 94303, USA.
CAKE.com may give notice to you via the email address associated with your User Account or by mail or courier to the address provided by the applicable Business User.
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.
24. NO WAIVER
Our failure to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision.
25. 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.
26. JURISDICTION AND CHOICE OF LAW; 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 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 by sending a written notice of your claim (“Notice”) to CAKE.com by email at email@example.com or by certified mail addressed to CAKE.com Inc, 2100 GENG RD STE 210, Palo Alto, CA 94303, USA. The Notice must (a) include your name, residence address, email address, and telephone number; (b) describe the nature and basis of the Dispute; and (c) 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 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 26 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 California, except to the extent preempted 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 California and the United States, respectively, sitting in Santa Clara County in the State of California.
- 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.
- If any portion of this Section 26 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from this Agreement; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 26 or the Parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 26; and (c) 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 26 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 26 will be enforceable.
27. ENTIRE AGREEMENT
This Agreement (as amended from time to time), including any agreements incorporated by reference herein, constitutes the entire agreement between the Parties relating to the subject matter hereof and supersedes all prior agreements and understandings between the Parties with respect to that subject matter.
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.
28. 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.
This Agreement is binding upon you, your heirs, executors, beneficiaries, successors, and assigns, and you may not assign this Agreement to any other party without our prior written consent. Such consent may be withheld in our sole discretion, and any purported assignment without such consent shall be null and void. We may assign this Agreement to any party without notice thereof to you.