Closely Terms of Use

LAST UPDATED: DECEMBER 3, 2015

1. General

The following Terms of Use (“Terms”) are a legally binding contract between you and Closely, Inc. (“Closely”) regarding your use of the Perch App (“App”), Closely operated websites and support sites (“Sites”), networks, and other third party operated online products and services that link to these terms of service (collectively, the “Service”).

Be sure to read the following terms carefully. By using the App or otherwise using the Service, you acknowledge that you have read, understood and agree to be bound by the Closely Terms of Use, the Closely Privacy Policy, and any additional terms or future modification (collectively, the “Agreement”).

2. Acceptance of Terms

By using the Service, you represent and warrant that you have the right, authority, and capacity to enter into this Agreement and to abide by all of the terms and conditions. If you are not eligible, or do not agree to be bound by and comply with the Terms, then please do not use the Service.

3. Modification of the Terms

Closely reserves the right to change, add or remove any terms or conditions of this Agreement without notice or liability to you. Any changes to this Agreement will be effective immediately after the changes have been posted. We will notify you by revising the date at the top of the policy and, in some cases, provide you with additional notice by sending you an email notification. You should review the Terms from time to time to stay informed about our practices. Your continued use of the Service after the changes become effective constitutes your acceptance of all changes.

4. Eligibility and Registration

You may browse some of Closely’s Sites and view some of the Content without registering, but you are required to register for an account to use the App and other aspects of the Service. When you register, you may be required to provide us with some information about yourself (such as your e-mail address). When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure for any reason (for example, in the event of a loss, theft or unauthorized disclosure or use of your password), then you agree to notify us immediately at support@perchapp.com.

You must be at least thirteen (13) years old to use the Service. By agreeing to the Terms, you represent and warrant to us: (i) that you are at least thirteen (13) years old and (ii) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations. You are not eligible to use the Service if you have previously been suspended from using the Service for any reason and we have not explicitly authorized you to resume using the Service.

If you are using the Service on behalf of an entity, organization, business or company (collectively “Entity”), you are an authorized representative of that Entity with the authority to bind such organization to these Terms; and agree to be bound by these Terms on behalf of such Entity. In such a case, “you” in these Terms refers to your Entity, and any individual authorized to use the Service on behalf of the Entity, including you. We reserve the right to refuse use of the Service to anyone and to reject, remove or suspend a user account at any time for any reason without liability.

5. Content

The Service includes a combination of content provided by Closely or Closely’s partners. All content published, displayed, cached or made available via the Service, including, but not limited to, written content, photographs, graphics, images, illustrations, marks, logos, sound or video clips, and Flash animation (“Content”), is protected by copyrights and may be protected by other intellectual property rights such as trademarks. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works of, distribute, publicly perform, publicly display, or in any way exploit any of the Content made accessible on or through the Service in whole or in part unless expressly permitted by the content owner.

You may be exposed to Content that you find offensive, indecent, objectionable or incorrect. Closely: (a) does not control the Content posted by third parties; (b) assumes no responsibility for monitoring the Service for inappropriate Content; and (c) does not guarantee the accuracy, reliability, integrity or quality of any Content. Under no circumstances will Closely be liable in any way for any Content, including any inaccuracies, errors or omissions in any Content or any Content that is libelous or defamatory, or any loss or damage of any kind incurred as a result of your use of any Content. You agree that you must evaluate and bear all risks associated with the use of any Content, including any reliance on the content, integrity, and accuracy of the Content. Closely reserves the right, but not the obligation, to remove any Content that may, in our sole discretion, violate this Agreement or that is otherwise objectionable.

6. Third Party Sites and Services

You acknowledge that the Service may contain links, descriptions and other material (collectively, the “Links”) that are protected by copyright, trademark or other proprietary rights of Closely and third-party content and/or service providers. Links may require you to register, provide information about yourself and/or open an account prior to being able to utilize the content or services available. Such information may include personally identifiable information. There may also be separate terms, conditions of use and policies associated with the Links and you should carefully review the terms, conditions and policies. Your use of each of those Links is subject to the conditions, if any, that each of those Links have posted. You acknowledge and agree that Closely is not responsible or liable for: (a) the availability or accuracy of such Links; or (b) the content, advertising, services or merchandise available on, through or from such Links. The inclusion of any Link on the Site does not imply that Closely endorses any Link. Your use of the Links is at your sole risk and expense. If you enter into correspondence with, purchase goods or service from, or participate in promotions of, advertisers or sponsors, or other third parties, any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. Closely is not a party to or a guarantor of performance with respect to any transaction or agreement between you and any third party.

7. Requests for Removal of Content

If you believe that Content on the Site has been copied and/or made accessible in a manner that violates another’s intellectual property rights, please see our Copyright Infringement Policy at www.closely.com/copyright

8. Your Conduct

You agree to not use the Service for any purpose prohibited by these Terms. You agree to follow all applicable laws and regulations when using the Service. You agree that you will not use the Service to take any of the following actions:

  • defame, abuse, harass (or advocate harassment of), stalk, threaten, or otherwise violate the legal right of others;
  • publish, post, upload, e-mail, distribute, or disseminate (collectively, “Transmit”) any inappropriate, profane, defamatory, infringing, obscene, indecent, or unlawful content;
  • transmit files that contain viruses, corrupted files, or any other similar software or programs that may damage or adversely affect the operation of another person’s computer, our sites, any software or hardware, or telecommunications equipment;
  • advertise or offer to sell any goods or services for any commercial purpose unless you have our written consent to do so;
  • transmit surveys, contests, pyramid schemes, spam, junk mail, unsolicited mass mailings, advertising or promotional materials, or chain letters;
  • download any file that you know or reasonably should know cannot be legally obtained in such manner;
  • falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or the source of software or other material;
  • restrict or inhibit any other user from using and enjoying Closely’s Service;
  • collect or store passwords or personal information about other users or solicits passwords or personal information from other users;
  • interfere with or disrupt Closely’s Service, servers, or networks;
  • impersonate any person or entity, including, but not limited to, a Closely representative, or falsely state or otherwise misrepresent your affiliation with a person or entity;
  • forge headers or manipulate identifiers or other data in order to disguise the origin of any content transmitted through our Service or to manipulate your presence on our Service;
  • take any action that imposes an unreasonably or disproportionately large load on our infrastructure;
  • engage in any illegal activities;
  • violate the terms and conditions or policies, if any, under which Content is made available;
  • transmit content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
  • promote an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files;
  • modify, adapt, translate, or reverse engineer any portion of the Service;
  • create user accounts by automated means or under false or fraudulent pretenses; or
  • use the Service to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material including those that are deemed threatening or obscene.

9. Data Transmission

The transmission of data or information (including communications by e-mail) over the Internet or other publicly accessible networks is not secure, and is subject to possible loss, interception or alteration while in transit. Accordingly, Closely does not assume any liability for any damage you may experience or costs you may incur as a result of any transmissions over the Internet or other publicly accessible networks, such as transmissions involving the exchange of e-mail with us (including those which may contain your personal information). While we will take commercially reasonable efforts to safeguard the information you provide us in accordance with our Privacy Policy, in no event will the information you provide to us result in any liability to you on our part in the event that such information is inadvertently released by us or accessed by third parties without our consent. Therefore, you should take appropriate precautions and conduct due diligence before disclosing any of your personal information to other users of the Service.

10. Fees and Payment

If you agree to payment for products or services as part of this Service, you will be subject to fees as outlined during the ordering process. Applicable fees will be billed monthly or yearly in advance and auto-renew. You are responsible to contact Closely at billing@perchapp.com to cancel the product or service. Cancellations take effect as of the end of the monthly or annual billing cycle.

Notwithstanding anything set forth herein to the contrary, any disputes about any charges to you under this Agreement must be submitted to us in writing within 60 days of the date such charges are incurred. You agree to waive all disputes not brought within the 60 day period, and all such charges will be final and not subject to challenge.

11. Disclaimer of Warranties

Closely disclaims any and all responsibility or liability for the accuracy, content, completeness, legality, reliability, or operability or availability of Content or information or material displayed, cached or otherwise accessible via the Service. Closely disclaims any responsibility for the deletion, failure to store, or untimely delivery of any Content, information or material. While Closely strives to provide a sterile server environment, Closely makes no claim that the Service will be error free, or that the Service or the servers that operate them are or will be free of viruses or other harmful components. Closely is not responsible for any problems or technical malfunction of any network, computer equipment, software, or traffic congestion on the Internet or Service or combination thereof, including any injury or damage to you or to any person’s computer or device related to or resulting from downloading or accessing any information or material on the Internet through or in connection with the Service. Under no circumstances shall Closely be responsible for any loss or damage, including personal injury or death, resulting from accessing the Service, from any Content or from your conduct or the conduct of other users of the Service, whether online or offline.

THE SERVICE AND ALL CONTENT, MATERIALS, INFORMATION, PRODUCTS AND SERVICES INCLUDED IN, OR ACCESSIBLE FROM THE SERVICE ARE PROVIDED “AS IS,” “AS AVAILABLE” WITH NO WARRANTIES WHATSOEVER. CLOSELY AND ITS LICENSORS, PARTNERS, AFFILIATES AND SUPPLIERS EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW: (A) ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS; AND (B) ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, ACCURACY, TIMELINESS, AND PERFORMANCE OF THE SITE AND SERVICE. CLOSELY, THE MERCHANTS AND THEIR LICENSORS, PARTNERS, AFFILIATES AND SUPPLIERS MAKE NO REPRESENTATION OR WARRANTY: (U) THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; (V) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; (W) ON THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE; (X) THAT CONTENT WILL BE TIMELY, ACCURATE OR RELIABLE; (Y) REGARDING THE QUALITY OF ANY INFORMATION, CONTENT OR OTHER MATERIAL THAT YOU PURCHASE OR OBTAIN FROM THE SITE THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; AND (Z) THAT ANY ERRORS WILL BE CORRECTED.

SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.

12. Indemnification

You hereby agree to indemnify, defend and hold Closely and all of our officers, directors, owners, employees, agents, information providers, affiliates, partners, and licensors (collectively, the “Closely Parties”) harmless from and against any and all liability, losses, costs, expenses and damages (including attorneys’ fees) incurred by any Closely Party in connection with any claim, including, but not limited to, claims for defamation, violation of rights of publicity and/or privacy, copyright infringement, or trademark infringement arising out of: (a) your access of the Service; (b) any use or alleged use of your User ID by any person, whether or not authorized by you; (c) the Content available on the Service; (d) your connection to the Service; (e) your violation of this Agreement; (f) your breach of third party terms, conditions of use or policies associated with the Links; (g) and (h) your violation of any law or the rights of any other person or entity. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You will not settle or resolve any such claim in a manner that imposes any liability or obligation on Closely or affects Closely’s rights in connection therewith without the advance written approval of Closely.

13. Limitation of Liability

UNDER NO CIRCUMSTANCES SHALL CLOSELY OR THEIR LICENSORS, PARTNERS, AFFILIATES AND SUPPLIERS BE LIABLE TO YOU OR ANY USER FROM THE USE OR MISUSE OF OR RELIANCE ON, OR PRODUCTS OR SERVICES AVAILABLE FROM, THE SERVICE, OR ARISING FROM ANY CLAIM RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF CLOSELY, PARTNERS, AFFILIATES AND SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF, OR RELIANCE ON, OR PRODUCTS OR SERVICES AVAILABLE FROM THE SERVICE, FROM INABILITY TO ACCESS OR USE OF THE SERVICE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY INFORMATION OR ADVICE, OR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICE OR RECEIVED THROUGH ANY LINKS PROVIDED ON THE SERVICE. THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, LOSS OF USE, GOODWILL, LOST DATA OR OTHER INTANGIBLE LOSSES. SUCH LIMITATION SHALL FURTHER APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICE OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE SERVICE. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. IN NO EVENT WILL CLOSELY’S: (A) LIABILITY IN CONNECTION WITH A PRODUCT OR SERVICE EXCEED THE AMOUNTS PAID FOR SUCH PRODUCT OR SERVICE; AND (B) TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY YOU DURING THE SIX MONTHS PRECEDING THE BRINGING OF ANY CLAIM, OR FIVE HUNDRED DOLLARS, WHICHEVER IS LESS.

SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

Without limiting the foregoing, under no circumstances shall Closely or its licensors, partners, affiliates or suppliers be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.

14. Our Rights

We have the right, but not the obligation, to take any of the following actions in our sole discretion at any time and for any reason without giving you any prior notice to: (a) restrict, suspend, or terminate your access to all or any part of the Service; (b) change, suspend, or discontinue all or any part of the Service; (c) refuse, edit, move, or remove any content, or other material that is available via the Service; (d) modify, add or remove any terms or conditions of the Agreement; (e) establish general practices and limits concerning access and use of the Service. You agree that we will not be liable to you or any third party for taking any of these actions.

15. Termination

You have the right to terminate or cancel your account at any time. Except as specifically set forth herein or on the Site, there are no refunds for any fees paid. You understand and agree that the cancellation of your account is your sole right and remedy with respect to any dispute with Closely. This includes, but is not limited to, any dispute related to or arising out of: (a) any of the provisions of the Agreement, the Service or Closely’s enforcement or application of the provisions of the Agreement; (b) the Content available through the Service; (c) your ability to access and use the Service; or (d) use of any Links. Closely will not be liable to you for termination of your account or access to the Service. Sections 6 through 17 will survive the termination of this Agreement and your account. Closely may at any time, and in its sole discretion, and without liability, terminate the Service, Sites, App or any product, service or feature offered in or by the Service.

16. Ownership

Except for any third party Content, the Service and all aspects thereof, including the App, Sites and all copyrights, trademarks, and other intellectual property or proprietary rights therein, are owned by Closely and/or its suppliers and licensors (“Closely Property”). You acknowledge that the Closely Property and any underlying technology or software used in connection with the Service contains Closely’s proprietary information. You may not modify, reproduce, distribute, create derivative works of, publicly display or in any way exploit, any of the Closely Property in whole or in part except as expressly provided in this Agreement. Except as expressly and unambiguously provided in this Agreement, there are no implied licenses.

17. Arbitration

We will make every reasonable effort to resolve any disagreements that you have with Closely. If those efforts fail, by using this Service you agree that any claim, dispute, or controversy you may have against Closely arising out of, relating to, or connected in any way with this Agreement this Service, shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA (“Rules and Procedures”). You agree further that: (a) the arbitration shall be held at a location determined by AAA pursuant to the Rules and Procedures (provided that such location is reasonably convenient for you), or at such other location as may be mutually agreed upon by you and Closely; (b) the arbitrator shall apply Colorado law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (c) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only your and/or Closely’s individual claims; and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (d) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Closely will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (e) with the exception of subpart (c) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (c) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor Closely shall be entitled to arbitrate their dispute.

18. Miscellaneous Provisions

This Agreement is governed by and construed in accordance with the laws of the State of Colorado, without giving effect to its conflict of laws provisions or your actual state or country of residence. You agree to submit to the personal and exclusive jurisdiction of the federal and state courts located within the City and County of Denver, Colorado. If for any reason a court of competent jurisdiction finds any provision or portion of the Agreement to be unenforceable, the remainder of the Agreement will continue in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or of the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

Closely may be required by state or federal law to notify you of certain events. You hereby acknowledge and consent that such notices will be effective upon our posting them on the Sites. You authorize Closely to send notices via email as well if Closely decides, in its sole discretion, to do so. You agree to check the Sites for notices, and that You will be considered to have received a notice when it is made available to you by posting on the Sites. References to affiliates, partners, or other terms used to describe the relationship between Closely and certain third parties are for convenience only, used to reflect that there is cooperation between Closely and such third parties, and do not describe, or expressly or impliedly create, a legal affiliation or partnership, or any responsibility of Closely for the actions of such third parties.

No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Closely in any respect whatsoever.

This Agreement, including all terms, conditions, and policies that are incorporated into these Terms by reference, constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of this Agreement will be effective only if in writing and signed by Closely.

In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

Please contact Closely at support@perchapp.com with any questions regarding this Agreement.