Terms of Service

By subscribing to AcuityOD (“Service”), you are agreeing to the following terms of service (“Terms of Service”).

Acuity Consulting LLC, an Idaho limited liability company doing business as AcuityOD (“Company”) reserves the right to update and change these Terms of Service without notice. Continued use of the Service after any such changes shall constitute your consent to such changes.

You (“Customer”) agree to the following terms of service. Violation of any of the terms below may result in the termination of your account.

General Conditions

  1. Customer use of the Service is at their sole risk. The service is provided on an “as is” and “as available” basis.

  2. Technical support is provided via email and phone.

  3. Customer understands that the Company uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service. That said, these vendors may perform hardware maintenance and support that may temporary interrupt service without prior notice to the Company or Customer.

  4. Customer agrees that Company may, upon written consent by Customer, publicly disclose that Company is providing services to Customer and may include Customer’s name in any promotional materials, such as press releases or Company’s website. Neither party may publicly use the other party’s logo or other trade or service mark without that party’s written consent.

  5. Customer may not reverse engineer or otherwise compromise the software.

  6. Customer agrees not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by the Company.

  7. Verbal, physical, written or other abuse (including threats of abuse or retribution) of any Service customer, Company employee or officer will result in immediate account termination.

  8. This Agreement shall not be assignable by Customer without Company’s prior written consent. Company may assign the Agreement in whole or in part upon written notice to Customer.

  9. Customer expressly understands and agrees that the Company shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if the Company has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the service; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the service; (v) or any other matter relating to the service.

  10. The failure of the Company to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The Terms of Service constitutes the entire agreement between you and the Company and govern your use of the Service, superseding any prior agreements between you and the Company (including, but not limited to, any prior versions of the Terms of Service).

  11. This Agreement will be governed by and construed in accordance with the laws of the State of Idaho, without regard to conflict of laws principles. Any claim arising out of this Agreement, including tort claims, must be resolved in Ada County, Idaho.

  12. Questions about the Terms of Service should be sent to support@acuityconsultingllc.com.

 

Service Commitment

  1. Company agrees to provide the Service to the Customer on the Company’s cmCloud data hosting service in accordance with these Terms of Service beginning on the date Customer agrees to these Terms of Service (“Effective Date”).

  2. Company aims to provide a 100% uptime availability of cmCloud data hosting service as covered herein.

  3. Data hosted on cmCloud is securely transmitted point-to-point using TLS 1.2 or later.

  4. Company will back up Customer’s hosted data daily. All data backups will be generated at approximately 1:00 AM in the time zone in which data is hosted and will be retained for a period of seven (7) calendar days. Every effort is made to ensure the reliability of the backed up data in the event that it would be necessary to restore a database. Company, however, makes no guaranties that the backed up database will be error free. Upon request, Company will provide to Customer a current database backup that can be restored to an alternate location to verify the contents and confirm the quality of the backup.

 

Account Terms

  1. Customer is responsible for maintaining the security of your accounts and passwords. Company is NOT liable for any loss or damage from Customer’s failure to comply with this security obligation.

  2. Customer is responsible for all content posted and activity that occurs under your account (even when content is posted by others who have their own logins under your account).

  3. Customer may not use the Service for any illegal purpose.

  4. Customer understands each AcuiyOD login may only be used by one person – a single login shared by multiple people is not permitted.

  5. Customer hereby acknowledges that Company may, from time to time, perform maintenance service, with or without notice to Customer, which may result in the unavailability of Customer’s data. Company will make every effort to notify Customers prior to scheduled maintenance. Notice may be given in various forms including but not limited to email or in-app notice.

 

Initial Term, Payment, User Increase/Decrease and Renewal Terms

  1. The Initial Term (“Initial Term”) of these Terms of Services shall be one (1) year, commencing on the Effective Date and shall automatically renew on the yearly anniversary of the Effective Date unless cancelled or terminated earlier.

  2. Customer shall pay the subscription rate on a timely basis.  Payment may be made on a monthly, quarterly or annual basis.

  3. Customer shall pay the subscription rate using an automatic payment method (such as PayPal, Credit Card or ACH) or by check, payable to Acuity Consulting LLC. The payment method shall be charged the subscription rate three (3) days in advance of the period renewal.

  4. Customer agrees to maintain sufficient funds or credit to cover the subscription rate to be charged. Failed transactions are subject to a $25 fee per incident. A failed transaction may result in the immediate suspension of AcuityOD access.

  5. Should the Customer fail to pay, access to AcuityOD will be suspended and will be inaccessible until payment is made. Data will be preserved at the point access was suspended.

  6. Any user count increase or decrease will result in the new rate being charged at the next billing cycle. There will be no prorating for downgrades between billing periods.

  7. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties.

 

Non-Renewal, Cancellation and Termination

  1. Customer may cancel the Service by submitting, in writing to Company, a notice of non-renewal at least thirty (30) days prior to expiration of the Initial Term or the then-current Renewal Term.

  2. Company may immediately terminate the Services at any time, and without liability, upon the occurrence of any of the following events:

  • (I) Customer’s failure to pay any overdue amount within thirty (30) days after payment is due;

  • (II) Customer’s material breach or violation of any provision of these Terms of Service (other than such violations set forth in clauses (III) and (IV) below) that is not cured within ten (10) days of Customer’s receipt of written notice from Company referencing such breach or violation;

  • (III) Customer ceasing to do business in the normal course, becoming or being declared insolvent or bankrupt, being the subject of any proceeding relating to liquidation or insolvency which is not dismissed within ninety (90) calendar days, or making an assignment for the benefit of its creditors; or

  • (IV) Company determines in its sole discretion that Customer continues to host content that may subject Company to legal liability (in which case, Company may terminate or modify the services to avoid such liability).

  1. Customer may terminate the Service without liability upon the occurrence of a material breach by Company of its obligations to provide the Service according to the Terms of Service that is not cured within ten (10) business days after written notice from Customer describing such breach in detail is received by Company (“Customer Termination”). In the event of a Customer Termination, Company shall refund to Customer all remaining fees on a pro rata basis. If Customer cancels the Service for any reason other than a Customer Termination, Company shall retain all fees through the remainder of the Initial Term or the then-current Renewal Term as applicable.

  2. Upon termination of the Service, Company and Customer shall have no obligations to each other, except as provided for in these Terms of Service. Upon termination of the Service, Customer shall pay all amounts due and payable to Company. Company shall make available all Customer’s data and data records within fourteen (14) days from the date of termination by (i) CD or DVD media, (ii) electronic download via the internet, or (iii) if Customer requests that said data records are needed sooner, via other expedited arrangements. Customer shall incur all additional costs associated with such expedited arrangements. Customer’s data shall only be made available to them provided that Customer has paid all fees then due and payable to Company under these Terms of Service.

  3. All copies of FileMaker Pro and FileMaker Server issued as part of the AcuityOD use must be uninstalled and removed completely from the Customer equipment.

  4. In the event the Customer is leaving AcuityOD for an alternative software vendor, ONLY the Acuity_Data file, exported data provided by Company support staff or equivalent may be given for data migration. Company intellectual property MAY NOT be transferred. Customer providing these files or login access to alternative software vendor is a violation of your license agreement.

  5. When a request is made for data exports to be prepared for the transfer to another software vendor, AcuityOD access will be suspended and fee paid will not be refunded.

  6. All Customer content will be inaccessible from the Service immediately upon cancellation. Within 30 days, all content will be permanently deleted from all backups. This information cannot be recovered once it has been permanently deleted.

  7. If you cancel the Service before the end of your current paid up month, your cancellation will take effect immediately, and you will not be charged again. But there will not be any prorating of unused time in the last billing cycle.

 

Modifications to the Service and Prices

  1. The Company reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, any part of the Service with or without notice. Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Terms of Service. Continued use of the Service after any such changes shall constitute your consent to such changes.

  2. Prices of all Services are subject to change upon 30 days’ notice from us. Such notice may be provided at any time by posting the changes to the AcuityOD (www.acuityOD.com), email or in-app notice.

  3. The Company shall not be liable to Customer or to any third party for any modification, price change, suspension or discontinuance of the Service.

 

Copyright and Content Ownership

  1. All content posted on the Service must comply with U.S. copyright law.

  2. Company shall be the sole owner of all intellectual property, and all derivatives thereof, that Company may develop in the course of providing the Service. Company retain exclusive ownership and rights in its trade secrets, inventions, copyrights, and other intellectual property.

  3. Company claims no intellectual property rights over the material Customer enters into the Service. All data and materials uploaded remain the Customer’s.

  4. The look and feel of the Service is copyright© AcuityOD. All rights reserved. The Customer may not duplicate, copy, or reuse any portion of the Service Layouts, Data Structures or Output formats including but not limited to HTML, CSS, JavaScript, or visual design elements without express written permission from the Company.

 

Confidentiality

  1. Company agrees not to use or disclose any of Customer’s Confidential Information whether or not conceived, originated, discovered, or developed by Company unless Customer consents in writing.  “Confidential Information” is any information or material that is not generally available to or used by others, or the utility or value of which is not generally known or recognized as standard practice, whether or not the underlying details are in the public domain.

  2. With respect to the Confidential Information, Company agrees that:

  • Company shall treat as strictly confidential, and use all reasonable efforts, including implementing reasonable physical security measures and operating procedures, to preserve the secrecy and confidentiality of all Confidential Information received from customer.

  • Company shall make no disclosures whatsoever of any Confidential Information except as is required by law, regulation or court order.

  • In the event of termination of the Service, all Confidential Information shall be returned or destroyed provided Company is not required to retain said Confidential Information by law or court order.

  • Company shall provide full voluntary disclosure to Customer of all unauthorized disclosures and/or unauthorized uses of any Confidential Information; and the obligations of this section shall survive such termination and remain in full force and effect.

 

Legal Investigations

  • Company will comply with any court orders including: discovery orders, subpoenas, freeze orders, search warrants, information requests, wire taps, electronic intercepts and surveillance, preservation requests, and any other order from a court, government entity or regulatory agency (each an “Investigation”). Company may charge Customer or any person seeking compliance with an Investigation for the reasonable costs and expenses associated with Company’s compliance with any Investigation. Company reserves the right to comply with any Investigation without notice to Customer. Customer shall not be entitled to a refund or any service credits. Company shall not be in default under any agreement for Company’s compliance with any Investigation that may cause Customer to incur downtime or requires the sequestering of all or a portion of Customer’s Data.

 

Last updated: February 3, 2020.

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