This Terms of Service was last updated on October 12, 2022
These Terms of Service (“Terms”) are a contract between you and Pluot Communications (doing business as Daily.co and Daily). They govern your use of Pluot’s sites, services, mobile apps, products, and content (“Services”).
Effective Date: October 12, 2022
Daily is a communications company that provides innovative, fast, reliable video calling products and services.
When you create an account with Daily by completing the sign-up process on our web site, or by ordering one of our products, you agree to these Terms of Service. You also confirm that you are at least 18 years of age. If you use our services for business purposes, that business will be bound by these Terms of Service.
If you have any questions regarding these Terms of Service, please email firstname.lastname@example.org
By using Daily, you agree to these Terms of Service. If you don’t agree to any of the Terms, you can’t use any of our products or services. We may change these Terms from time to time. By using Daily on or after a change in the Terms of Service, you agree to the new Terms.
In this agreement, “we,” “us”, “our,” “Daily,” and “Daily.co” refer to Pluot Communications, Inc, doing business as Daily and/or Daily.co.
2. Description of Services
Daily’s “Services” includes (a) our website, (b) our video applications and related technologies, including but not limited to the service known as “Daily”, and the Daily developer APIs (c) our video hardware devices (“devices”), (d) all Software (as defined below); and (e) any data, reports, text, images, sounds, video, and content made available by us through any of the foregoing. Any new features added to or augmenting the Services are also subject to this Agreement.
3. General Conditions
Subject to the terms and conditions of this Agreement, you may purchase, access and use the Services only for lawful purposes. All rights, title and interest in and to the Services and their components will remain with and belong exclusively to Daily. You shall not (a) use the Services in any unlawful manner (including without limitation in violation of any data, privacy or export control laws), (b) in any manner that interferes with or disrupts the integrity or performance of the Services or their components, or (c) modify, adapt or hack the Services to, or otherwise attempt to gain unauthorized access to, the Services or their related systems or networks. You shall comply with any codes of conduct, policies or other notices Daily provides you or publishes in connection with the Services, and you shall promptly notify Daily if you learn of a security breach related to the Services.
We are entitled to have third parties perform a part of our Services or proceedings. We do not guarantee that our Services are always available or without disturbance. We will not have any obligation to compensate you for unavailability or non-performance of our Services. Daily shall not be liable for any short-term or long-term interruption of data transmission sent through our platform.
We may decide in our sole discretion if we are able to provide you with our Services. We may change the eligibility criteria for the use of our Services at any time, in our sole discretion. If we decide we do not want to provide you with our Services, we will refund any unused prepaid credits or balance.
Any software that may be made available by Daily in connection with the Services, including without limitation software contained on devices (collectively, “Software”), contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this Agreement, Daily hereby grants you a personal, non-transferable, non-sublicensable and non-exclusive right and license to use the device and object code of any Software solely in connection with the Services, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Software; or remove any proprietary notices or labels. You agree not to access the Services by any means other than through the interface that is provided by Daily for use in accessing the Services. Any rights not expressly granted herein are reserved and no license or right to use any trademark of Daily or any third party is granted to you in connection with the Services. At any time, we may cancel or revoke your access to any part of Daily, including but not limited your access to and use of a domain you have chosen.
4. Customer Data and Equipment
All data processing activities by the Services will be governed by the
Data Processing Addendum (“DPA”) incorporated by reference herein.
You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you stream, deliver, provide or otherwise transmit or store (hereafter “transmit(ting)”) in connection with or relating to the Services (“Your Content”). You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account, including as carried out by all users on your account. Daily may access your account in order to respond to your requests for technical support.
By transmitting Your Content on or through the Services, you grant Daily.co the right to display and distribute Your Content in connection with the operation of the Services on your behalf. Daily has the right, but not the obligation, to monitor Your use of the Service or Content, or Your Content, to confirm compliance with the terms of this Agreement, applicable law and the rights of third parties.
You further agree that Daily may block, remove or disable any Content at any time if Daily.co reasonably suspects such Content violates the terms of this Agreement, applicable law or the rights of any third party, or might cause harm to Daily.co, the Service or any of its users (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content). Notwithstanding anything to the contrary, Daily.co shall have the right to collect and analyze data and other information relating to the Services and related systems and technologies (including, without limitation, information concerning Your Content and data derived therefrom), and Daily will be free (during and after the term of this Agreement) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Daily offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to Daily’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. Daily will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service.
To the extent the Services or any portion thereof is made available for any fee, you may be required to select a payment plan and provide Company with information regarding your credit card or other payment instrument. You shall be responsible for all taxes associated with Services other than U.S. taxes based on Daily’s net income. If you provide Daily with information regarding your credit card or other payment instrument, you represent and warrant to Daily that such information is true and that you are authorized to use that payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You hereby authorize Daily to bill your payment instrument upon purchase of a plan, device or license in accordance with the terms agreed upon by you and Daily in the applicable Order Form or on the Site, as applicable, and you further agree to pay any charge so incurred. Daily may also bill you through an invoice, at its election. All invoices must be paid within thirty (30) days after the mailing date of the invoice. Unpaid amounts 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 and may result in immediate termination of Services.
6. Representations, Warranties, and Disclaimer
You represent and warrant to Daily that (i) you have full power and authority to enter into this Agreement; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your transmitting and other activities (and allow Daily to perform its obligations) in connection with the Service without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and Daily.co’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; (iv) you are eighteen (18) years of age or older; and (v) you will use the Service only in compliance with all applicable laws and regulations.
Daily warrants that the devices, when provided to you by us, will conform in all material respects to the applicable specifications provided by us to you. Such warranty does not apply to units that have been damaged, mishandled, mistreated or used or maintained or stored other than in conformity with such specifications and Daily.co’s instructions. EXCEPT FOR BODILY INJURY, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE FOREGOING WARRANTY SHALL BE THE REPAIR OR REPLACEMENT OF OR (AT DAILY’S OPTION OR IF REPAIR OR REPLACEMENT IS IMPRACTICAL) REFUND FOR RETURNED NON-CONFORMING UNITS FOR WHICH FULL DOCUMENTATION AND PROOF OF NON-CONFORMITY IS PROVIDED TO DAILY.CO WITHIN ONE YEAR IN THE CASE OF HARDWARE COMPONENT, OR THIRTY DAYS IN THE CASE OF SOFTWARE (WHETHER OR NOT EMBEDDED), AFTER THE ORIGINAL NON-CONFORMING UNITS (BUT NOT REPLACEMENTS) ARE SHIPPED BY DAILY.
Daily warrants that it shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Daily or by third-party providers, or because of other causes beyond Daily’s reasonable control, but Daily shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, DAILY 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 DEVICES OR THE SERVICE.
DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICE, INCLUDING THE DEVICES, SITE AND CONTENT, AND ANY SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND DAILY.CO EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT DAILY.CO DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM DAILY.CO OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
7. Indemnification and Limitation of Liability
Customer will defend Daily, its officers, directors, employees, and the successors and assigns of the foregoing from and against any and all claims by an unaffiliated third party directly or indirectly arising from or related to (i) facts that, if true would constitute a breach of this Agreement by Customer, (ii) Customer’s or its End Users’ access to, use, misuse or illegal use of the Daily Service, Customer Data or End User Data, or (iii) the violation or infringement by the Customer Service or the Customer Products of such third party’s U.S. Intellectual Property Rights. Daily reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case Customer agrees to cooperate with any reasonable requests to assist Daily’s defense of such matter.
IN NO EVENT WILL DAILY BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OTHER LEGAL OR EQUITABLE THEORY FOR: (I) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE; COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, OR (II) ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES PAID OR PAYABLE TO DAILY HEREUNDER DURING THE SIX MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
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, DAILY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
8. Term, Termination, and Effects
This Agreement shall commence when you sign up for an account or order one of our products, and unless otherwise indicated on an Order Form shall continue on a month-to-month basis until terminated as set forth herein.
Daily may terminate this Agreement, without cause or notice, at any time. If we terminate this agreement, we will refund any unused prepaid credits or balance.
Upon expiration or termination of this Agreement, all licenses granted to the Services shall expire. Daily shall discontinue the provision of the Services, and Customer shall immediately pay any outstanding invoices for services rendered through the date of termination.
9. Governing Law
This Agreement shall be governed by the laws of the State of California without regard to the principles of conflicts of law. Unless otherwise elected by Daily 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.daily.co/privacy to understand how Daily collects and uses personal information.
Daily may use your name and/or company name as a reference for marketing or promotional purposes on Daily’s website and in other communication with existing or potential Daily customers, subject to any reasonable trademark guidelines you may provide.