1. General; Acceptance. In subscribing to the Creatable platform, you agree to be bound by these terms and conditions of service (the “Terms of Service”). The Creatable platform, products, software, and applications are collectively referred to as “Service” in these Terms of Service, forming an integral part of a subscription form and agreement between you and Creatable (“SA”).
2. License and Use of Service. You are hereby granted a license to use the Service in accordance with, and subject to, the terms of the Service herein, during the term of the SA. The Service, including trademarks, service marks and logos (“Marks”), and all software, technology, algorithms, data, and related proprietary rights, pertaining to or in any way derived from, the Service, are all owned by or licensed to Creatable, and/or subject to copyright and other intellectual property rights under law. By using the Service, you are granted a non-exclusive, revocable, and limited license to use the Creatable trademark, logos and related marks (“Creatable Marks”) solely as used within and as part of the Service.
3. Content and Ownership. Content can be contributed by you or for your benefit by any creator on the platform (“Content”), in which case such creators agree to grant you rights into said content, unless otherwise agreed to by you. You hereby grant a license to Creatable to use, consume, and distribute the Content for the purposes of providing the Service. You affirm that you have the necessary licenses, rights, consents, and permissions to the Content, as referenced above.
4. CCPA Compliance. Creatable certifies compliance with the California Consumer Privacy Act (CCPA). Creatable is therefore prohibited from, and shall not under any circumstances, retain, use or disclose any Personal Information (defined below) for any purpose other than for the specific purpose of performing the Services, or as otherwise permitted by the CCPA, including retaining, using, or disclosing the Personal Information for a commercial purpose other than providing the Services.
“Personal Information” = Information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.
5. GDPR. Creatable certifies compliance with the General Data Protection Regulation 2016/679 (“GDPR”). Creatable places cookies on the Service, as such may form part of your website, in order to provide the Service. In such case, you agree to provide notice on your website to your consumers about the placement of cookies, and obtain their consent, in accordance with the requirements of GDPR.
6. Warranty Disclaimer. You agree that your use of the Service is at your sole risk. Creatable makes no warranties or representations in connection therewith, and does not endorse any Content submitted to the Service (including but not limited to any opinion, promotion, recommendation, or advice expressed therein) or any post or communication made by any creator in connection therewith, or any action or inaction taken by any platform in connection with any of the foregoing. Creatable expressly disclaims any and all liability associated with the Content or any of the foregoing. With the exception of the credits afforded by the Service Level Agreement (see below), in no event shall Creatable, its officers, directors, employees, or agents, be liable to you or anyone acting on your behalf for any direct, indirect, incidental, special, punitive, or consequential damages whatsoever resulting from your use of the Content and/or Service.
7. Limitation of Liability, Indemnity IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF REVENUE OR LOSS OF BUSINESS, HOWEVER ARISING, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Each party (“Indemnitor”) shall defend, indemnify and hold the other party (“Indemnitee”) harmless against all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys’ fees, costs related to in-house counsel time, court costs and witness fees) (collectively “Losses”) attributable to or related to: (i) the Indemnitor’s breach of this Agreement; (ii) the Indemnitor’s violation of applicable law, rule, regulation or order; (iii) the Indemnitor’s technology, methodology, service or products; and (iv) the Indemnitor’s violation of its confidentiality obligations (collectively, a “Claim”). Should any Claim give rise to a duty of indemnification under the provisions of this Agreement, then the Indemnitee shall promptly notify the Indemnitor; provided that failure to give such prompt notice will not relieve the Indemnitor of its obligations hereunder, except to the extent of losses that would have been avoided had such notice been given. Indemnitee, at its own expense, may assist in the defense if it so chooses, provided that the Indemnitor shall control such defense and all negotiations relative to the settlement of any Claim and further provided that any settlement intended to bind the Indemnitee shall not be final without the Indemnitee’s express consent, which shall not be unreasonably withheld or delayed. The Indemnitee will fully cooperate with Indemnitor to enable the Indemnitor to fulfill its obligations hereunder with respect to any Claim. Participation in the defense shall not waive or reduce any obligations of the Indemnitor to indemnify or hold Indemnitee harmless.
8. Implementations and Statements of Work. Creatable may from time to time provide implementation and/or integration services to leverage any part of the Service (“Implementations”) by executing one or more Statements of Work (“SOW”). Such SOW shall set forth price and any specific terms associated with such Implementation. All provisions of these Terms of Service shall apply to such SOWs and Implementations. However, in such case, Creatable shall further warrant that each such Implementation shall operate as intended and in accordance with its respective SOW for a period of one (1) year from said Implementation. In such case, the sole redress under this warranty shall be for Creatable to fix said Implementation, provided you have not tampered with any part of such Implementation and/or associated software code which will invalidate this warranty immediately in all cases. All other terms of these Terms of Service limiting and disclaiming warranties of any kind shall apply in full to said Implementations and SOWs.
9. Service Level Agreement. Service Level Agreement Creatable is hereby providing this Service Level Agreement (“SLA”), allowing for Service Credits in the event one or more webpages served by Creatable (the “Enterprise Cloud Service”) is unavailable, falling under the parameters of this SLA.
9.1 Service Credits
9.1.1 Service Credit” means the percentage of the monthly Enterprise Cloud Service Fees for the Enterprise Cloud Service that is awarded to Customer for a validated claim related to breach of the SLA during that month.
9.1.2 Service Credits shall be credited by Creatable on a monthly basis and applied to the following month’s fees, or refunded on a monthly basis if Customer has paid Creatable in advance for more than one month.
9.1.3 Service Credits are as follows:
Each percentage reflects the percentage of Enterprise Cloud Service availability per calendar month, during the term hereof.
9.1.4 Service Level, Priorities and Issue Response Commitment
9.2.1 Customer shall have the remedies under the SLA commencing upon thirty (30) days after the Effective Date of the Terms of Service.
9.2.2 Customer shall notify Creatable via email to email@example.com within thirty (30) business days from the date of the incident it first believes entitles Customer to receive a remedy under the SLA set forth below.
9.2.3 All claims are subject to validation by Creatable. Creatable will use log files, database records, audit logs, and any other information available to validate claims and make a good faith judgment on the applicability of this SLA to said incident. Creatable shall make information used to validate an SLA claim available for auditing by Customer at Customer’s request.
9.2.4 The remedies set forth herein represent Customer’s sole and exclusive remedy for Creatable breach of the SLA defined in this SLA.
9.3.1 Customer shall not have any remedies under any SLA in connection with any Force Majeure Event as defined in the Agreement.
9.3.2 Customer shall not have any remedies under any SLA to the extent any SLA claim is due to: (i) use of the Enterprise Cloud Service outside the scope described in the Agreement and the Documentation; (ii) Customer Equipment and/or third party software, hardware or network infrastructure; (iii) failure of the external internet beyond Creatable network; (iii) any function or content not loading or operating properly on a third-party webpage that is loaded by Creatable; (iv) electrical or internet/bandwidth access limitations or disruptions; (v) any actions or inactions of Customer or any other third party not under the direct control of Creatable; (vi) attacks (i.e. hacks, denial of service attacks, malicious introduction of viruses and disabling devices) caused by third parties outside of Creatable servers; or (vii) a force majeure event, meaning an act of nature, war or political event that results in an impossibility for either side to perform its obligations under this SLA.
9.4.1 Creatable warrants at least 99.9% System Availability during each calendar month excluding Scheduled Maintenance Window and Emergency Maintenance.
9.4.3 “Emergency Maintenance” refers to downtime of the Enterprise Cloud Service outside of Scheduled Maintenance Window hours that is required to complete the application of urgent patches or fixes, or undertake other urgent maintenance activities. If Emergency Maintenance is required, Creatable will promptly contact Customer and provide the expected start time and duration of the Emergency Maintenance and whether Creatable expects the Enterprise Cloud Service to be completely unavailable during the Emergency Maintenance.
9.4.4 “Scheduled Maintenance Window” means the window during which scheduled maintenance of the Enterprise Cloud Service may be performed. The Scheduled Maintenance Window is between the hours of 11:00p.m. and 3:00a.m. local time for the location(s) in which Creatable nodes are deployed. In the event Creatable expects the Scheduled Maintenance Window activity to result in the Enterprise Cloud Service being unavailable to Customer, creatable will provide Customer with a minimum of four (4) business days advance notification.
9.5 Remedy. If the System Availability is less than 99.9%, and if the Customer has fulfilled all of its obligations under the Agreement and this SLA, Creatable will provide the Customer with a Service Credit for the month in which the failure to meet this SLA has occurred. The Service Credit will be calculated in accordance with Section 7.1 above. If the Customer submits one or more validated SLA claims under this SLA in each of three (3) consecutive calendar months or if Customer submits three or more validated SLA claims under this SLA in any period of thirty (30) consecutive days, Customer may terminate this Agreement upon thirty (30) days written notice.
10 Miscellaneous. These Terms of Service shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Creatable reserves the right to charge a service charge on any payments not paid in full by the due date. All late payments will be charged 1 percent per month or 12 percent per year. Any claim or dispute between you and Creatable that arises in whole or in part from the Service shall be decided exclusively by a court of competent jurisdiction located in San Diego County, California. These Terms of Service shall constitute the entire agreement between you and Creatable concerning the Service. If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. These Terms of Service are binding upon and inure to the benefit of Company’s assignees, successors, heirs, and legal representatives.
Last Updated: February 9, 2023