Terms of Use
These Customer Terms (the “Terms") govern the provision of services by Promise Network Inc. ("Company") to the Customer identified in the applicable Order Form (defined below) (“Customer”). These Terms, and any order form referencing these Terms (the "Order Form") comprise the entire agreement between the parties (collectively, the "Agreement"), and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement prevails over any of Customer's general terms and conditions regardless whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services by Company to Customer does not constitute acceptance of any of Customer's terms and conditions and does not serve to modify or amend this Agreement.
1. Services. Company shall provide the services to Customer as described in the Order Form (the "Services") in accordance with this Agreement.
(a) Platform Services. To the extent the Order Form includes Customer’s access to Company’s software as a service platform(s), such as Promise and PromisePay (the “Platform Services”), Customer’s use and access of the Platform Services is and shall be subject to the Company Terms of Use (available at http://promise-pay.com/terms,) which is incorporated by reference herein.
(b) Scope. With respect to the Services, the parties shall mutually agree upon a scope of work. Company shall use reasonable efforts to meet any performance dates set forth in the scope of work, and any such dates shall be estimates only. Company may, from time to time change the Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services or the fees as set forth in the applicable Order Form.
2. Customer's Obligations. Customer shall (a) cooperate with Company in all matters relating to the Services; (b) respond promptly to any Company request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Company to perform Services in accordance with the requirements of this Agreement; (c) provide such Customer materials, or information as Company may reasonably request to carry out the Services in a timely manner and ensure that any Customer Materials are complete and accurate in all material respects; and (d) obtain and maintain all necessary licenses and consents and comply with all applicable laws with respect to Customer’s access and use of the Services.
(a) Customer's Acts or Omissions. If Company's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Company shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
(b) Customer Materials. Customer is and shall be the owner of any data, information, or other materials provided by Customer to Company (“Customer Materials”). Customer grants Company a non-exclusive, worldwide, limited license to the Customer Materials for the purposes of: (i) providing and improving the Services, as long as such improvements are not derived from the use of personally identifiable data; and (ii) developing, retaining, and publishing broadly applicable learnings and insights (such as industry benchmarks, case studies, measurement criteria) provided that only aggregated or de-identified Customer Materials may be used, such that Customer or any individual cannot be reasonably identified. Customer represents and warrants that, prior to providing any Customer Materials, Customer has obtained all consents and licenses necessary to grant to Company the rights set forth in this Section 2b. Customer agrees to indemnify, defend, and hold harmless Company from and against any claims, damages, or other losses arising in connection with Customer’s breach of this Section 2.
3. Fees and Expenses; Payment Terms; Taxes. In consideration of the provision of the Services by Company and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Order Form. Customer shall pay any invoices in the manner specified in the applicable Order Form. Customer agrees to reimburse Company for all reasonable travel and out-of-pocket expenses incurred by Company in connection with the performance of the Services, as set forth in the Order Form. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder.
4. Company Materials. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights in and to the Platform Services, and any documents, integrations, information, insights, analyses, reports, and other materials provided by Company to Customer under this Agreement, including any such items identified as such in the Order Form (collectively, the "Company Materials") is and shall be owned by Company.
5. Confidential Information. All non-public, confidential or proprietary information of a party, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, "Confidential Information" of such party), disclosed by a party pursuant to this Agreement, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by the other party except as expressly permitted herein or with written consent of Company. Confidential Information does not include information that is (i) in the public domain; (ii) known to the receiving party at the time of disclosure; or (iii) rightfully obtained by the receiving party on a non-confidential basis from a third party. Company Materials shall be considered Confidential Information of Company and Customer Materials shall be considered Confidential Information of Customer. A party shall be entitled to injunctive relief for any violation of this Section.
6. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
7. Limitation of Liability. IN NO EVENT (A) SHALL COMPANY BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE; OR (B) SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, THE AGGREGATE AMOUNTS ACTUALLY PAID TO COMPANY BY CUSTOMER IN THE 6 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
8. Termination. A party may terminate this Agreement with immediate effect upon written notice to the other party, if the other party (a) has not performed or complied with any of the terms of this Agreement, in whole or in part, and fails to cure such noncompliance within 30 days following notice of such; or (b) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. In addition to any remedies that may be provided under this Agreement, Company may terminate this Agreement with immediate effect upon written notice to Customer, if Customer fails to pay any amount when due under this Agreement and such failure continues for 30 days after Customer's receipt of written notice of nonpayment
9. Force Majeure. The Company shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Company including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
10. Governing Law and Jurisdiction. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the City of Oakland and County of Alameda, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
11. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth in the Order Form or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or electronic mail (with confirmation of receipt) or certified or registered mail (in each case, return receipt requested, postage prepaid).
12. Miscellaneous. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. No waiver by Company of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Company. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Company. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
13. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following sections titled: Confidential Information, Governing Law and Jurisdiction, Intellectual Property, Disclaimer of Warranties, Limitation of Liability, Notices, Miscellaneous, and Survival.