Growth Plan – Terms & Conditions
SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement and the “Policy”, Company will use commercially reasonable efforts to provide Customer the Services in accordance with companies standard support practices. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account.
1.2 Company grants Customer the non-exclusive, non-transferable and non-sublicensable right, limited in time to the term of this contract, to use the SaaS solution to the extent described in this Agreement. The Customer’s aforementioned right of use also includes the use of all protected rights and legal assets on which the use of the SaaS solution by the Customer within the scope of this Agreement depends.
RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
2.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with the Company’s standard published policies (https://userpilot.com/terms/) then in effect (the “Policy”) in addition to the here mentioned terms, and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the Policy or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the Policy.
2.3 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or was known to it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to Receiving Party without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law.
3.2 Customer shall own all rights, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Company shall own and retain all rights, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term of the 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 Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business, this data shall be anonymized and encrypted. No rights or licenses are granted except as expressly set forth herein.
PAYMENT OF FEES
4.1 Customer will pay Company the then-applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Upon renewal after Initial Service Term, the Service Fee will be subject to an automatic increase of 7%. This uplift will apply automatically and the updated Service Fee will be reflected in your renewal invoice. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon 30-day prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company 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 Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least 30 days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon 30-day notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement, which by their nature should survive termination, will survive termination, including accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. But Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. Except as expressly set forth in this section, the Services are provided “as is”, and Company disclaims all warranties, express or implied, including implied warranties of merchantability and fitness for a particular purpose and non-infringement.
LIMITATION OF LIABILITY
Notwithstanding anything to the contrary, except for bodily injury of a person, Company and its suppliers (including all equipment and technology suppliers), officers, affiliates, representatives, contractors, and employees shall not be responsible or liable with respect to any subject matter of this Agreement or terms and conditions related thereto under any contract, negligence, strict liability, or other theory for: (a) error, interruption of use, loss, inaccuracy, or corruption of data; cost of procurement of substitute goods, services, or technology; or loss of business; (b) any indirect, exemplary, incidental, special, or consequential damages; (c) any matter beyond Company’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by Customer to Company for the Services under this Agreement in the 12 months before the act that gave rise to the liability, in each case, whether or not Company has been advised of the possibility of such damages.
MISCELLANEOUS
This Agreement constitutes the sole agreement of the parties with respect to its subject matter. It supersedes any prior written or oral agreements or communications between the parties. It may not be modified except in a writing signed by the parties.
This Agreement binds and inures to the benefit of the parties and their respective heirs, personal representatives, successors, and (where permitted) assignees.
This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without Customer’s consent.
Company will serve as Customer’s independent contractor. No employer-employee, partnership, joint-venture, or agency relationship exists between Company and Customer. Customer does not have any authority to bind Company in any respect whatsoever.
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.
Unless the context requires otherwise, the term “including” means “including but not limited to.”
Headings are for convenience only and do not affect the interpretation of this Agreement.
Delaware law applies to this Agreement without regard for any choice-of-law rules that might direct the application of the laws of any other jurisdiction.
The parties consent to the venue of New Castle County, Delaware, for resolution of any dispute regarding this Agreement. The parties waive the right to a trial by jury.
In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees from the losing party.
All notices under this Agreement 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 e-mail; 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.
No term or condition of this Agreement will be deemed waived, nor will there be any estoppel to enforce any provisions of this Agreement, except by a statement in writing signed by the party against whom enforcement of the waiver or estoppel is sought. Any written waiver will not be deemed a continuing waiver unless specifically stated so, will incorporate only as to the specific term or condition waived, and will not constitute a waiver of such term or condition for the future or as to any act other than that specifically waived. The failure of either party to enforce at any time any of the provisions of this Agreement will not be construed as a waiver of such provisions or of the right of such party thereafter to enforce any such provisions.
This Agreement may be signed in counterparts, each one of which is considered an original, but all of which constitute one and the same instrument.
Handwritten, electronic, and facsimile of handwritten signatures on this Agreement will all be deemed original signatures.
Customer grants Company a non-exclusive, non-transferable, royalty-free license to display Customer’s name and logo on Company’s website solely for the purpose of identifying Customer as a current customer of the Company. This usage shall be limited to inclusion on webpages that list or reference Company’s customers and shall not imply any endorsement or partnership beyond the existing customer relationship. Upon written request by Customer, Company shall promptly remove Customer’s name and logo from its website