Terms of Service
Effective date: September 10th, 2024
This Service Agreement (this “Agreement”) is entered into by and between you (“you” or “your”) and Upbound.ai, Inc. t/a Freckle (“Freckle”) (you and Freckle each, a “party” and collectively, the “parties”) and sets forth the terms and conditions under which you may subscribe to certain products and services of Freckle.
If the user of the Service is a company, organization, or other entity rather than an individual, then (a) “you” includes you and that entity; (b) “your” has the corresponding meaning; and (c) you represent and warrant that you: (i) are an authorized representative of that entity with the authority to bind such entity to this Agreement, (ii) have read and understand this Agreement, and (iii) agree to this Agreement on behalf of such entity.
By accessing or using the Service, or by clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read, understood, and agree to be bound by this Agreement and to the collection and use of your information as set forth in our Privacy Policy available at https://freckle.io/privacy/ (the “Privacy Policy”), whether or not you are a registered user of the Service. Freckle reserves the right to modify the terms of this Agreement and will provide notice of these changes as described below.
1. FRECKLE PRODUCTS AND SERVICES
1.1. Provision of Products and Services.Subject to the terms and conditions of this Agreement, Freckle will provide you with the online software-as-a-service products and services on a subscription basis for the Subscription Term (defined below), and such other products and services (the “Service”). The Service includes Freckle Software (as defined below).
1.2. Access to Products. You may access and use the Service on a non-exclusive and non-transferrable basis, solely for its internal business purposes, and only in accordance with the terms and conditions of this Agreement and any end user technical documentation provided by Freckle for the Service (“Documentation”). To the extent Freckle provides you with any downloadable software, agents, SDKs, APIs, or other code in connection with the Service (“Freckle Software”), Freckle grants to you a non-exclusive, non-transferable, non-sublicensable, limited right and license to use the Freckle Software during the applicable Subscription Term solely as reasonably necessary for your use of the Service in accordance with this Agreement. For clarity, except for Freckle Software, Freckle’s software products are provided on a remote, software-as-a-service basis only.
1.3. Permitted Users. You may permit your customers, employees, agents, independent contractors, and consultants to use the Service on your behalf (“Permitted Users”), provided you remain responsible for the acts and omissions of each such Permitted User. If you are given passwords to access the Service on Freckle’s systems, you shall require that all Permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. You shall be responsible for any and all actions taken using your accounts and passwords.
1.4. Use by Affiliates. Each of your Affiliates (defined below) will be entitled to access and use the Service in accordance with this Agreement; provided that you shall remain responsible to Freckle for the actions and omissions of each such Affiliate (and each of such Affiliate’s Permitted Users). The terms of this Agreement will govern as if this Agreement were separately executed by the applicable Affiliate of yours, and the term “you” as used in this Agreement will be deemed as applying to such Affiliate of yours for the purposes of this Agreement. “Affiliate” means an entity that, directly or indirectly, controls, is controlled by, or is under common control with a party. As used herein, “control” means the power to direct the management or affairs of an entity or the beneficial ownership of fifty percent (50%) or more of the voting equity securities or other equivalent voting interests of an entity.
1.5. General Restrictions. You shall not, and shall not allow any third party (including any Permitted User) to: (a) sell, rent, lease or use the Service for time sharing purposes; (b) use the Service to help develop, or help provide to any third party, any product or service similar to or competitive with the Service; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code of the Service; (d) copy, modify or create derivative works from the Service or any Documentation; (e) remove or obscure any copyright or proprietary or other notice contained in the Service or Documentation; (f) propagate any virus, Trojan horse, or other malware or programming routine intended to damage any system or data; (g) access or use the Service in a manner intended to circumvent or exceed service account limitations or requirements; (h) use any Service in a manner that violates any applicable law, regulation, or legal requirement or obligation; (i) use any Service in violation of any third-party rights of privacy or intellectual property rights; (j) use or permit the use of any tools in order to probe, scan or attempt to penetrate or benchmark any Service; (k) post, upload, transmit or provide any Your Data that Freckle reasonably deems to be unlawful, harmful, abusive or otherwise objectionable; or (l) use the Service except as expressly permitted by this Agreement.
2. YOUR OBLIGATIONS; YOUR DATA
2.1. Generally. “Your Data” means information, data, and other content, in any form or medium, that is downloaded, or otherwise received, directly or indirectly (including via a third-party provider), from you (including from a Permitted User on your behalf) by or through the Service, or provided by you to Freckle to input into the Service. You represent and warrant to Freckle that your use of the Service and all Your Data is and will be at all times compliant with all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data (including personal data). You are solely responsible for (i) the accuracy, content, and legality of all Your Data, and (ii) for providing notices and obtaining consents as legally required from your Permitted Users and your customers and end users (as applicable) for the collection, use, processing, and transfer of your Data in connection with the Service. You represent and warrant to Freckle that you have sufficient rights in Your Data to grant the rights granted to Freckle in Section 2.2 below and that Your Data does not infringe or otherwise violate the rights of any third party. Unless otherwise agreed to in writing, you are prohibited from downloading, or otherwise receiving, directly or indirectly (including via a third-party provider), from you (including from a Permitted User on your behalf) by or through the Service, or provided by you to Freckle to input into the Service, Your Data that includes any sensitive information, including but not limited to, a social security number, passport number, driver’s license number, or similar identifier, credit card or debit card number, or any other information which may be subject to specific data privacy and security laws including the Gramm-Leach-Bliley Act (GLBA), the Health Insurance Portability and Accountability Act (HIPAA), the Health Information Technology for Economic and Clinical Health Act (HiTECH), the Family Educational Rights and Privacy Act of 1974 (FERPA), the Children’s Online Privacy Protection Act (COPPA), or the GDPR or any other data which is considered to be sensitive, including consumer health data or precise geolocation, or which could give rise to notification obligations under data breach notification laws. We do not make any representations as to the adequacy of the Service to process Your Data or to satisfy any legal or compliance requirements which may apply to Your Data, other than as described herein.
2.2. Rights in Your Data. As between the parties, you shall retain all right, title and interest (including any and all intellectual property rights) in and to Your Data. You hereby grant to Freckle a non-exclusive, worldwide, irrevocable, transferable, sublicensable (through multiple tiers), fully paid-up, royalty-free right and license to use, copy store, transmit, modify, and display Your Data in order to: (a) provide the Service to you; and (b) perform such other actions as authorized or instructed by you in writing (email to suffice).
2.3. De-identified Data. Freckle may create and use de-identified data related to your use of the Service in order to improve Freckle’ products and services, to develop new products and services, and for its other business purposes (and such de-identified data will be owned by Freckle).
2.4. Third Party Application Service Providers. You may be able to access and use certain optional third-party services or products (e.g., a third-party service that integrates with Freckle via opt-in or uses Freckle’s APIs) through or with its use of the Service (“Third-Party Services”). IF YOU USE ANY THIRD-PARTY SERVICES, FRECKLE WILL NOT BE RESPONSIBLE FOR ANY ACT OR OMISSION OF ANY PROVIDER OF SUCH THIRD-PARTY SERVICES. FRECKLE DOES NOT WARRANT OR PROVIDE DIRECT SUPPORT FOR ANY THIRD-PARTY SERVICES. YOU ACKNOWLEDGE AND AGREE THAT FRECKLE WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR THE ACTS OR OMISSIONS OF ANY PERMITTED USERS IN CONNECTION WITH ANY THIRD-PARTY SERVICES.
3. OWNERSHIP
3.1. Ownership. You acknowledge that no intellectual property rights are assigned or transferred to you hereunder. You are obtaining only a limited right to access and use the Service. You agree that Freckle or its suppliers own and retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to (a) the Service, Documentation, and any and all related and underlying technology, documentation, and other information and (b) any intellectual property it develops hereunder, and any derivatives thereof (individually and collectively, “Freckle Technology”).
3.2. Feedback. In the event you provide Freckle with any suggestions, ideas, improvements, or other feedback with respect to any aspect of the Service (“Feedback”), you hereby assign all right, title, and interest in and to the Feedback.
4. SUBSCRIPTION TERM, FEES AND PAYMENT
4.1. Subscription Term and Renewals. Unless otherwise terminated as set forth below, this Agreement will have a term of one (1) month or one (1) year (each, an “Initial Term”). Thereafter, this Agreement will automatically renew for successive renewal terms of equal length to the Initial Term (each, a “Renewal Term,” and together with the Initial Term, the “Subscription Term”), unless either party elects to terminate this Agreement at any time. If you elect to terminate this Agreement, you may access the Service until the beginning of the next billing cycle.
4.2. Fees and Payment. All fees shall be paid by you within thirty (30) days of your receipt of Freckle’s invoice. All fees are due and payable in advance at the start of the applicable Subscription Term (and each renewal term). Except as expressly set forth in Section 6 or 8, all fees are non-refundable. You are required to pay any sales, use, value-added withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Freckle. Any late payments shall be subject to a service charge equal to one-and-a-half percent (1.5%) per month of the amount due or the maximum amount allowed by law, whichever is less (plus the costs of collection).
4.3. Suspension of Service. If your account is ten (10) days or more overdue, in addition to any of its other rights or remedies, Freckle reserves the right to suspend your access to the Service without liability to you until such amounts are paid in full.
5. TERM AND TERMINATION
5.1. Term. This Agreement is effective as of the Effective Date and will continue in effect until terminated as set forth below.
5.2. Termination. Either party may terminate this Agreement with at least five (5) days’ prior written notice. In addition, either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice (such notice must contain sufficient detail as to the nature of the breach and state the intent to terminate and email notice is sufficient in the case of non-payment); (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
5.3. Effect of Termination. Upon the expiration or termination of this Agreement, (a) you shall immediately cease any and all use of and access to the Service (including any and all related Freckle Technology) and (b) each party will return to the other party (or destroy) such other party’s Confidential Information. Except as otherwise set forth herein, termination of this Agreement is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
5.4. Your Data. At any time before or within thirty (30) days after termination or expiration of this Agreement, you may download Your Data from the Service. You acknowledge that if you or a Permitted User deletes Your Data from the Service, Your Data may still reside in Freckle’s systems, applications, databases, and servers (including, without limitation, as backups and/or archives). You acknowledge that the foregoing actions during any Subscription Term may have an adverse impact on your use of the Service (and Freckle is not liable with respect thereto).
5.5. Survival. The following Sections shall survive any expiration or termination of this Agreement: 1.5, 2, 3, 4.2, 5, 6.2, 7, 8, 9, 11, and 13.
6. LIMITED WARRANTY; DISCLAIMER
6.1. Limited Warranty. Freckle warrants that it will provide the Service in substantial conformity with the applicable Documentation. Freckle’s sole liability (and your sole and exclusive remedy) for any breach of this warranty shall be, in Freckle’s sole discretion and at no charge to you, to use commercially reasonable efforts to provide you with an error correction or work-around that corrects the reported non-conformity, or if Freckle determines such remedies to be impracticable, to allow you to terminate the Subscription Term and receive as its sole remedy and Freckle’s entire liability, a refund of any fees you have pre-paid for use of the Service or related services it has not received as of the date of the warranty claim. The limited warranty set forth in this Section 6.1 shall not apply: (a) unless you make a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared, (b) if the error was caused by misuse, unauthorized modifications or third-party hardware, software, or services, or (c) to the Service provided on a no-charge or evaluation basis.
6.2. Warranty Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT, FRECKLE PRODUCTS AND ALL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. FRECKLE AND ITS SUPPLIERS EACH EXPRESSLY DISCLAIM ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE.
7. LIMITATION OF LIABILITY
7.1. IN NO EVENT WILL FRECKLE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 4.2 ABOVE.
7.2. IN NO EVENT WILL FRECKLE HAVE ANY LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.3. You are responsible for all login credentials, including usernames and passwords, for administrator accounts, as well the accounts of your Permitted Users. Freckle will not be responsible for any damages, losses or liability to you, Permitted Users, or anyone else, if such information is not kept confidential by you or your Permitted Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Service.
7.4. The limitations under this Section 7 apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this Section 7 allocate the risks under the Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into the Agreement and the pricing for the Service.
7.5. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SUCH AS INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THE AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND YOU AND PERMITTED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS AND LIMITATIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
8. INDEMNIFICATION. You agree to defend, indemnify and hold harmless Freckle and its affiliates, licensors, and suppliers, and Freckle’s and their respective employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) your and any Permitted User’s use of and access to the Service, including any of Your Data or other content transmitted or received by you and any Permitted User; (b) your violation of any term of the Agreement; (c) your or any Permitted User’s violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (d) your or any Permitted User’s violation of any applicable law, rule or regulation; (e) your or any Permitted User’s gross negligence, fraud, or willful misconduct; or (f) any other party’s access and use of the Service with your or any Permitted User’s unique username, password or other appropriate security code (provided that such access and use was not the fault of Freckle).
9. CONFIDENTIAL INFORMATION
9.1. Definition. “Confidential Information” means information disclosed by one party to the other that is marked as confidential or proprietary or that ought reasonably to be understood as confidential or proprietary. All Freckle Technology, performance information relating to the Service, and the terms and conditions of this Agreement (including the fees and pricing information) shall be deemed Confidential Information of Freckle without any marking or further designation. Confidential Information does not include Your Data, nor does it include information that the recipient already lawfully knew, that becomes public through no fault of the recipient, that was independently developed by the recipient without any reference to or use of Confidential Information, or that was rightfully obtained by the recipient from a third party.
9.2. Obligations. The recipient agrees not to disclose Confidential Information except to its Affiliates, employees, contractors, and agents who need to know it and have agreed in writing to keep it confidential. Only those parties may use the Confidential Information, and only to exercise the recipient’s rights and fulfill its obligations under this Agreement, while using at least a reasonable degree of care to protect it. The recipient may also disclose Confidential Information to the extent required by law after providing reasonable notice to the discloser and cooperating to obtain confidential treatment. Unauthorized disclosure of Confidential Information may cause harm not compensable by damages, and the disclosing party may seek injunctive or equitable relief in a court of competent jurisdiction, without posting a bond, to protect its Confidential Information.
10. SECURITYFreckle shall use reasonable physical, technical, and administrative procedures designed to protect, safeguard, and help prevent loss, misuse, and unauthorized access, disclosure, alteration or destruction of Your Data, and Freckle will choose these safeguards based on the sensitivity of the information that is collected, processed, and stored and the current state of applicable technology.
11. PUBLICITYExcept as otherwise agreed in writing (email to suffice), neither party may use the other party’s name, logos, or marks without such party’s written pre-approval in each case. For the avoidance of doubt, you hereby grant Freckle your consent to use your name and logo on Freckle’s web site and in Freckle promotional materials to identify you as an Freckle grantee.
12. DATA PROCESSINGTo the extent that Freckle processes any data which is defined as “personal data,” “personal information,” or “sensitive data” in the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”) or the California Consumer Privacy Act of 2018, as amended (“CCPA”) (“Personal Data”), Freckle shall do so in compliance with Privacy Policy, which is incorporated herein by reference. If the Personal Data that Freckle processes relates to individuals who are data subjects entitled to the rights granted under GDPR, you agree that Freckle does so as a data processor as defined in GDPR. If the Personal Data that Freckle processes relates to individuals who are California residents, and you are subject to CCPA, you agree that Freckle does so as a service provider as defined in CCPA.
13. GENERAL TERMS
13.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement without such consent in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 13.1 will be null and void.
13.2. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, or failure or diminishment of power or telecommunications or data networks or services.
13.3. Subcontractors. Freckle may use the services of subcontractors for performance of services under this Agreement, provided that Freckle remains responsible for such subcontractors’ compliance with the terms of this Agreement.
13.4. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
13.5. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
13.6. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of Delaware and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court in New Castle County), any dispute arising under this Agreement shall be finally settled in binding arbitration. The Judicial Arbitration and Mediation Service, Inc. (“JAMS”) will administer the arbitration in accordance with its Comprehensive Arbitration Rules and Procedures (though to the extent JAMS’ Expedited Arbitration Procedures are available, they will apply), and the arbitration will be held Wilmington, Delaware. Subject to the foregoing provisions of this Section 13.6, the jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in Wilmington, Delaware and both parties hereby submit to the personal jurisdiction of such courts.
13.7. Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth as first listed above or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (a) if given by hand, immediately upon receipt; (b) if given by overnight courier service, the first business day following dispatch or (c) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. In addition, any legal notices to Freckle must be delivered to the following email address: legal@freckle.ioi but, notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in preceding sentence).
13.8. Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. Purchase orders (and similar documents) issued by you are for administrative purposes only (e.g., setting forth products and services ordered and associated fees) and any additional or different terms or conditions contained in any such order shall not apply (even if the order is accepted, or performed on by Freckle).
13.9. No Third-Party Rights. There are no third-party beneficiaries to this Agreement.
13.10. Export Compliance. Each party shall comply with all applicable export and re-export control and trade and economic sanctions laws, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), and the International Traffic in Arms Regulations maintained by the U.S. State Department. Neither party, nor any of its subsidiaries or any person acting on its behalf or owning 50% or more of its equity securities or other equivalent voting interests, is (a) a person on the List of Specially Designated Nationals and Blocked Persons or any other list of sanctioned persons administered by OFAC or any other governmental entity, or (b) a national or resident of, or a segment of the government of, any country or territory for which the United States has embargoed goods or imposed trade sanctions.
13.11. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications, relating to the subject matter of this Agreement.
If the user of the Service is a company, organization, or other entity rather than an individual, then (a) “you” includes you and that entity; (b) “your” has the corresponding meaning; and (c) you represent and warrant that you: (i) are an authorized representative of that entity with the authority to bind such entity to this Agreement, (ii) have read and understand this Agreement, and (iii) agree to this Agreement on behalf of such entity.
By accessing or using the Service, or by clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read, understood, and agree to be bound by this Agreement and to the collection and use of your information as set forth in our Privacy Policy available at https://freckle.io/privacy/ (the “Privacy Policy”), whether or not you are a registered user of the Service. Freckle reserves the right to modify the terms of this Agreement and will provide notice of these changes as described below.
1. FRECKLE PRODUCTS AND SERVICES
1.1. Provision of Products and Services.Subject to the terms and conditions of this Agreement, Freckle will provide you with the online software-as-a-service products and services on a subscription basis for the Subscription Term (defined below), and such other products and services (the “Service”). The Service includes Freckle Software (as defined below).
1.2. Access to Products. You may access and use the Service on a non-exclusive and non-transferrable basis, solely for its internal business purposes, and only in accordance with the terms and conditions of this Agreement and any end user technical documentation provided by Freckle for the Service (“Documentation”). To the extent Freckle provides you with any downloadable software, agents, SDKs, APIs, or other code in connection with the Service (“Freckle Software”), Freckle grants to you a non-exclusive, non-transferable, non-sublicensable, limited right and license to use the Freckle Software during the applicable Subscription Term solely as reasonably necessary for your use of the Service in accordance with this Agreement. For clarity, except for Freckle Software, Freckle’s software products are provided on a remote, software-as-a-service basis only.
1.3. Permitted Users. You may permit your customers, employees, agents, independent contractors, and consultants to use the Service on your behalf (“Permitted Users”), provided you remain responsible for the acts and omissions of each such Permitted User. If you are given passwords to access the Service on Freckle’s systems, you shall require that all Permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. You shall be responsible for any and all actions taken using your accounts and passwords.
1.4. Use by Affiliates. Each of your Affiliates (defined below) will be entitled to access and use the Service in accordance with this Agreement; provided that you shall remain responsible to Freckle for the actions and omissions of each such Affiliate (and each of such Affiliate’s Permitted Users). The terms of this Agreement will govern as if this Agreement were separately executed by the applicable Affiliate of yours, and the term “you” as used in this Agreement will be deemed as applying to such Affiliate of yours for the purposes of this Agreement. “Affiliate” means an entity that, directly or indirectly, controls, is controlled by, or is under common control with a party. As used herein, “control” means the power to direct the management or affairs of an entity or the beneficial ownership of fifty percent (50%) or more of the voting equity securities or other equivalent voting interests of an entity.
1.5. General Restrictions. You shall not, and shall not allow any third party (including any Permitted User) to: (a) sell, rent, lease or use the Service for time sharing purposes; (b) use the Service to help develop, or help provide to any third party, any product or service similar to or competitive with the Service; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code of the Service; (d) copy, modify or create derivative works from the Service or any Documentation; (e) remove or obscure any copyright or proprietary or other notice contained in the Service or Documentation; (f) propagate any virus, Trojan horse, or other malware or programming routine intended to damage any system or data; (g) access or use the Service in a manner intended to circumvent or exceed service account limitations or requirements; (h) use any Service in a manner that violates any applicable law, regulation, or legal requirement or obligation; (i) use any Service in violation of any third-party rights of privacy or intellectual property rights; (j) use or permit the use of any tools in order to probe, scan or attempt to penetrate or benchmark any Service; (k) post, upload, transmit or provide any Your Data that Freckle reasonably deems to be unlawful, harmful, abusive or otherwise objectionable; or (l) use the Service except as expressly permitted by this Agreement.
2. YOUR OBLIGATIONS; YOUR DATA
2.1. Generally. “Your Data” means information, data, and other content, in any form or medium, that is downloaded, or otherwise received, directly or indirectly (including via a third-party provider), from you (including from a Permitted User on your behalf) by or through the Service, or provided by you to Freckle to input into the Service. You represent and warrant to Freckle that your use of the Service and all Your Data is and will be at all times compliant with all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data (including personal data). You are solely responsible for (i) the accuracy, content, and legality of all Your Data, and (ii) for providing notices and obtaining consents as legally required from your Permitted Users and your customers and end users (as applicable) for the collection, use, processing, and transfer of your Data in connection with the Service. You represent and warrant to Freckle that you have sufficient rights in Your Data to grant the rights granted to Freckle in Section 2.2 below and that Your Data does not infringe or otherwise violate the rights of any third party. Unless otherwise agreed to in writing, you are prohibited from downloading, or otherwise receiving, directly or indirectly (including via a third-party provider), from you (including from a Permitted User on your behalf) by or through the Service, or provided by you to Freckle to input into the Service, Your Data that includes any sensitive information, including but not limited to, a social security number, passport number, driver’s license number, or similar identifier, credit card or debit card number, or any other information which may be subject to specific data privacy and security laws including the Gramm-Leach-Bliley Act (GLBA), the Health Insurance Portability and Accountability Act (HIPAA), the Health Information Technology for Economic and Clinical Health Act (HiTECH), the Family Educational Rights and Privacy Act of 1974 (FERPA), the Children’s Online Privacy Protection Act (COPPA), or the GDPR or any other data which is considered to be sensitive, including consumer health data or precise geolocation, or which could give rise to notification obligations under data breach notification laws. We do not make any representations as to the adequacy of the Service to process Your Data or to satisfy any legal or compliance requirements which may apply to Your Data, other than as described herein.
2.2. Rights in Your Data. As between the parties, you shall retain all right, title and interest (including any and all intellectual property rights) in and to Your Data. You hereby grant to Freckle a non-exclusive, worldwide, irrevocable, transferable, sublicensable (through multiple tiers), fully paid-up, royalty-free right and license to use, copy store, transmit, modify, and display Your Data in order to: (a) provide the Service to you; and (b) perform such other actions as authorized or instructed by you in writing (email to suffice).
2.3. De-identified Data. Freckle may create and use de-identified data related to your use of the Service in order to improve Freckle’ products and services, to develop new products and services, and for its other business purposes (and such de-identified data will be owned by Freckle).
2.4. Third Party Application Service Providers. You may be able to access and use certain optional third-party services or products (e.g., a third-party service that integrates with Freckle via opt-in or uses Freckle’s APIs) through or with its use of the Service (“Third-Party Services”). IF YOU USE ANY THIRD-PARTY SERVICES, FRECKLE WILL NOT BE RESPONSIBLE FOR ANY ACT OR OMISSION OF ANY PROVIDER OF SUCH THIRD-PARTY SERVICES. FRECKLE DOES NOT WARRANT OR PROVIDE DIRECT SUPPORT FOR ANY THIRD-PARTY SERVICES. YOU ACKNOWLEDGE AND AGREE THAT FRECKLE WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR THE ACTS OR OMISSIONS OF ANY PERMITTED USERS IN CONNECTION WITH ANY THIRD-PARTY SERVICES.
3. OWNERSHIP
3.1. Ownership. You acknowledge that no intellectual property rights are assigned or transferred to you hereunder. You are obtaining only a limited right to access and use the Service. You agree that Freckle or its suppliers own and retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to (a) the Service, Documentation, and any and all related and underlying technology, documentation, and other information and (b) any intellectual property it develops hereunder, and any derivatives thereof (individually and collectively, “Freckle Technology”).
3.2. Feedback. In the event you provide Freckle with any suggestions, ideas, improvements, or other feedback with respect to any aspect of the Service (“Feedback”), you hereby assign all right, title, and interest in and to the Feedback.
4. SUBSCRIPTION TERM, FEES AND PAYMENT
4.1. Subscription Term and Renewals. Unless otherwise terminated as set forth below, this Agreement will have a term of one (1) month or one (1) year (each, an “Initial Term”). Thereafter, this Agreement will automatically renew for successive renewal terms of equal length to the Initial Term (each, a “Renewal Term,” and together with the Initial Term, the “Subscription Term”), unless either party elects to terminate this Agreement at any time. If you elect to terminate this Agreement, you may access the Service until the beginning of the next billing cycle.
4.2. Fees and Payment. All fees shall be paid by you within thirty (30) days of your receipt of Freckle’s invoice. All fees are due and payable in advance at the start of the applicable Subscription Term (and each renewal term). Except as expressly set forth in Section 6 or 8, all fees are non-refundable. You are required to pay any sales, use, value-added withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Freckle. Any late payments shall be subject to a service charge equal to one-and-a-half percent (1.5%) per month of the amount due or the maximum amount allowed by law, whichever is less (plus the costs of collection).
4.3. Suspension of Service. If your account is ten (10) days or more overdue, in addition to any of its other rights or remedies, Freckle reserves the right to suspend your access to the Service without liability to you until such amounts are paid in full.
5. TERM AND TERMINATION
5.1. Term. This Agreement is effective as of the Effective Date and will continue in effect until terminated as set forth below.
5.2. Termination. Either party may terminate this Agreement with at least five (5) days’ prior written notice. In addition, either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice (such notice must contain sufficient detail as to the nature of the breach and state the intent to terminate and email notice is sufficient in the case of non-payment); (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
5.3. Effect of Termination. Upon the expiration or termination of this Agreement, (a) you shall immediately cease any and all use of and access to the Service (including any and all related Freckle Technology) and (b) each party will return to the other party (or destroy) such other party’s Confidential Information. Except as otherwise set forth herein, termination of this Agreement is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
5.4. Your Data. At any time before or within thirty (30) days after termination or expiration of this Agreement, you may download Your Data from the Service. You acknowledge that if you or a Permitted User deletes Your Data from the Service, Your Data may still reside in Freckle’s systems, applications, databases, and servers (including, without limitation, as backups and/or archives). You acknowledge that the foregoing actions during any Subscription Term may have an adverse impact on your use of the Service (and Freckle is not liable with respect thereto).
5.5. Survival. The following Sections shall survive any expiration or termination of this Agreement: 1.5, 2, 3, 4.2, 5, 6.2, 7, 8, 9, 11, and 13.
6. LIMITED WARRANTY; DISCLAIMER
6.1. Limited Warranty. Freckle warrants that it will provide the Service in substantial conformity with the applicable Documentation. Freckle’s sole liability (and your sole and exclusive remedy) for any breach of this warranty shall be, in Freckle’s sole discretion and at no charge to you, to use commercially reasonable efforts to provide you with an error correction or work-around that corrects the reported non-conformity, or if Freckle determines such remedies to be impracticable, to allow you to terminate the Subscription Term and receive as its sole remedy and Freckle’s entire liability, a refund of any fees you have pre-paid for use of the Service or related services it has not received as of the date of the warranty claim. The limited warranty set forth in this Section 6.1 shall not apply: (a) unless you make a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared, (b) if the error was caused by misuse, unauthorized modifications or third-party hardware, software, or services, or (c) to the Service provided on a no-charge or evaluation basis.
6.2. Warranty Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT, FRECKLE PRODUCTS AND ALL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. FRECKLE AND ITS SUPPLIERS EACH EXPRESSLY DISCLAIM ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE.
7. LIMITATION OF LIABILITY
7.1. IN NO EVENT WILL FRECKLE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 4.2 ABOVE.
7.2. IN NO EVENT WILL FRECKLE HAVE ANY LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.3. You are responsible for all login credentials, including usernames and passwords, for administrator accounts, as well the accounts of your Permitted Users. Freckle will not be responsible for any damages, losses or liability to you, Permitted Users, or anyone else, if such information is not kept confidential by you or your Permitted Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Service.
7.4. The limitations under this Section 7 apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this Section 7 allocate the risks under the Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into the Agreement and the pricing for the Service.
7.5. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SUCH AS INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THE AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND YOU AND PERMITTED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS AND LIMITATIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
8. INDEMNIFICATION. You agree to defend, indemnify and hold harmless Freckle and its affiliates, licensors, and suppliers, and Freckle’s and their respective employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) your and any Permitted User’s use of and access to the Service, including any of Your Data or other content transmitted or received by you and any Permitted User; (b) your violation of any term of the Agreement; (c) your or any Permitted User’s violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (d) your or any Permitted User’s violation of any applicable law, rule or regulation; (e) your or any Permitted User’s gross negligence, fraud, or willful misconduct; or (f) any other party’s access and use of the Service with your or any Permitted User’s unique username, password or other appropriate security code (provided that such access and use was not the fault of Freckle).
9. CONFIDENTIAL INFORMATION
9.1. Definition. “Confidential Information” means information disclosed by one party to the other that is marked as confidential or proprietary or that ought reasonably to be understood as confidential or proprietary. All Freckle Technology, performance information relating to the Service, and the terms and conditions of this Agreement (including the fees and pricing information) shall be deemed Confidential Information of Freckle without any marking or further designation. Confidential Information does not include Your Data, nor does it include information that the recipient already lawfully knew, that becomes public through no fault of the recipient, that was independently developed by the recipient without any reference to or use of Confidential Information, or that was rightfully obtained by the recipient from a third party.
9.2. Obligations. The recipient agrees not to disclose Confidential Information except to its Affiliates, employees, contractors, and agents who need to know it and have agreed in writing to keep it confidential. Only those parties may use the Confidential Information, and only to exercise the recipient’s rights and fulfill its obligations under this Agreement, while using at least a reasonable degree of care to protect it. The recipient may also disclose Confidential Information to the extent required by law after providing reasonable notice to the discloser and cooperating to obtain confidential treatment. Unauthorized disclosure of Confidential Information may cause harm not compensable by damages, and the disclosing party may seek injunctive or equitable relief in a court of competent jurisdiction, without posting a bond, to protect its Confidential Information.
10. SECURITYFreckle shall use reasonable physical, technical, and administrative procedures designed to protect, safeguard, and help prevent loss, misuse, and unauthorized access, disclosure, alteration or destruction of Your Data, and Freckle will choose these safeguards based on the sensitivity of the information that is collected, processed, and stored and the current state of applicable technology.
11. PUBLICITYExcept as otherwise agreed in writing (email to suffice), neither party may use the other party’s name, logos, or marks without such party’s written pre-approval in each case. For the avoidance of doubt, you hereby grant Freckle your consent to use your name and logo on Freckle’s web site and in Freckle promotional materials to identify you as an Freckle grantee.
12. DATA PROCESSINGTo the extent that Freckle processes any data which is defined as “personal data,” “personal information,” or “sensitive data” in the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”) or the California Consumer Privacy Act of 2018, as amended (“CCPA”) (“Personal Data”), Freckle shall do so in compliance with Privacy Policy, which is incorporated herein by reference. If the Personal Data that Freckle processes relates to individuals who are data subjects entitled to the rights granted under GDPR, you agree that Freckle does so as a data processor as defined in GDPR. If the Personal Data that Freckle processes relates to individuals who are California residents, and you are subject to CCPA, you agree that Freckle does so as a service provider as defined in CCPA.
13. GENERAL TERMS
13.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement without such consent in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 13.1 will be null and void.
13.2. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, or failure or diminishment of power or telecommunications or data networks or services.
13.3. Subcontractors. Freckle may use the services of subcontractors for performance of services under this Agreement, provided that Freckle remains responsible for such subcontractors’ compliance with the terms of this Agreement.
13.4. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
13.5. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
13.6. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of Delaware and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court in New Castle County), any dispute arising under this Agreement shall be finally settled in binding arbitration. The Judicial Arbitration and Mediation Service, Inc. (“JAMS”) will administer the arbitration in accordance with its Comprehensive Arbitration Rules and Procedures (though to the extent JAMS’ Expedited Arbitration Procedures are available, they will apply), and the arbitration will be held Wilmington, Delaware. Subject to the foregoing provisions of this Section 13.6, the jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in Wilmington, Delaware and both parties hereby submit to the personal jurisdiction of such courts.
13.7. Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth as first listed above or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (a) if given by hand, immediately upon receipt; (b) if given by overnight courier service, the first business day following dispatch or (c) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. In addition, any legal notices to Freckle must be delivered to the following email address: legal@freckle.ioi but, notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in preceding sentence).
13.8. Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. Purchase orders (and similar documents) issued by you are for administrative purposes only (e.g., setting forth products and services ordered and associated fees) and any additional or different terms or conditions contained in any such order shall not apply (even if the order is accepted, or performed on by Freckle).
13.9. No Third-Party Rights. There are no third-party beneficiaries to this Agreement.
13.10. Export Compliance. Each party shall comply with all applicable export and re-export control and trade and economic sanctions laws, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), and the International Traffic in Arms Regulations maintained by the U.S. State Department. Neither party, nor any of its subsidiaries or any person acting on its behalf or owning 50% or more of its equity securities or other equivalent voting interests, is (a) a person on the List of Specially Designated Nationals and Blocked Persons or any other list of sanctioned persons administered by OFAC or any other governmental entity, or (b) a national or resident of, or a segment of the government of, any country or territory for which the United States has embargoed goods or imposed trade sanctions.
13.11. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications, relating to the subject matter of this Agreement.