Terms of Service

Last Revised: July 12, 2024

These Terms of Service (this “Agreement”) govern your access and use of (i) the website available at davoda.com (together with any successor site, the “Site”), and (ii) all services, content, tools, features, and functionalities offered on or through the Site (collectively, the “Service”), which are provided by or on behalf of Davoda Corporation (the “Company”, “we” or “us”).

For purposes of this Agreement, “you” or “Customer” refers to you as the user of the Service. If the individual accepting this Agreement is acting on behalf of an entity, such individual represents and warrants that they have the right, power and authority to act on behalf of and bind such entity.

BY CLICKING A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT, CUSTOMER HEREBY ACCEPTS TO THE BOUND TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT USE THE SERVICE.

1. DESCRIPTION OF THE SERVICE. The Services provides a technology platform known as “Davoda Scheduler” which is designed to assist with shift scheduling based on information provided by Customer regarding Customer’s staff and other personnel.

2. SERVICE ACCESS; RESTRICTIONS

2.1 Access to the Service. Subject to the terms of this Agreement, the Company hereby grants Customer a non-exclusive right to access and use the Service solely for Customer’s internal business purposes during the Term.

2.2 Usage Restrictions. Customer will not, and will not permit any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, or underlying structure, ideas, know-how or algorithms relevant to the Service (except to the extent such restrictions are contrary to applicable law); (b) modify, translate, copy, or create derivative works based on the Service; (c) use the Service for timesharing or service bureau purposes or otherwise for the benefit of a third party; (d) use the Service to create or develop a competitive product or service; (e) attempt to gain unauthorized access to the Service or make the Service available to anyone other than its designated administrative user; (f) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs through the Service; (g) interfere with or disrupt the integrity or performance of the Service; (h) circumvent, remove, alter or thwart any technological measure or content protections of the Service; (i) use any spider, crawler, scraper or other automatic device, process or software that intercepts, mines, scrapes, extracts or otherwise accesses the Service to monitor, extract, copy or collect information or data from or through the Service; or (j) otherwise use the Service except as expressly permitted herein.

2.3 Administrative Account. As part of the registration process, Customer will identify an administrative username and password for Customer’s account. Customer acknowledges that it is solely responsible for any liabilities arising from any activity that occurs through Customer’s account. Although the Company has no obligation to monitor Customer’s use of the Service, the Company may do so and may prohibit any use of the Service it believes may be in violation of this Agreement.

2.4 Personnel. Customer’s designated administrative user is responsible for uploading to the Service a list of staff and other personnel available for shift scheduling and providing relevant information for each such person, based on their experience level, schedule availability, and other information required by the Service. Customer’s access and use of the Service may be subject to limits on the number of persons to be scheduled, based on the subscription plan selected by Customer. If Customer exceeds any such limits, then Customer will be responsible for paying any fees associated with any additional persons in excess of the limit.

2.5 Modifications. The Company may modify, amend, alter, supplement or replace the Service from time to time, in whole or in part, without any notice to Customer; provided that the Company will use reasonable efforts to provide Customer written notice if the Company believes that any modification, amendment, alteration, supplement or replacement will cause a material adverse effect on Customer’s access or use of the Service. Customer agrees that its entry into this Agreement is not contingent on the Company developing, delivering or otherwise making available any future functionality or features of the Service, or dependent on any oral or written public comments made by the Company regarding future functionality or features of the Service.

2.6 Third Party Services. The Service may include certain features and functionalities that integrate and/or interoperate with certain third party products, services or applications, including Customer’s own applications (the “Third Party Services”). All use of Third Party Services are subject to the applicable terms of the provider of such Third Party Service. The Company is not responsible for any Third Party Service, including for the availability or reliability of a Third Party Service, or the accuracy or completeness of information shared by or available through such Third Party Service, or the privacy practices of the provider of such Third Party Service.

2.7 Free Trials. If Customer accesses the Service on a free trial basis, then the Company will make the Service available to Customer free of charge until the earlier of (a) the end of the free trial period noted when Customer commences a free trial or (b) thirty (30) days after Customer’s initial access to the Service. Unless Customer terminates its access of the Service prior to the end of the trial period, then Customer will be billed by the Company in accordance with Section 5. In addition to all other termination and suspension rights of the Company under this Agreement, the Company may terminate Customer’s access to the Service during a free trial basis at any time at the Company’s sole discretion. Customer agrees and acknowledges that Customer’s access to the Service during a free trial period may be limited and may not include all features, functionalities and tools available on the Service. Notwithstanding anything to the contrary in this Agreement, Customer’s access and use of the Service during a free trial period shall be on “AS IS” basis without warranty of any kind and the Company shall not have any liability of any kind with respect to Customer’s access and use of the Service during a free trial period.

3. DATA

3.1 License to Customer Data. Customer is solely responsible for all data, content, information, and other materials uploaded, posted or otherwise provided to or through the Service by Customer, including all data regarding its staff and other personnel (the “Customer Data”). Customer represents and warrants that Customer has obtained all necessary and appropriate consents, approvals and rights to collect, process, use, store, enhance and disclose the Customer Data and allow the Company to use, store, disclose and otherwise process such Customer Data as contemplated by this Agreement. Customer hereby grants the Company a non-exclusive, royalty-free, fully-paid worldwide license (with the right to sublicense to the Company’s subcontractors performing services for the Company and to third party service providers used by the Company in providing the Service) to access, use, reproduce and create derivative works of all Customer Data to (i) provide the Service and any related Support Services or Professional Services to Customer during the Term and (ii) to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other Company offerings during and after the Term, including to create artificial intelligence and machine learning models used to support the Service. Furthermore, the Company shall have the right to collect and analyze data and other information relating to Customer’s use and access of the Service (“Usage Data”) and the Company will be free (during and after the Term) to use such Usage Data for any lawful purpose, provided that any disclosure of Usage Data shall be solely in aggregate or other de-identified form.

3.2 Data Security. The Company employs a number of technical, organizational and physical safeguards designed to protect the Customer Data. However, no security measures are failsafe and the Company cannot guarantee the security of the Customer Data. Accordingly, Customer acknowledges that it bears sole responsibility for adequate security, protection and backup of the Customer Data.

3.3 Privacy Policy. Any Customer Data that constitutes personal information will be handled in accordance with our Privacy Policy located at https://www.davoda.com/privacy.

4. PROPRIETARY RIGHTS

4.1 Company Rights. The Company shall own and retain all right, title and interest in and to the Service, and all improvements, enhancements or modifications thereto, and all intellectual property rights related to any of the foregoing. All rights to the Service not expressly granted under this Agreement are reserved by the Company.

4.2 Feedback. Customer acknowledges that all suggestions for corrections, changes, additions or modifications to the Service, and any other feedback provided by Customer (collectively, “Feedback”) are the exclusive property of the Company and Customer hereby assigns all rights in and to any Feedback to the Company.

4.3 Customer Rights. As between the parties, subject to the Company’s rights to use the Customer Data as granted by Customer above, Customer owns all right, title and interest in and to the Customer Data.

5. PAYMENT OF FEES

5.1 Fees. To the extent the Service is made available for a fee, Customer will pay the Company for use of the Service in accordance with the pricing terms specified at https://www.davoda.com/privacy, which terms may be updated from time to time. Any fee changes will be effective upon the next renewal of Customer’s subscription. Except as otherwise specified herein, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and fees paid are non-refundable. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated. Customer will be solely responsible for payment of all such taxes, except for those taxes based on the income of the Company.

5.2 Payment. Customer is responsible for providing its payment instrument for the payment of fees. By providing information on Customer’s payment instrument, Customer represents and warrants that such information is true and that Customer is authorized to use the payment instrument. Notwithstanding any amounts owed to the Company hereunder, COMPANY DOES NOT PROCESS PAYMENT FOR ANY SERVICES. To facilitate all payments, whether via bank account, credit card, or debit card, the Company uses Stripe, Inc. and its affiliates (“Stripe”), a third-party payment processor. These payment processing services are provided by Stripe and are subject to the Stripe terms and conditions and other policies available at https://stripe.com/legal and Stripe’s Global Privacy Policy available at: https://stripe.com/privacy (collectively, the “Stripe Agreements”). By agreeing to this Agreement, you also agree to be bound by the Stripe Agreements, as the same may be modified by Stripe from time to time. Customer hereby authorizes the Company or Stripe to bill Customer’s payment instrument for all fees due hereunder in accordance with the payment terms selected by Customer.

6. CONFIDENTIALITY

6.1 Definition. As used herein, “Confidential Information” means all business, technical or third party information of a party, including trade secrets, know-how, processes, pricing and financial data, software and documentation, which are provided, disclosed, or made available to the other party under this Agreement that is either identified, orally or in writing, as confidential or would be understood to be confidential by a reasonable person under the circumstances of disclosure.

6.2 Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose Confidential Information. Confidential Information of the Company includes non-public information regarding features, functionality and performance of the Service. The Receiving Party agrees: (a) to use at least the same care and precaution in protecting the Disclosing Party’s Confidential Information as the Receiving Party uses to protect its own proprietary information and trade secrets, but in no event less than a reasonable degree of care and (b) not to use or disclose to any third person any of Disclosing Party’s Proprietary Information except for the Receiving Party’s employees, attorneys, advisors and potential investors who are bound by written agreement to keep such information confidential. This Section 6 will not apply to the protection of Customer Data, which is subject to the terms of Section 3.2.

6.3 Exceptions. The Disclosing Party agrees that the foregoing Section 6.2 shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party or (d) was independently developed without use of any Proprietary Information of the Disclosing Party.

6.4 Disclosure by Law. Notwithstanding this Section 6, the Receiving Party may disclose the Confidential Information of the Disclosing Party in the event that the Receiving Party receives a subpoena or other government process that purports to require the production of Confidential Information of the Disclosing Party for use in an action or proceeding, provided that the Receiving Party shall (a) promptly inform the entity issuing such subpoena or other government process of the existence of this Agreement, (b) promptly inform the Disclosing Party of the receipt of such subpoena or other government process and (c) not oppose any effort by the Disclosing Party to quash or limit any such subpoena or other government process. In the event the Disclosing Party fails to intervene to quash or limit such subpoena or other government process after being given notice and a reasonable opportunity to do so or such intervention fails or is denied by a court of competent jurisdiction, such Confidential Information may be produced; provided, that such Confidential Information shall not lose its confidential status through such use and the Receiving Party shall take all reasonable and necessary steps to maintain the confidentiality of such Confidential Information during such use.

6.5 Return of Confidential Information. Upon the request of either party, copies and embodiments of such party’s Confidential Information shall be promptly returned to such party by the Receiving Party or destroyed by the Receiving Party, and the Receiving Party agrees to certify such destruction in writing.

7. TERM AND TERMINATION

7.1 Term. Subject to earlier termination as provided below, the term of this Agreement will commence on the date that Customer registers an account on the Service or otherwise accesses the Service and continue until Customer elects to terminate its subscription plan (the “Term”).

7.2 Termination. Either party may terminate this Agreement, with or without cause, upon written notice to the other party. Termination shall be effective at the end of the then-current billing cycle.

7.3 Suspension. Without limiting the Company’s rights under Section 7.2, the Company may immediately suspend access to the Service if Customer breaches this Agreement until such breach is cured.

7.4 Effects of Termination. No termination of this Agreement shall affect any rights or liabilities of a party that accrued prior to the date of termination, including any fees accrued or payable to the Company prior to the effective date of termination.

7.5 Survival. The provisions of Sections, 3.1, 4, 5, 6, 7.4, 7.5, 8 through 14 shall survive any termination of this Agreement.

8. REPRESENTATIONS AND WARRANTIES; DISCLAIMER

8.1 By Both Parties. Each party represents and warrants to the other party that: (a) it has the full right and power to enter into this Agreement and to perform fully all of its obligations hereunder; and (b) it is not party to any other agreements, written or oral, with any third party in conflict herewith.

8.2 By the Company. The Company represents and warrants that the Service will operate in conformity with any specifications set forth in writing by the Company in all material respects. In the event of a breach of the warranty in this Section 8.2, Customer shall notify the Company in writing of the alleged issue, providing details of the problems, and upon confirmation of the issue by the Company, the Company will use commercially reasonable efforts to promptly correct any identified problem or provide work-arounds that address the identified issue to enable the Service to perform in accordance with this limited warranty. If the Company is unable to correct any identified problem, the Company shall notify Customer and Customer have the right to terminate this Agreement upon thirty (30) days’ written notice to the Company and the Company will refund Customer any pre-paid amounts for periods that have not yet occurred on the date of termination. The foregoing shall be the Company’s sole obligation and exclusive liability, and Customer’s sole and exclusive remedy, for any breach of the warranty in this Section 8.2. This Section 8.2 shall not apply to Customer’s use of the Service during any free trial.

8.3 DISCLAIMER. EXCEPT FOR THE WARRANTIES EXPLICITLY SET FORTH IN this section 8, the service, AND ALL DATA AND INFORMATION PROVIDED BY THE COMPANY ARE provided “as is” without warranty of any kind. without limiting the foregoing, to the maximum extent permitted by law, THE COMPANY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE and non-infringement. THE Company does not warrant that the Service will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Service OR THAT THE QUALITY OF THE SERVICE, or any DATA, INFORMATION, OR OTHER MATERIAL OBTAINED THROUGH USE OF THE SERVICE, WILL MEET CUSTOMER’S EXPECTATIONS.

9. INDEMNIFICATION

9.1 By the Company. The Company will (a) defend harmless Customer from any claim, suit or proceeding (“Claim”) brought against Customer by a third party alleging that the Service infringes any intellectual property right of such third party and (b) indemnify and hold Customer harmless from any damages, losses, expenses, costs or liabilities finally awarded to Customer by a court of competent jurisdiction as a result of such Claim. Notwithstanding the foregoing, the Company will have no obligation under this Section 9.1 or otherwise with respect to any Claim to the extent based upon (i) any unauthorized use, reproduction, or distribution of the Service or any breach of this Agreement by Customer, (ii) any combination of the Service with other products, equipment, software or data not supplied by the Company, (iii) any modification of the Service by any person other than the Company or its authorized agents or contractors or (iv) any activity after the Company has provided Customer with a work around or modification that would have avoided such issue without materially adversely affecting the functionality or availability of the Service (items (i) through (iv), the “Excluded Activities”). If the Company reasonably believes that all or any portion of the Service, or the use thereof, is likely to become the subject of any infringement Claim, the Company may procure, at the Company’s option and expense, for Customer the right to continue using the Service in accordance with the terms hereof, replace or modify the allegedly infringing Service to make it non-infringing, or, in the event the preceding is infeasible or not commercially practicable, the Company may, in its sole discretion, terminate this Agreement upon written notice to Customer and the Company will refund Customer any pre-paid amounts for periods that have not yet occurred on the date of termination. This Section 9.1 shall be Customer’s sole and exclusive remedy, and the Company’s sole and exclusive liability, with respect to any infringement claims relating to Customer’s use of the Service. This Section 9.1 will not apply to use of the Service during any free trial.

9.2 By Customer. Customer will indemnify, defend and hold harmless the Company from any damages, losses, expenses, costs or liabilities incurred by the Company in connection with any Claim brought against the Company by a third party arising from or related to (a) an Excluded Activity, (b) the Company’s use of Customer Data in accordance with this Agreement, and (c) Customer’s use of the Service in breach of the terms of this Agreement.

9.3 Indemnification Procedures. A party seeking indemnification under this Section 9 will provide the indemnifying party with prompt written notice of the relevant Claim (provided that the failure to provide prompt notice will only relieve the indemnifying party of its obligations to the extent it is materially prejudiced by such failure) and permit the indemnifying party to control the defense of such Claim. The indemnified party may employ counsel at its own expense to assist it with respect to such Claim; provided, however, that if such counsel is necessary because the indemnifying party does not assume control, the indemnifying party will be responsible for the expense of such counsel. The party controlling the defense of a Claim shall keep the other party advised of the status of such Claim and the defense thereof. Neither party shall have the authority to settle a claim on behalf of the other party.

10. LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR AMOUNTS PAYABLE IN CONNECTION WITH EITHER PARTY’S BREACH OF SECTION 6, AND CUSTOMER’S BREACH OF SECTION 2.2, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY PARTY CLAIMING THROUGH THE OTHER PARTY FOR (A) ANY INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) ARISING OUT OF THIS AGREEMENT OR ANY DELAY OR INABILITY TO USE THE SERVICE OR (B) EXCEPT FOR AMOUNTS PAYABLE BY CUSTOMER, ANY DAMAGES IN EXCESS OF THE AGGREGATE FEES PAID OR PAYABLE TO THE COMPANY HEREUNDER IN THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE CLAIM FIRST AROSE, IN EACH CASE WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.

11. GOVERNMENT MATTERS. Customer may not remove or export from the United States or allow the export or re-export of the Service, 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 Service (including the software, documentation and data related thereto) 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 Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

12. MISCELLANEOUS. Neither party will have the right to assign this Agreement, except that either party may assign its rights and obligations without consent of the other party in connection with a merger or sale of all or substantially all of such party’s assets or stock. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement constitutes the full and entire understanding and agreement of the parties with regard to the subject matter hereof, and supersedes all prior agreements or understandings, written or oral, between the Parties with respect to the subject matter hereof. This Agreement and any dispute arising hereunder shall be governed by the laws of the State of Washington, without regard to the conflicts of law provisions thereof.All disputes arising out of or in connection with this Agreement shall be settled by arbitration in Seattle, Washington before a neutral single arbitrator, whose decision will be final and binding and the arbitral proceedings will be administered by JAMS under its Comprehensive Arbitration Rules and Procedures then in effect. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The parties undertake to keep confidential all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in legal proceedings before a court or other judicial authority. Notwithstanding the foregoing, either party hereto shall be entitled to seek injunctive or equitable relief from a court of competent jurisdiction without the necessity of posting bond or proving actual damages. Without limiting anything herein, and except for Customer’s payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including, but not limited to, governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, epidemics, pandemics and power failures. For all purposes under this Agreement each party shall be and act as an independent contractor and shall not bind nor attempt to bind the other to any contract. Any notices in connection with this Agreement will be in writing and sent, if to Customer, to the e-mail address associated with Customer’s account, and if to the Company, as specified in Section 14 below, or in each case such other address as may be properly specified by written notice hereunder. As part of the Company’s sales and marketing efforts, the Company may publicly identify Customer by name as a customer and may describe the services provided to Customer in general and Customer hereby grants the Company a non-exclusive license to use and reproduce Customer’s name, logos and trademarks as part of the Company’s such sales and marketing efforts.

13. AMENDMENTS. The Company reserves the right, at its sole discretion, to change or modify portions of this Agreement at any time. If the Company does this, it will post the changes on this page and will update the “Last Revised” date at the top of the page of this Agreement. The most current version of this Agreement is available at any time at https://www.davoda.com/terms. The Company will also use commercially reasonable efforts to notify Customer of any material changes thirty (30) days prior to any such material changes taking effect, either through the Service user interface, or email via the email address associated with Customer’s Account, or through other reasonable means. Customer’s continued use of the Service after the date any such changes become effective constitutes Customer’s acceptance of the new Terms of Service. If any change to this Agreement is not acceptable to Customer, Customer’s only remedy is stop using the Service.

14. CONTACT. Please contact the Company at support@davoda.com to report any violations of this Agreement or to pose any questions regarding this Agreement or the Service.

At Davoda, we are committed to transforming how small businesses manage their day-to-day staffing needs with Scheduler, our easy-to-use, need- and resource-aware staff roster building tool.