Third Street Data, Inc. (TopFunnel) Terms of Service
Third Street Data, Inc. (“TopFunnel,” “Company,” “we,” “our,” or “us”) provides its Services (as defined below) to Customer (“you” or “your”) subject to this Terms of Service agreement (“ToS” or this “Agreement”). By clicking to accept or agree to this ToS where that option is made available or by accessing or using the Service, you acknowledge that you have read, understood, and agree to be bound by this ToS. If you do not agree to be bound by this ToS, please do not click to accept or agree to this ToS or access or use the Service or the Site.
If you are entering into this ToS on behalf of a business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this ToS, in which case the terms “you” or “your” shall refer to such entity and its affiliates.
The “Service” includes (a) TopFunnel’s website (“the Site”), (b) browser extensions, (c) TopFunnel’s application program interfaces and related materials (the “API” or “APIs”) and (d) all software (“the Software”) (including all software, integrations, and user interfaces made available by TopFunnel), data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Data”). Any new features added to or augmenting the Service are also subject to this ToS.
The Service allows Customer Users to upload email addresses and other contact information (“User Content”) by linking a third-party email and contacts account (such as Gmail) with the Service. By linking an email and contacts account with the Service, Customer authorizes TopFunnel to store your login credentials for that account and to access and use your information from that account as permitted by that account service. This includes accessing the email headers for all messages in your account, as well as email headers and message bodies for any email messages TopFunnel composes for you and any subsequent correspondence in response to such email messages. You may choose to have information uploaded or shared by you removed at any time by contacting us at email@example.com.
By uploading User Content, Customer and Customer Users allow (i) TopFunnel to use that User Content to operate and improve the Service and (ii) other TopFunnel users to view and share the User Content.
By using the Service, Customer and Customer Users, grant to TopFunnel a royalty-free, sub-licensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, copy, publish, distribute, and make derivative works from content and data uploaded to the Service, for purposes of providing the Service.
If TopFunnel receives any notice or claim that any Data, or activities hereunder with respect to any Data, may infringe or violate rights of a third party (a “Claim”), TopFunnel may (but is not required to) suspend activity hereunder with respect to that Data and Customer will indemnify TopFunnel from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred.
License. Subject to the terms of the ToS, TopFunnel grants Customer a non-exclusive, non-transferable license to use the Service for recruiting purposes. Title, ownership and all rights (including without limitation intellectual property rights) in and to the Service shall remain with TopFunnel. Customer may not create derivative works of the Service, use the Service for any purpose other than as described herein, reproduce the Service in a manner inconsistent with this provision or the ToS, sell, assign, license, disclose, distribute or otherwise transfer or make available the Service or any copies of the Service in any form to third parties, alter, translate, decompile, reverse assemble or reverse engineer the Software, or attempt to do any of the foregoing, or remove or alter any proprietary notices or marks on the Service, except to the extent any such prohibition is not permitted by applicable law.
Use by Affiliates. Customer may allow its Affiliates to access and use the Service only if Customer is fully liable for its Affiliates’ use of the Service and their compliance with this ToS. “Affiliate” means an entity that controls, is controlled by, or is under common control with, a party. Customer may allow its Affiliates to purchase the Service under the terms of this ToS only if Customer informs TopFunnel in writing of the specific Affiliate authorized to make a purchase (“Authorized Affiliate”). If an Authorized Affiliate executes an ordering document under the terms of this ToS, that Authorized Affiliate will be (a) deemed a “Customer” for that purchase only; and (b) jointly and severally liable with Customer for its use of the Service and compliance with this Agreement.
Use Limited to the United States. Customer will only use the Service for recruiting purposes to recruit United States-based candidates to fulfill open job requisitions located within the United States. Customer and Customer’s Users must be located in the United States.
Authorized Users. Only Customer-designated employees and contractors (each, a “Customer User”) are authorized to use the Service. Customer will use the Service solely for Customer’s internal use and will not provide access to the Service to any third party, except as otherwise permitted in this Agreement. Customer will notify TopFunnel immediately upon learning of any unauthorized use of the Service or any other breach of security relating to the Service. Customer (a) will designate in writing one Customer User for each seat it purchases; (b) will promptly provide to and maintain with TopFunnel accurate contact information for each Customer User; and (c) will not, and will not permit a Customer User to, share a Customer User’s access to the Service with any other individual. In the event a Customer User ceases employment, takes any type of leave or vacation, or transfers work function, Customer may transfer the Customer User’s seat to a different Customer User. TopFunnel reserves the right to limit the number of transfers of each seat.
Modification of Service. TopFunnel may, in its sole discretion, change, modify, upgrade or discontinue any aspect or feature of the Service in whole or in part.
Restrictions on Access and Use. Customer and Customer Users may not (i) copy or reproduce profile or other data by automated means (including crawlers, plugins, or other scraping mechanisms), (ii) rent, lease, loan, trade, sell, or re-sell access to the Service or any related information or data, (iii) override any security feature of the Service, (iv) use the Service to harass, abuse, or harm others, or (v) use the Service to violate intellectual property rights of others, including patents, trademarks, trade secrets, copyrights, or other proprietary rights. Customer shall only use the Service in a manner that complies with any and all applicable laws in the jurisdictions in which Customer uses the Service.
Use by the United States Government. The Software is provided with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to the restrictions as set forth in subparagraph (c)(1)(iii) of DFARS 252.227-7013 (The Rights in Technical Data and Computer Software) or subparagraphs (c)(1) and (2) of 48 CFR 52.227-19 (the Commercial Computer Software – Restricted Rights), as applicable.
“Confidential Information” means any information disclosed under this Agreement that (a) if tangible, is clearly marked as “Confidential” or with a similar designation; (b) if intangible, is identified as “Confidential” by disclosure at time of disclosure and confirmed in writing to Recipient as being Confidential Information; or (c) from the relevant circumstances should reasonably be known by Recipient to be confidential.
Confidential Information does not include any portion of the information that Recipient can prove (a) was rightfully known to Recipient before receipt from disclosure; (b) was generally known to the public on the Effective Date; (c) becomes generally known to the public after the Effective Date, through no fault of Recipient; (d) was received by Recipient from a third party without any confidentiality obligation; or (e) was independently developed by Recipient without breach of this section 3.
Recipient will (a) use Confidential Information solely to fulfill its obligations under this ToS; (b) protect Confidential Information using the same degree of care it uses to protect its own confidential information of a like nature, but in no event less than a reasonable degree of care; (c) not disclose Confidential Information to any third party except (1) to Affiliates or employees, consultants, and agents who (i) have a need to know it in order to carry out their obligations under this Agreement, and (ii) are under written confidentiality and non-use obligations at least as restrictive as those stated in this ToS or (2) as required by law; and (d) not modify, reverse engineer, decompile, create other works from, or disassemble any Confidential Information, to the extent applicable, unless authorized in writing by disclosure.
Customer will pay the fees for the Service stated in the ordering document within 30 calendar days after receipt of TopFunnel’s invoice, unless otherwise stated in the ordering document. Customer’s purchases are non-cancelable and payment for the Service is non-refundable, except as otherwise stated in this ToS. Customer will maintain complete and accurate billing and contact information with TopFunnel.
To the extent the Service or any portion thereof is made available for any fee, you will be required to select a Subscription and/or execute an Order Form and provide TopFunnel information regarding your payment instrument. You represent and warrant to TopFunnel that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address) that may occur. You agree to pay TopFunnel the amount that is specified in the payment plan in accordance with the Subscription or Order Form and this ToS. You hereby authorize TopFunnel to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let TopFunnel know within thirty (30) days after the date that TopFunnel invoices you. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
You shall be responsible for all taxes associated with Services other than U.S. taxes based on TopFunnel’s net income.
Customer is not obligated to provide TopFunnel or its Affiliates with any suggestions, enhancement requests, or other feedback about the Service or related technology. However, if Customer does provide any feedback to TopFunnel, TopFunnel may use and modify it without any restriction or payment.
This ToS is effective on the date the first ordering document is executed by Customer and TopFunnel (“Effective Date”) and remains in effect until terminated.
Either party may terminate this ToS or an ordering document if the other party materially breaches this Agreement and fails to cure the breach within 14 days after receiving notice of the breach. TopFunnel may suspend Customer’s access to the Service if Customer is in breach of this Agreement and the suspension will continue for as long as reasonably necessary for Customer to remedy the breach. If all ordering documents under this ToS have expired or been terminated, then either party may terminate this ToS for convenience by providing written notice to the other party.
Termination of this ToS or an ordering document will not relieve Customer from its obligation to pay TopFunnel any fees stated in an ordering document. If Customer terminates this ToS or an ordering document because of TopFunnel’s uncured material breach, TopFunnel will refund a pro-rata share of any pre-paid fees under the applicable ordering document. Customer will notify Customer Users that their access to the Service has terminated. Termination of an ordering document does not terminate this ToS; however, termination of this ToS will result in the immediate termination of all ordering documents. The provisions of this ToS that by their nature extend beyond the termination of this ToS will survive termination of this ToS.
THIS DISCLAIMER SECTION IS AN ESSENTIAL PART OF THIS AGREEMENT.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY STATED IN THIS TOS, YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, AND THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TOPFUNNEL EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED. THESE DISCLAIMERS INCLUDE, WITHOUT LIMITATION:
YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF THE SERVICE AND THAT ANY INFORMATION YOU SEND OR RECEIVE DURING YOUR USE OF THE SERVICE MAY NOT BE SECURE AND MAY BE INTERCEPTED OR OTHERWISE ACCESSED BY UNAUTHORIZED PARTIES. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TOPFUNNEL IS NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR PROPERTY OR DATA THAT RESULTS FROM ANY MATERIALS YOU ACCESS OR DOWNLOAD FROM THE SERVICES.
IF YOU RELY ON ANY DATA OR INFORMATION OBTAINED THROUGH OUR SERVICE, YOU DO SO AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF SUCH DATA OR INFORMATION.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TOPFUNNEL SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR, OTHER DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO:
IN EACH CASE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF TOPFUNNEL OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
THIS DISCLAIMER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUSES, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, YOUR LOSS OF PROFITS, ANY THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OR USE OF, ANY RECORD OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS.
UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT TOPFUNNEL IS LIABLE TO YOU EXCEED THE TOTAL FEES ACTUALLY PAID TO TOPFUNNEL BY YOU IN CONNECTION WITHOUT YOUR USE OF THE SERVICE DURING THE SIX MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF TOPFUNNEL FOR (1) DEATH, TANGIBLE PROPERTY DAMAGE, OR PERSONAL INJURY CAUSED BY TOPFUNNEL’S GROSS NEGLIGENCE OR FOR (2) ANY INJURY CAUSED BY TOPFUNNEL’S FRAUD OR FRAUDULENT MISREPRESENTATION.
TOPFUNNEL ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TOPFUNNEL AND YOU.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN THESE STATES, TOPFUNNEL’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
TopFunnel will defend and indemnify Customer, its Affiliates, and their respective directors, officers and employees from and against all third party claims to the extent resulting from or alleged to have resulted from (a) the Service’ infringement of a third party’s intellectual property right; or (b) TopFunnel’s material breach of this Agreement. Customer will defend and indemnify TopFunnel, its Affiliates, and their respective directors, officers and employees from and against all third party claims to the extent resulting from or alleged to have resulted from the infringement of a third party’s intellectual property right by any content, data or other information uploaded into TopFunnel’s system or otherwise provided by Customer; or Customer’s material breach of this Agreement.
Each party will notify the other in writing of any third party claim. The indemnifying party will (a) control the defense of the claim; and (b) obtain the other party’s prior written approval of the indemnifying party’s settlement or compromise of a claim. The indemnified party will (y) not unreasonably withhold or delay its approval of the request for settlement or compromise; and (z) assist and cooperate in the defense as reasonably requested by the indemnifying party at the indemnifying party’s expense.
You may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation installed by TopFunnel on your Equipment (if applicable) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this ToS and will be prohibited except to the extent expressly permitted by the terms of this ToS.
You may not assign this ToS without the prior written consent of TopFunnel, but TopFunnel may assign or transfer this ToS, in whole or in part, without restriction.
If any provision of this ToS is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this ToS will otherwise remain in full force and effect and enforceable. Both parties agree that this ToS, together with any Order Form and/or subscription plan, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this ToS, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this ToS and you do not have any authority of any kind to bind TopFunnel in any respect whatsoever. In any action or proceeding to enforce rights under this ToS, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this ToS will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
The parties will comply with all applicable international, federal, state, provincial and local laws relating to (a) corruption practice, bribery, and acts contrary to the public administration including the US Foreign Corrupt Practices Act of 1977, 15 U.S.C. ¤ 78dd-1, et seq.; (b) discrimination against employees or job applicants based on race, color, religion, sex, national origin, veteran status or disability. and (c) the privacy, confidentiality, security and protection of personal data including the EU Data Protection Directive 95/46/EC as amended and as implemented in the various European Economic Area countries or any similar and applicable legislation enacted outside of the European Economic Area and security breach notification laws (“Data Protection Laws”).
This ToS shall be governed by the laws of the State of California without regard to the principles of conflicts of law. Unless otherwise elected by TopFunnel in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California for the purpose of resolving any dispute relating to your access to or use of the Service.
Please visit https://www.topfunnel.co/privacy-statement to understand how TopFunnel collects and uses user information.