Standard Service Agreement
Please read the following standard service agreement (hereinafter the “Agreement”) carefully before accessing and using the “Service” (as defined below). The terms & conditions set out under this Agreement (hereinafter the “Terms”) govern the use of the Service by the customer (hereinafter the “Customer” or “you”) unless the Customer and Promoto, Inc. (hereinafter “Promoto”) have executed a separate agreement governing use of the service.
If you accept or agree to this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement and, in such event, “you” and “your” will refer to that company or other legal entity.
By signing up for the Service, you agree that Promoto may send occasional emails relevant to your use of the Service.
Description of Service
Promoto shall provide you with an online, cloud-based customer success platform that collects, tracks and analyses customer data provided by you to Promoto and enables its users to track and manage tasks driven from such customer data, and view custom analytical reports based on such customer data (hereinafter the “Service”). The Service may be provided by Promoto to you through its website; www.customersuccessbox.com (the “Site”); or through Promoto’s web application hosted at https://<customer_specific>.customersuccessbox.com (hereinafter the “App”) and shall include (i) the Site; (ii) the App; (iii) any software or API that is made available to you by Promoto and accessed by you in connection with the Service; (iv) the products, services, and features made available or provided to you by Promoto in connection with the Service; and (v) the content, text, documents, descriptions, products, graphics, photos, sounds, videos, interactive features, trademarks, service marks and logos, contained in or made available through the Service.
Subscription to the Service & Grant of User Licence
Subject to compliance by you of the Terms of this Agreement, and payment of the applicable fees as set out in the Order Form / Purchase Order / Invoice, Promoto hereby grants you, and you accept, a worldwide, non-exclusive, non-transferable, non-sublicensable, and fully revocable license to access and use the Service during the Term (as defined below) for your internal business purposes only.
It is hereby clarified that the subscription to the Service, and use of the aforementioned license, is limited to such number of your employees and independent contractors that have been designated in the Order Form / Purchase Order / Invoice (hereinafter the “End Users”). “Order Form” / “Purchase Order” / “Invoice” means Promoto’s then current Order Form / Purchase Order / Invoice that you enter into with Promoto prior to registering for the Service.
You agree and undertake that you shall not, and shall not allow any permitted End User or third party to: (i) modify, adapt, translate, copy, archive, store, reproduce, rearrange, download, upload, display, perform, publish, distribute, redistribute or otherwise create derivative works based on the Service; (ii) circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Service; (iii) allow any third party to use the Service; (iv) use the Service to process data on behalf of any third party; (v) give, sell, rent, lease, timeshare, outsource, sublicense, disclose, publish, assign, market, resell, transfer or distribute any portion of the Service to any third party, including, but not limited to your affiliates, or use the Service in any service bureau arrangement; (vi) reverse engineer, decompile or disassemble the Service or any components thereof or otherwise attempt to discover the underlying ideas, algorithms, structure or organization of the Service; (vii) disclose or publish the results of any benchmark tests run on the Service; (viii) use any robot, spider, scraper, or other automated means to access the Service for any purpose; (ix) take any action that imposes or may impose (at Promoto’s sole discretion) an unreasonable or disproportionately large load on the Promoto infrastructure; (x) interfere or attempt to interfere with the integrity or proper working of the Service, or any related activities; (xi) modify, translate, patch, alter, change or create any derivative works of the Service, or any part thereof; (xii) disclose your Account (as defined below) user names or passwords to any third party; (xiii) remove, deface, obscure, or alter Promoto’s or any third party’s copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Service, or use or display logos with the Service differing from Promoto’s own without Promoto’s prior written approval; (xiv) hack, deface or otherwise misuse the Service or attempt to gain unauthorized access to other parts of the Service or the underlying technology for the Service; (xv) build a product or develop a service using similar ideas, features, functions, interface or graphics; (xvi) attempt to gain unauthorized access to the Promoto’s computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Service; (xvii) develop, invoke, or utilize any code to disrupt, diminish the quality of, interfere with the performance of, or impair the functionality of the Service and/or (xviii) use the Service in any unlawful manner or in breach of the Terms of this Agreement
In consideration for Promoto providing the Service, you agree to pay to Promoto; the subscription fees set forth under the Order Form / Purchase Order / Invoice.
All fees shall be paid in US Dollars, and are exclusive of all taxes, levies, duties, tariffs, and other governmental charges (including without limitation, VAT) (collectively, “Taxes”). You will be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Promoto’s net income. Overdue payments shall accrue interest at the higher of one and one-half percent (1.5%) per month, or the maximum rate permitted by applicable law, on the overdue amount.
Promoto will invoice you annually in advance for all subscription fees, as well as for the onboarding and implementation fees and applicable Taxes. Each invoice is due and payable fifteen (15) days following the invoice date. You will reimburse Promoto for the reasonable costs of collection, including fees and expenses of attorneys. If you authorize the charging of the applicable subscription fees to your credit card, Promoto will charge the credit card account that you authorize and will continue to charge that card (or any replacement card) during each Renewal Term accordingly. Promoto reserves the right upon thirty (30) days’ notice to you to increase the subscription fees payable for any ensuing Renewal Term(s) to Promoto’s then-current subscription fees, for access to and use of the Service. If payment is not received from your card issuer, you agree to promptly pay all amounts due upon demand.
Notwithstanding any other term herein, you may upgrade or downgrade your subscription plan level or increase or decrease the number of End Users at any time provided that (i) any such change will not derogate from your payment obligations hereunder that are in effect prior to the change; (ii) you provide us with prior written notice; and (iii) you first pay any additional applicable fees at Promoto’s then-current rates. If the foregoing occurs during a Subscription Period (as defined below), you acknowledge that any incremental cost will be prorated over the remainder of the Subscription Period.
Promoto requires that you ensure that each End User of the Service creates a user account (“User Account”) in order to use the Service. To create a User Account, an End User is required to provide his/her full name, email address and postal address (and such other personal information that Promoto may require from time to time) to Promoto along with a unique username and password.
You must not allow anyone other than an authorized End User to access and use the Account. You acknowledge and agree (i) not to exceed the aggregate number of authorized End Users designated in the applicable Order Form / Purchase Order / Invoice unless you first notify Promoto in writing and pay Promoto the required additional subscription fees; (ii) that each End User will provide true, accurate, current and complete information during the registration process (iii) that the login details for each End User may only be used by that End User, and that multiple people may not share the same login details; (iv) to provide accurate and complete Account and login information; (v) to keep, and ensure that End Users keep, all Account login details and passwords secure at all times; (vi) that you remain solely responsible and liable for the activity that occurs in connection with your Account, and the activities of your End Users on or relating to the Service, whether or not you know of such activity, including in cases where the End User has disclosed his or her password to a third party; and (vii) to promptly notify Promoto in writing if you become aware of any unauthorized access or use of your Account or the Service. Promoto may suspend or terminate any End User’s access to the Service upon notice to you in the event that Promoto reasonably determines that such End User has violated the Terms of this Agreement or any other terms between Promoto and such End User pursuant to which such End User is permitted to access and use the Service. You will ensure that all End users comply with the terms and conditions of this Agreement. You will be liable for any violation of the Terms by any End User.
You and your End Users may choose to provide, post, input, submit, or otherwise make accessible to Promoto, data or information about you, your employees, customers, or any third party (“Data”), and Promoto may store such Data on your behalf, all in connection with your use of the Service. You hereby provide Promoto a limited non-exclusive, non-transferable license to use, upload, display, copy, distribute copies of, perform and display publicly, and store Data solely in connection with providing you the Service.
You acknowledge and agree that your indemnity obligation under paragraph 11 (“Indemnity”) paragraph below expressly applies to any third party claims against Promoto relating to your disclosure of any Data to Promoto.
The Service (and all parts thereof), all reproductions, corrections, modifications, enhancements, bug fixes, updates and improvements thereto, and all data related your usage thereof, and all intellectual property rights (i.e. patent rights (including, without limitation, patent applications and disclosures), copyrights, trademarks, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world) therein or relating thereto, are and will remain the exclusive property of Promoto or its licensors. Any rights therein not explicitly granted to you hereunder, are reserved to and shall remain solely and exclusively proprietary to Promoto (or its third party licensors).
For the purpose of this Agreement, the term “Confidential Information” means all confidential information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of the Customer shall include all Data, regardless of whether such Data is marked or otherwise identified as Confidential Information. The Confidential Information of each party shall include any business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; (ii) use the Confidential Information disclosed by the Disclosing Party only for the purposes described under this Agreement; (iii) not reproduce the Confidential Information disclosed by the Disclosing Party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party, and (iv) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
The provisions of this paragraph will not restrict the Receiving Party from disclosing Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the Receiving Party gives reasonable notice to the Disclosing Party to enable it to contest such order or requirement or limit the scope of such request. The Receiving Party when responding to such an order or requirement will only disclose that information that is expressly required.
Representations and Warranties
Promoto represents and warrants that it is fully able and competent to enter into the terms, conditions, obligations, representations and warranties set forth in this Agreement.The Customer represents and warrants that it is fully able and competent to enter into the terms, conditions, obligations, representations and warranties set forth in this Agreement. The Customer further represents and warrants that it has all rights necessary to permit Promoto to perform its obligations and exercise its rights with respect to the Data as contemplated by this Agreement, including all necessary permissions and consents to collect, use and disclose the Data, as contemplated by this Agreement.
To the extent permitted by applicable law, all other representations and warranties, whether express or implied, are explicitly disclaimed by both Parties hereto.
Disclaimer & Exclusion of Warranties
The Service provided by Promoto is on an “as is” and “as available” basis, and without warranties, duties or conditions, statutory or otherwise, of any kind either express or implied. You assume all responsibility for the selection of the Service to achieve your intended results. Promoto hereby disclaims all warranties, express or implied, including but not limited, implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. Promoto does not warrant that the service will be uninterrupted, error free, or that defects will be corrected. Promoto does not offer a warranty or make any representation regarding any information, results, or advice that you obtain through the Service. Any content downloaded or otherwise obtained through the use of the Service or a third party application is done at your own discretion and risk and that you will be solely responsible for any damage to your device or loss of data that results from the download of any such material. No advice or information, whether oral or written, obtained from Promoto or through the Site will create any warranty not expressly made herein. Applicable law may not allow the exclusion of certain warranties, so to that extent such exclusions may not apply.
Promoto will defend any suit or action brought against you to the extent that it is based upon a third party claim that the Service, as provided by Promoto to you pursuant to the Terms of this Agreement, infringe any U.S. patent or any copyright or misappropriate any trade secret, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim awarded in final judgment against or paid in settlement by you. Promoto’s indemnification obligations hereunder are contingent upon: (i) you providing Promoto with prompt written notice of such claim; (ii) you providing reasonable cooperation to Promoto, at Promoto’s expense, in the defense and settlement of such claim; and (iii) Promoto having sole authority to defend or settle such claim.
If use of the Service by you is, or in Promoto’s opinion is likely to be, enjoined due to the type of claim specified above, then Promoto may at its sole option and expense: (i) replace or modify the Service to make them non-infringing and of equivalent functionality; (ii) procure for you the right to continue using the Service under the Terms of this Agreement; or (iii) if Promoto is unable to accomplish either (i) or (ii) despite using its reasonable efforts, terminate your rights and Promoto’s obligation under this Agreement with respect to such Service and refund to you a pro-rata portion of the fees paid for the remaining term during which you would have had access to the Service
Notwithstanding anything contained in this Agreement, Promoto will have no liability for any infringement or misappropriation claim of any kind to the extent that it results from: (i) the combination, operation or use of the Service with equipment, devices, software or data (including without limitation Data) not supplied by Promoto, if a claim would not have occurred but for such combination, operation or use; or (ii) your or an End User’s use of the Service other than in accordance with the Terms of this Agreement.
The foregoing states the entire obligation of Promoto and its licensors with respect to any alleged or actual infringement or misappropriation of intellectual property rights by the Service.
You agree to defend, indemnify and hold harmless Promoto and its affiliates, officers, directors, agents, investors, consultants and employees from any third party claims, damages, liabilities, costs, and expenses (including reasonable attorney’s fees) arising from (i) use of the Service by you and your End Users; and/or (ii) breach of the Terms of this Agreement by you or your End Users. Your indemnification obligations hereunder are contingent upon: (a) Promoto providing you with prompt written notice of such claim; (b) Promoto providing reasonable cooperation to you, at your expense, in the defense and settlement of such claim; and (c) you having sole authority to defend or settle such claim.
Limitation of Liability
Except for liability arising from a breach of paragraphs 3 (“User Restrictions”), 4 (“Service Fee”), 5 (“User Account”) 7 (“Intellectual Property”) or 8 (“Confidentiality”), neither party shall be liable for any indirect, exemplary, special, consequential, or incidental damages of any kind (including without limitation lost profits or revenue) arising out of this Agreement or in connection with the Service, even if such party has been advised of the possibility of such damages. In no event shall the aggregate liability of Promoto for any damages under this Agreement or in connection with the Service exceed either (i) USD 50,000 (United States Dollars Fifty Thousand); or (ii) the total amount of subscription fees actually paid by you and collected by Promoto for the service during the 12 (twelve) months prior to bringing the claim; whichever is lower
Relationship of the Parties
The parties are independent contractors, and nothing contained in this Agreement shall be construed or implied to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
Term & Termination
The Service is provided for the subscription period designated in the Order Form / Purchase Order / Invoice (“Subscription Period”). This Agreement shall become effective on acceptance of the Terms of this Agreement by the Customer and shall continue until expiration of the Subscription Period (the “Initial Term”), unless terminated earlier as provided herein. This Agreement shall automatically renew for successive Subscription Periods (each a “Renewal Term”) unless either party provides the other with at least thirty (30) days written notice prior to the end of the then-current Subscription Period of its intent not to renew. The Initial Term, together with any Renewal Terms, will be referred to collectively as the “Term”.
Either party may terminate this Agreement upon issuing a written notice in the event that the other party materially breaches any of the Terms of this Agreement and, to the extent that the breach can be cured, fails to cure that breach within thirty (30) days of said notice
Upon expiration or termination of this Agreement, (i) you and your End Users rights to access and use the Service will immediately terminate; (ii) you and your End Users will immediately cease all use of the Service; and (iii) each party will return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party. For a period of forty-five (45) days from the effective date of expiration or termination of this Agreement, Promoto will provide you, upon your written request, with a reasonable opportunity to download your Data at a time nominated by Promoto. Promoto reserves the right to permanently delete from its servers (or from any third party service provider’s servers) any Data that may be contained in your Account at any time following said forty-five (45) day period. Promoto does not accept any liability for any deactivation of the Service or Data that is deleted in connection thereto.
For the avoidance of doubt, expiration or termination of this Agreement for any reason shall not relieve you from your obligation to pay Promoto any outstanding payments due under this Agreement and/or Order Form / Purchase Order / Invoice, and Promoto has the right to issue an invoice to you for any such outstanding payments.
This paragraph 14, and paragraphs 3 (“User Restrictions”), 4 (“Service Fee”), 5 (“User Account”) 7 (“Intellectual Property”), 8 (“Confidentiality”), 11 (“Indemnity”), 12 (“Limitation of Liability”), 18 (“Assignment”) 20 (“Compliance with Law”) 20 (“Notices”) and 21 (“General”) shall survive expiration or termination of this Agreement.
Use of Customer Trademarks
You hereby grant Promoto the right to use, reproduce, publish, perform and display, at its sole discretion, your trademarks, service marks, trade name, and/or logo (“Customer Marks”) on the Site, in press releases and in Promoto’s printed marketing materials, solely in connection with the Service. You retain all title in and to Customer Marks, and all goodwill developed from such use shall be solely for your benefit. At any time, you may request in writing that Promoto cease to display Customer Marks and Promoto will subsequently remove Customer Marks from the Site and cease to use Customer Marks in any future press releases and printed marketing materials. Notwithstanding the foregoing, Promoto’s obligation to cease use of the Customer Marks in accordance with the foregoing sentence will not apply if you have explicitly agreed in an Order Form / Purchase Order / Invoice or other sales contract entered into with Promoto that Promoto can use your Customer Marks on the Site, in press releases, or in Promoto’s printed marketing materials.
Governing Law and Jurisdiction
This Agreement and any action related thereto will be governed by the laws of Delaware without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action with respect to the subject matter of this Agreement will be the courts located in Delaware and each of the parties hereto consents to the personal jurisdiction and venue in such courts. All proceedings shall be conducted in English. Notwithstanding the foregoing, Promoto reserves the right to seek injunctive relief against you to enforce the Terms of this Agreement in any venue and court of competent jurisdiction.
This Agreement, together with the Order Form / Purchase Order / Invoice, constitutes the entire agreement between Customer and Promoto regarding the subject matter set forth herein, and this Agreement supersedes all prior proposals, representations agreements and undertakings relating to such subject matter.
Neither party may assign or transfer this Agreement, by operation of law or otherwise, without the prior written consent of the other party; provided, however, that either party may assign this Agreement without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by either party to assign or transfer this Agreement, without the required consent, will be null and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
Compliance with Law
Each party shall comply with all applicable laws relating in any way to its performance of its obligations under this Agreement. You agree to comply fully with all applicable import and export laws and regulations in any jurisdiction to ensure that neither the Service nor any technical data related thereto are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
Any notice, request, instruction or other document to be given by a party under this agreement shall be delivered reliable overnight delivery service or first-class, pre-paid mail, return receipt requested, at the postal address specified by the Customer at the time of creation of the User Account or in case of Promoto at 2035 Sunset Lake Road, Suite B-2, Newark 19702, New Castle, Delaware, United States, or such other address which may be notified by a party in accordance with this clause.
Nothing herein, whether express or implied, shall confer upon any person or entity, other than the parties hereto, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement. No failure or delay by either party in enforcing this Agreement shall be construed as a waiver, nor shall any waiver be effective, unless expressly set forth in a writing executed by such party, and such written waiver will not excuse the performance of any acts other than those specifically referred to therein. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby, and the parties shall substitute for the affected portion an enforceable provision which closest approximates the intent and the economic effect thereof. Section headings are provided for convenience only and have no substantive effect on construction of this Agreement. Except for the Customer’s obligation to pay Promoto, neither party shall be liable for any failure to perform due to causes beyond its reasonable control. Promoto may need to amend and update the Terms of this Agreement from time to time and when Promoto does so, Promoto will communicate such amendments or updates to you (for example, by publishing revised Terms on the Site) so that you can review and agree to the amendments and updates. If you do not agree to such amendments and updates, you will not be able to continue to use the Service.