Terms of Service
These Terms of Service are incorporated into the Service Agreement entered between you, as the Customer, and Data Prosper, LLC, as the Provider.
“Authorized Users” means the Customer’s employees, contractors, and other agents (i) for whom Customer has purchased access to the Services under the rights granted to Customer by the Service Agreement and (ii) whom Customer authorizes to use the Services on its behalf.
“Customer Data” means potential customer information (leads) and other information transmitted to the Services by the Customer or collected by the Services on Customer’s behalf.
“Documentation” means Provider’s user manuals, instructions, and other operating information relating to the Service that Provider shares with Customer.
“Provider IP” means all copyrights, patents, trade secrets, and other intellectual property rights in the Services, Documentation, and any other material shared with Customer or any Authorized User in the course of providing the Services. Provider IP includes Usage Data but not Customer Data.
“Services” means the software-as-a-service offerings described in the Service Agreement.
“Usage Data” means information regarding the Customer’s use of the Service that collected by the Provider for the purpose of providing the Services to the Customer or improving the Services. Usage data does not include any Customer Data.
“Third-Party Products” means any third-party products described in Schedule A provided with or incorporated into the Services.
- Provision of Service
- Subject to Customer’s payment of Fees, Provider grants Customer a non-exclusive, non-transferable, and revocable right to access and use the Services during the Active Term. Provider shall supply Customer with the necessary credentials to allow Authorized Users to access the Services.
- Provider grants to Customer a non-exclusive, non-transferable license to use the Documentation during the Active Term solely for Customer’s internal business purposes in connection with its use of the Services.
- Customer shall not use the Services beyond the scope of access granted by the Service Agreement or for other than their intended use. Customer shall not: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
- Service Suspension. Provider may temporarily suspend Customer’s or any Authorized User’s access to the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer’s or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer or any Authorized User is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with other provisions of the Service Agreement. Provider shall use commercially reasonable efforts to provide written notice of any service suspension to Customer and to provide updates regarding resumption of access to the Services following any service suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the service suspension is cured. Provider will have no liability for any damage, loss (including any loss of data or profits), or other consequence that Customer or any Authorized User may incur as a result of a service suspension.
- Usage Data. Customer acknowledges that Provider may monitor Customer’s use of the Services and collect and compile Usage Data.
- Customer Responsibilities
- Customer is responsible for all use of the Services and Documentation resulting from access allowed or enabled by Customer, whether permitted by or in violation of the Service Agreement. Customer is responsible for all acts and omissions of Authorized Users. Any act or omission by an Authorized User that would constitute a breach of the Service Agreement if taken by Customer will be deemed a breach of the Service Agreement by Customer. Customer shall use reasonable efforts to assure that all Authorized Users comply with all terms of the Service Agreement.
- Third-Party Products. Provider may from time to time make Third-Party Products available to Customer. For purposes of the Service Agreement, such Third-Party Products are subject to their own terms and conditions. Customer shall not access or use such Third-Party Products unless it agrees to abide by the applicable terms and conditions.
- Service and Support
- Service Levels. Provider shall use commercially reasonable efforts to make the Services available in accordance with the service levels set forth in the Schedule A.
- Provider shall maintain the security measures set forth in Schedule A. Provider does not guarantee that these measures will prevent unauthorized access to or disclosure of Customer Data and shall not be liable if such access or disclosure occurs.
- The Customer to the support services described on Schedule A for the Active Term of the Service Agreement.
- Fees and Payment
- Customer shall pay Provider the fees by the due dates set forth in Service Agreement without offset or deduction. If Customer fails to make any payment when due: (i) Provider may charge interest on the past due amount at the annual rate of 10% calculated daily; (ii) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments and interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 30 days or more, Provider may suspend Customer’s and its Authorized Users’ access to the Services until such amounts are paid in full.
- All amounts payable by Customer under the Service Agreement are exclusive of taxes and similar assessments. Customer is 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 or regulatory authority on any amounts payable by Customer under the Service Agreement, other than any taxes imposed on Provider’s income.
- Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of the Service Agreement with respect to matters necessary for accurately determining amounts due hereunder. Provider may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid Provider with respect to any amounts due and payable during the Active Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest. Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds 20% for any quarter. Such inspection and auditing rights will extend throughout the Active Term of the Service Agreement and for a period of two years after the termination or expiration of the Service Agreement.
- Intellectual Property Ownership
- Provider IP. Provider owns all Provider IP.
- Reservation of Rights. Provider reserves all rights not expressly granted to Customer by the Service Agreement.
- Customer Data. Customer owns all Customer Data. Apart from the fully automated handling of Customer Data by the Services, Provider has no access to Customer Data.
- If Customer or any of its employees, contractors, or other agents suggests or recommends changes to the Provider IP, new features or functionality, or submits any comments (“Feedback”), Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever. Customer hereby assigns to Provider on Customer’s behalf, and on behalf of its employees, contractors, and other agents, all right, title, and interest in such Feedback.
- Limited Warranty. Provider warrants that the Services will conform in all material respects to the service levels set forth in Schedule A when accessed and used in accordance with the Documentation. Provider does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in Schedule A. The remedies set forth in Schedule A are Customer’s sole remedies and Provider’s sole liability under this limited warranty. PROVIDER DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
- Except for the limited warranty set forth above, the Services are provided “as is.” Provider makes no warranty of any kind that the Services will meet customer’s or any other person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system or other services, or be secure, accurate, complete, free of harmful code, or error free. PROVIDER DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, AND ALL OTHER WARRANTIES OTHERWISE IMPLIED BY LAW.
- By Provider.
- Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights/US patents, copyrights, or trade secrets, provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
- If such a claim is made or appears possible, Customer agrees to permit Provider, at Provider’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
- This Provider Indemnification will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; (C) Customer Data; or (D) Third-Party Products.
- By Customer. Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
- Sole Remedy. THIS SECTION 7 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
- By Provider.
- Limitation of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THE SERVICE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE ONE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Term and Termination.
- Active Term. The term of the Service Agreement begins on the Effective Date and continues until Customer ceases to use the Services or the Service Agreement is terminated by either Party (“Active Term”).
- Either Party may terminate this Agreement for any reason on 30 days written notice. Provider may terminate this Agreement, effective on written notice to Customer, if Customer fails to pay any amount when due under the Agreement or breaches any other obligations under the Agreement.
- Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately: (i) discontinue use of the Provider IP; (ii) delete, destroy, or return all copies of the Provider IP; and (iii) certify in writing to the Provider that it has done so. The expiration or termination of the Agreement will not relieve Customer’s obligation to pay all Fees that may have become due or entitle Customer to any refund.
- Entire Agreement. The Service Agreement, together with these Terms, all referenced Schedules, and any other documents incorporated by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter addressed and supersedes all prior and contemporaneous understandings, agreements, and representations.
- All notices under the Service Agreement shall be in writing and may be me made electronically. All notices to Provider shall be addressed to [email protected]_._. Notices to Customer shall be made to the e-mail address set forth in the Service Agreement.
- Force Majeure. In no event shall Provider be liable to Customer, or be deemed to have breached the Service Agreement, for any failure or delay in performing its obligations, if and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
- Modification of Terms. Provider may amend these Terms at any time on fourteen days’ notice. Customer’s continued use of the Services constitutes consent to any amendments.
- If any provision of the Service Agreement or these Terms is invalid, illegal, or unenforceable in any jurisdiction, it shall not affect any other provision or render the provision invalid, illegal, or unenforceable in any other jurisdiction. Upon a determination that any provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify the Service Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated by the Service Agreement be consummated as originally contemplated to the greatest extent possible.
- Governing Law and Jurisdiction. The Service Agreement and these Terms are governed by California law without regard to rules on the choice of law. Any action arising out of the Service Agreement shall be instituted in the Superior Court of California, County of Los Angeles, or the U.S. District Court for the Central District of California. Each Party submits to the jurisdiction of such courts in any such action.
- Customer may not assign any of its rights or delegate any of its obligations under the Service Agreement, whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. The Service Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
- Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.