Terms of Service
1. ATTENTION! THE FOLLOWING TERMS AND CONDITIONS (“TERMS”) WILL BE LEGALLY BINDING ON YOU ("CUSTOMER”) UPON REGISTERING FOR A FREE TRIAL AND/OR A FEE BASED COMMERCIAL SERVICE ARRANGEMENT WITH SPRINGBOARD RETAIL, INC (“SPRINGBOARD”). CUSTOMER SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE BEFORE SIGNING UP. IF YOU DO NOT AGREE WITH THESE TERMS DO NOT USE THE SERVICE.
2. Terms of Service. Customer acknowledges and agrees to the these Terms, which together with the terms of the Springboard Subscription Order (“Order”) and any other terms incorporated by reference into these Terms, constitute the “Agreement” entered into between Customer and Springboard Retail, will govern Customer’s access to and use of the Service. Capitalized terms not otherwise defined herein shall have the meaning given to them in Section 11 below. In addition, Customer agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new service(s) subsequently procured by the Customer will be subject to this Agreement.
2.1. Customer Must Have Internet Access. Digital Subscriber Line (DSL), cable or another high speed Internet connection is required for proper transmission of the Service. Customer is responsible for procuring and maintaining the network connections that connect the Customer network to the Service, including, but not limited to, "browser" software that supports protocol used by Springboard, including Secure Socket Layer (SSL) protocol or other protocols accepted by Springboard, and to follow logon procedures for services that support such protocols. Springboard is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such software, or for any compromise of data transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned or operated by Springboard. Springboard assumes no responsibility for the reliability or performance of any connections as described in this Section.
2.2. Accuracy of Customer’s Contact Information. Customer will provide accurate, current and complete information on Customer’s legal business name, address, credit card number, email address, and phone number, and maintain and promptly update this information if it should change.
2.3. Users: Passwords, Access, And Notification. Subject to payment of all applicable fees and charges, Customer is authorized to use the Service solely for its internal business operations. Customer will authorize access to the Service and assign unique passwords and user names for each of its Users. User logins are for designated Users and should not be shared or used by more than one User, but any User login may be reassigned to another User as needed. Customer will be responsible for the confidentiality and use of User’s passwords and user names. Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Customer’s account. Springboard will act as though any Electronic Communications it receives under Customer’s passwords, user name, and/or account number will have been sent by Customer. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of the Service and shall promptly notify Springboard Retail of any unauthorized access to or use of the Service and will promptly notify Springboard of any unauthorized use of any User’s name and/or Service account numbers.
2.4. Customer’s Lawful Conduct. The Service allows Customer to send Electronic Communications directly to Springboard and to third parties. Customer will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to privacy, electronic communications and anti-spam legislation. Customer is responsible for ensuring that its use of the Service to store or process credit card data complies with applicable Payment Card Industry Data Security Standards (“PCI DSS”) requirements and will store credit card and social security data only in the designated fields for such data. Customer will comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Service and obtain any permits, licenses and authorizations required for such compliance. Without limiting the foregoing, (i) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Customer will not permit Users to access or use the Service in violation of any U.S. export embargo, prohibitions or restrictions, and (iii) Customer will comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located. Customer will not send any Electronic Communication from the Service that is unlawful, or, to its knowledge, harassing, libelous, defamatory or threatening. Except as permitted by this Agreement, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the Service by any means other than through the interfaces that are provided by Springboard. Customer will not do any "mirroring" or "framing" of any part of the Service, or create Internet links to the Service which include log-in information, user names, passwords, and/or secure cookies. Customer will not in any way express or imply that any opinions contained in Customer’s Electronic Communications are endorsed by Springboard. Customer will ensure that all access and use of the Service by Users is in accordance with the terms and conditions of this Agreement, including but not limited to those Users that are contractors and agents, and Customer’s Affiliates. Any action or breach by any of such contractors, agents or Affiliates will be deemed an action or breach by Customer and Customer waives all of those defenses that Customer may have as to why Customer should not be liable for Customer’s contractors’, agents’ or Affiliates' acts, omissions and noncompliance with this Agreement.
2.5. Third Party Applications. Customer may on its own purchase, subscribe or otherwise obtain a Third Party Application for its use independently, in conjunction with, or to interoperate with the Service. Springboard may also offer certain Third Party Applications for sale or subscription as a convenience for a customer which may be through a separate additional order form. Any procurement of such Third Party Applications by Customer will be subject to the terms and conditions specified in such order form, if any.
For the absence of doubt, Third Party Applications are outside and not part of the Service and Springboard does not warrant any such Third Party Application, regardless of whether or not such Third Party Applications is provided by Springboard, or a third party that is a member of Springboard’s partner program or otherwise designated by Springboard Retail as "certified," "approved" or “recommended.” Any procurement by Customer of any Third Party Applications or services is solely between Customer and the applicable third party provider. Should a Third Party Application be procured by Customer from Springboard, to the extent permitted by such Third Party Application, its warranty may be passed through for the benefit of the Customer.
Springboard is not responsible for any other aspect of such Third Party Applications or services that Customer may procure or connect to through the Service, or any descriptions, promises or other information related to the foregoing. If Customer installs or enables Third Party Applications for use with the Service, Customer agrees that Springboard may allow such third party providers to access Customer Data as required for the interoperation of such Third Party Applications with the Service, and any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider. Springboard will not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Third Party Applications or third party providers. No procurement of such Third Party Application is required to use the Service. Usage charges may apply if Third Party Applications are deployed by Customer for use with the Service or otherwise if Customer usage as defined by API calls exceeds thresholds set by Springboard.
2.6. Transmission of Data. Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to use of the Service. Customer expressly consents to Springboard’s access to and use and storage of Electronic Communications and/or Customer Data, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Springboard. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Springboard is not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by Springboard, including, but not limited to, the Internet and Customer’s local network.
2.7. Service Level. During the Term, the Service offerings will meet the service level specified in the “Service Level Commitment” listed in Section 9 of this document. If the applicable Service fails to achieve the defined service level, then Customer will be entitled, as its sole and exclusive remedy, to a credit for the applicable Service in accordance with the terms set forth in the Service Level Commitment. The respective Service’s system logs and other records shall be used for calculating any service level events.
2.8. Springboard Support. As part of the Service, Springboard will provide Customer with the Springboard Retail Knowledge Base and other online resources to assist Customer in its use of the Service. Springboard also offers optional and “for fee” training classes, professional services consultation and support services. Customer acknowledges that Springboard has extensive experience helping Customers improve utilization and realization of benefits of the Service, and that not following the advice of Springboard and/or not engaging Springboard or other Springboard authorized implementation or development partners in the provision of training or professional services may substantially limit Customer’s ability to successfully utilize the Service or to enjoy the power and potential of the Service.
2.9. Security. Springboard does not store or process credit card data. If at a future time Springboard does store or process credit card data Springboard will maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data.
2.10. Confidentiality. For purposes of this Agreement, “Confidential Information” will include Customer Data, each party’s proprietary technology, business processes and technical product information, designs, issues, all communication between the Parties regarding the Service and any information that is clearly identified in writing at the time of disclosure as confidential. Notwithstanding the foregoing, Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the Receiving Party; (4) the Receiving Party becomes aware of from a third party not bound by non-disclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party; or (5) is aggregate data regarding use of Springboard’s products and services that does not contain any personally identifiable or Customer-specific information.
Each party agrees: (a) to keep confidential all Confidential Information; (b) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by Customer; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information, including but not limited to inputting credit card data and social security numbers only in the fields designated for such data in the Service) and to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is permitted by law or order of a court or other governmental authority or regulation.
2.11. Billing and Charges for Service. Customer will be billed as defined in an Order, or if not stated therein monthly in advance for the Service based on the prior month’s usage. Any fee adjustment based on actual usage during the month will be made through charge or refund at the start of the following month.
2.12. Ownership of Customer Data. As between Springboard Retail and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer. Customer acknowledges and agrees that in connection with Service, Springboard as part of its standard Service offering makes daily backup copies of the Customer Data in Customer’s account and stores and maintains such data for a period of time consistent with Springboard standard business processes, which period shall not be less than one year.
Springboard will not use personally-identifiable confidential data without prior Customer consent. Customer grants Springboard a non-exclusive unrestricted worldwide license to use aggregate de-identified Customer data and statistics for internal analysis, external marketing purposes, and other business purposes.
2.13. Springboard Retail Intellectual Property Rights. Customer agrees that all rights, title and interest in and to all intellectual property rights in the Service are owned exclusively by Springboard Retail or its licensors. Except as provided in this Agreement, the authorization of Customer to use the Service does not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. In addition, Springboard Retail shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including users, relating to the operation of the Service. Any rights not expressly granted herein are reserved by Springboard. Springboard service marks, logos and product and service names are marks of Springboard, respectively (the "Springboard Marks"). Customer agrees not to display or use the Springboard Marks in any manner without Springboard’s express prior written permission. The trademarks, logos and service marks of Third Party Application providers ("Marks") are the property of such third parties. Customer is not permitted to use these Marks without the prior written consent of such third party which may own the Mark.
2.14 Primary Contact, Service Notices and Cancellation of Service. Customer will designate its Primary Contact (“Representative”) on the Order, which it may update from time to time by written notice to Springboard. The Representative will be the Customer’s recipient of all notices, updates, and advisories related to the Service and its support and will have the authority to act and respond to Springboard on behalf of the Customer on day to day operational and other matters involving the Service. Customer may cancel the service at any time by providing thirty (30) days written notice to Springboard by email to firstname.lastname@example.org. Notice must come from the Customer’s Representative. Customer will be responsible for all charges up to and including the last day of the contract period in which cancellation notice was received by Springboard.
2.15. Cancellation of Service. Customer may cancel the service by providing written notice by email to email@example.com at least 30 days prior to Customer subscription contract renewal date. Notice must come from the Customer by the party so authorized (account owner). Customer will be responsible for all charges up to and including the last day of the contract period in which cancellation notice was received by Springboard Retail.
2.16. Dispute Resolution. Each party agrees that before it or any employee, agent or representative of the party files a claim or suit with a federal or state agency or court or other public forum, it will provide thirty (30) days prior written notice to the other and that, within such thirty (30) day period (or longer, if extended by mutual desire of the parties), authorized representatives of the parties will meet (or confer by telephone) at least once in a good faith attempt to resolve the dispute.
2.17. Customer Reference. Customer agrees that Springboard can use its name and logo in connection with marketing and promoting the Service, including on its website and other marketing materials. If requested by Springboard, Customer will provide Springboard with a quote noting the advantages of deploying the Service within its stores. Customer will allow Springboard to publish a case study with Springboard and will provide attributed quotes, and act as a customer reference for Springboard. Customer will also, as reasonably requested by Springboard and to the best of its ability, help promote the Springboard solution to other retailers.
2.18. Access to APIs. The Service may include access to application programming interfaces (“APIs”). Customer acknowledges and agrees that Springboard may, in its sole discretion, limit, throttle, suspend or terminate your access to or usage of APIs, or change any of the API specifications, protocols, or methods of access for any or no reason, and Springboard will bear no liability for such decisions. It is solely your responsibility at all times to backup your data and to be prepared to manage your accounts and conduct your business without access to the APIs.
SPRINGBOARD DOES NOT REPRESENT OR WARRANT, AND SPECIFICALLY DISCLAIMS, THAT ANY APIs WILL BE AVAILABLE WITHOUT INTERRUPTION OR WITHOUT BUGS.3. Warranties
3.1. Warranty of Functionality. Springboard warrants that (i) the Service will achieve in all material respects the functionality described in the Help Documentation applicable to the Service procured by Customer, and (ii) such functionality of the Service will not be materially decreased during the Term. Customer’s sole and exclusive remedy for Springboard’s breach of this warranty will be that Springboard will be required to use commercially reasonable efforts to modify the Service to achieve in all material respects the functionality described in the Help Documentation and if Springboard is unable to restore such functionality, Customer will be entitled to terminate the Agreement and receive a prorata refund of the unused subscription fees paid under the Agreement for its use of the Service for the remainder of the Service subscription term. Springboard will have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem, and such notice must be sent to firstname.lastname@example.org. The warranties set forth in this Section 3.1 are made to and for the benefit of Customer only. Such warranties will only apply if the applicable Service has been utilized in accordance with the Help Documentation, this Agreement and applicable law.
4. Disclaimer of Warranties. EXCEPT AS STATED IN SECTION 3 ABOVE, SPRINGBOARD DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 3 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY SPRINGBOARD. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS STATED IN SECTIONS 2.7, 3.1, and 3.2 ABOVE, THE SERVICE IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
5. Limitations of Liability. IN NO EVENT WILL SPRINGBOARD BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN NO WILL SPRINGBOARD’S AGGREGATE DAMAGES EXCEED THE DIRECT DAMAGE LIMITATIONS SET FORTH BELOW.
Springboard’s maximum liability of arising out of or in connection with these Terms or Customer’s use of the Service, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, negligence, tort, statutory duty, or otherwise, will in no case exceed the equivalent of 12 months in subscription fees applicable at the time of the event. Notwithstanding the previous sentence, Springboard will not be liable to Customer to the extent such liability would not have occurred but for Customer’s (or its Users’) failure to comply with the terms. of this Agreement The essential purpose of this provision is to limit the potential liability of Springboard. Customer acknowledges that the limitations set forth in this Section are integral to the amount of fees charged in connection with making the Service available to Customer and that, were Springboard to assume any further liability other than as set forth herein, such fees would of necessity be substantially higher.
THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL NOT APPLY TO SPRINGBOARD’S INDEMNITY OBLIGATIONS SET FORTH IN SECTION 6 BELOW. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer.
5.1 Third Party Application Warranty. All third party hardware and other products or services included or sold with the Services are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, you should contact the manufacturer directly. SPRINGBOARD MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL SPRINGBOARD BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR COVER DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THIRD PARTY PRODUCTS OR ANY AMOUNT IN EXCESS OF THE AMOUNT PAID BY YOU FOR THE PRODUCT THAT GIVES RISE TO ANY CLAIM.6. Indemnification.
6.1. Infringement. Springboard will, at its own expense and subject to the limitations set forth in this Section 6, defend Customer from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties alleging that the Service, as used in accordance with this Agreement, infringes third party copyrights, trade secrets or trademarks (collectively “Claims”) and will hold Customer harmless from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such a Claim.
Excluded from the above indemnification obligations are Claims to the extent arising from (a) use of the Service in violation of this Agreement or applicable law, (b) use of the Service after Springboard notifies Customer to discontinue use because of an infringement claim, (c) modifications to the Service not made by Springboard, or (d) use of the Service in combination with any software, application or service made or provided other than by Springboard.
If a Claim is brought or threatened, Springboard will, at its sole option and expense, use commercially reasonable efforts either (a) to procure a license that will protect Customer against such Claim without cost to Customer; (b) to modify or replace all or portions of the Service as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement and refund to the Customer a pro-rata refund of the unused subscription fees paid for under the Agreement for the terminated portion of the Service subscription term. The rights and remedies granted Customer under this Section 6.1 state Springboard’s entire liability, and Customer's exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party.
6.2. Disclosure of Customer Data. Springboard will, at its own expense and subject to the limitations set forth in this Section 6, defend Customer from and against any Claims that arise out of or result directly from Springboard’s gross negligence or willful misconduct in preventing unauthorized access to confidential Customer Data, as determined by a court of competent jurisdiction in connection with a Claim alleging a breach of confidentiality, and will hold Customer harmless from and against liability for any Losses to the extent based upon such Claims.
6.3. Customer’s Indemnity. Customer will, at its own expense defend Springboard from and against any and all Claims (i) alleging that the Customer Data or any trademarks or service marks other than Springboard Marks, or any use thereof, infringes the intellectual property rights or other rights, or has caused harm to a third party, or (ii) except for Claims for which Springboard will indemnify Customer, arising out of Customer’s use of the Service or any breach of Section 2.4 (Customer’s Lawful Conduct) or 2.10 (Confidential Information) above, and will hold Springboard harmless from and against liability for any Losses to the extent based upon such Claims.
6.4. Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section 6, the indemnified party will: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section 6 are expressly conditioned upon the indemnified party’s compliance with this Section 6.4 except that failure to notify the indemnifying party of such Claim will not relieve that party of its obligations under this Section 6 but such Claim will be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section 6 will survive termination of this Agreement for one year.7. Suspension/Termination.
7.1. Suspension for Delinquent Account. Springboard reserves the right to suspend Customer’s and any Customer Affiliates’ access to and/or use of the Service for any accounts (i) for which any payment is due but unpaid but only after Springboard has provided Customer two (2) delinquency notices, and at least thirty (30) days have passed since the transmission of the first notice, or (ii) for which Customer has not paid for the renewal term and has not notified Springboard of its desire to renew the Service by the End Date of the then current term. The suspension is for the entire account and Customer understands that such suspension would therefore include Affiliate sub-accounts. Customer agrees that Springboard will not be liable to Customer or to any Customer Affiliate or other third party for any suspension of the Service pursuant to this Section 7.1. Reactivation after suspension may result in additional fees at Springboard’s sole discretion.
7.2. Suspension for Ongoing Harm. Customer agrees that Springboard may with reasonably contemporaneous telephonic, email or other comparable notice to Customer suspend access to the Service if Springboard reasonably concludes that Customer’s Service account is being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of Customer’s use of the Service is causing immediate, material and ongoing harm to Springboard or others. In the extraordinary event that Springboard suspends Customer’s access to the Service under this section, Springboard will use commercially reasonable efforts to limit the suspension to the offending portion of the Service and resolve the issues causing the suspension of Service. Customer further agrees that Springboard will not be liable to Customer nor to any third party for any suspension of the Service under such circumstances as described in this Section 7.2.
7.3. Termination for Cause, Expiration. Either party may immediately terminate this Agreement in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of the receipt of written notice from the non-breaching party. All such notices are to be sent by certified or registered mail or by overnight delivery service.
Such notice by the complaining party will expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and will be sent to the President of Springboard or the Representative of Customer, as applicable, at the address listed in the heading of Order (or such other address that may be provided pursuant to this Agreement) (“Notice”). Upon termination or expiration of this Agreement, Customer will have no rights to continue use of the Service. If this Agreement is terminated by Customer for any reason other than a termination expressly permitted by this Agreement, then Springboard will be entitled to all of the fees due hereunder for the entire Term. If this Agreement is terminated as a result of Springboard’s breach of this Agreement, then Customer will be entitled to a refund of the pro rata portion of any subscription fees paid by Customer to Springboard under this Agreement for the terminated portion of the Term.
7.4. Handling of Customer Data In The Event Of Termination. Customer agrees that following termination of Customer’s account and/or use of the Service, Springboard may immediately deactivate Customer’s account and that following a reasonable period of not less than 90 days will be entitled to delete Customer’s account from Springboard’s “live” site. During this 90 day period and upon Customer’s request, Springboard will grant Customer limited access to the Service for several days for the sole purpose of permitting Customer to retrieve Customer Data, provided that Customer has paid in full all good faith undisputed amounts owed to Springboard. Customer further agrees that Springboard will not be liable to Customer nor to any third party for any termination of Customer access to the Service or deletion of Customer Data, provided that Springboard is in compliance with the terms of this Section 7.4.8. Modification; Discontinuation of The Service.
8.1 To the Service. Springboard may make modifications to the Service or particular components of the Service from time to time and will use commercially reasonable efforts to notify Customer of any material modifications. Springboard reserves the right to discontinue offering the Service at the conclusion of Customer’s then current Term. Springboard will not be liable to Customer nor to any third party for any modification of the Service as described in this Section 8.1.
8.2 To Applicable Terms. If Springboard makes a material change to the Terms, Springboard will notify Customer by either sending an email to the notification email address or posting a notice in the Administrator’s instance of Customer’s account. If Customer does not agree to the change, Customer must so notify Springboard via email@example.com within thirty (30) days after receiving notice of the change. If Customer notifies Springboard as required, then Customer will remain governed by the Terms in effect immediately prior to the change until the end of the then current term for the affected Service. If the affected Service is renewed, it will be renewed under Springboard's then current Terms.9. Service Level Commitment
9.1 Uptime. Springboard commits to provide 99.9% uptime with respect to the Customer’s Service during each calendar quarter of the Term, excluding regularly scheduled maintenance times. If in any calendar quarter this uptime commitment is not met by Springboard and Customer was materially negatively impacted (i.e., attempted to log into or access the Service and failed due to the unscheduled downtime of the Service), Springboard will provide, as the sole and exclusive remedy, a service credit equal to one month’s fee for the use of the Service.
9.2 Scheduled and Unscheduled Maintenance. Regularly scheduled maintenance time does not count as downtime. Maintenance time is regularly scheduled if it is communicated in accordance with the notice section set forth below at least one business day in advance of the maintenance time. Regularly scheduled maintenance time typically is communicated at least a week in advance and scheduled to occur at night on the weekend each quarter. Springboard hereby provides notice that every Saturday night 10:00pm - 10:20pm Pacific Time is reserved for routine scheduled maintenance for use as needed.
Springboard in its sole discretion may take the Service down for unscheduled maintenance and in that event will attempt to notify customer in advance in accordance with the Notice section set forth below. Such unscheduled maintenance will be counted against the uptime guarantee.
9.3 Credit Request. In order to receive a credit under this service level commitment, Customer must request it by emailing Springboard at firstname.lastname@example.org, within five days of the end of the applicable quarter. Any credit request submitted must contain the date and time of the event and a description of the negative material impact on the customer. If Customer submits a credit request and does not receive a prompt automated response indicating that the request was received, Customer must resubmit the request because the submission was not properly received and will not result in a credit. Customers who are past due or in default with respect to any payment or any material contractual obligations to Springboard are not eligible for any credit under this Service Level Commitment. The service credit is valid for up to two years from the quarter for which the credit was issued. Springboard will calculate any service level downtime using Springboard’s system logs and other records.
9.4 Updates/Notice. This Service Level Commitment may be amended by Springboard in its discretion but only after providing thirty days advance notice. Notices will be sufficient if provided to a user designated as an administrator of your Springboard account either: (a) as a note on the screen presented immediately after completion of the log in authentication credentials at the log in screen, or (b) by email to the registered email address provided for the administrator(s) for Customer’s account.
9.5 Exclusion of Sandbox and Beta Accounts. Springboard Sandbox, Beta and debugger accounts and other test environments are expressly excluded from this or any other service level commitment.
10. Notice and Procedure For Making Claims Of Copyright Infringement Under The Digital Millennium Copyright Act. Springboard respects the intellectual property of others, and Service Users must do the same. Springboard may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who have infringed others' intellectual property rights. If Customer (or any User) believes that its work has been copied in a way that constitutes copyright infringement, or its intellectual property rights have been otherwise violated, please provide the Springboard Copyright Agent with the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that has allegedly been infringed;
- a description of where the alleged infringing material is located on the Service;
- the address, telephone number, and email address of the submitting party (if other than as previously provided to Springboard);
- a statement that from the submitting party it has a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- a statement by the submitting party, made under penalty of perjury, that the above information in the notice is accurate and that the submitting party is the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Springboard’s Agent for Notice of Claims of Copyright is: Gordon Russell, Springboard Retail, Inc., 383 Dorchester Ave., Suite 240, Boston, MA 0212711. Definitions.
“Affiliates” means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with Customer, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of Customer.
“Customer Data” means all electronic data or information submitted to the Service by Customer or its Affiliates.
“Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service.
“Springboard Retail Knowledge Base” means the online help center documentation describing the Service features, including User Guides which may be updated from time to time.
“Services” means Springboard’s online business application suite (the “Springboard Service”) and third party hardware products purchased from Springboard as described in the applicable Help Documentation that is procured by Customer from Springboard Retail from time to time, including associated offline components, but excluding Third Party Applications or add ons, and implementation services.
“Third Party Applications” means an online, web-based application or service and on-premise or offline software product, and/or hardware product or device that is provided by a third party, and may or may not interoperate with the Service, including but not limited to those listed on www.springboardretail.com.
“Users” means individuals who are authorized by Customer to use the Service, for whom subscriptions to a Service have been procured, and who have been supplied user identifications and passwords by Customer (or by Springboard at Customer’s request). Users may include but are not limited to Customer’s and Customer’s Affiliates’ employees, consultants, contractors and agents.
“User Guides” means the online user guides for the Service, accessible via login at http://www.springboardretail.com (under Support), as updated from time to time. Customer acknowledges that it has had the opportunity to review the User Guide through a free trial account made available by Springboard Retail.
Springboard Trac Addendum
This Addendum applies to Customers that are purchasing the Springboard Trac service and use of related traffic counting devices (the “Equipment”). The terms listed in this Addendum are in addition to the terms listed in the Terms of Service (the “Terms”). All capitalized terms will have the meanings provided in the Terms unless specifically defined in this Addendum. In the event of a conflict between this Addendum and the Terms, this Addendum will apply.
1. Third Party Application. Customer acknowledges that Springboard Trac is offered through a licensing relationship between Springboard and Scraffic, LLC (“Scraffic”). Customer acknowledges that Scraffic owns all data collected via the Equipment (the “Counter Data”) and that Scraffic grants to both the Customer and Springboard a non-exclusive, sub-licensable, royalty-free license to publish, reproduce, distribute, modify, prepare derivative works of and otherwise use the Counter Data for use with or incorporation into Springboard Trac. Customer also acknowledges that Scraffic reserves the right to use the Counter Data to generate Aggregated Anonymous Data, which may it may freely use and make available for its business purposes. “Aggregated Anonymous Data” means Counter Data and other data submitted to, collected by, or generated by Scraffic in connection with a Customer’s use of Springboard Trac, in aggregate, anonymized form.
2. Equipment - Use. To facilitate its use of Springboard Trac, Customer will be provided with, and must use, the Equipment provided. Customer acknowledges that all Equipment is loaned, not sold or leased, to the Customer for use solely during its purchase of the Springboard Trac service. The Equipment will remain the property of Scraffic. Customer agrees to use a reasonable degree of care to maintain and protect the Equipment, and not to modify, disassemble, decompile, reverse engineer, rent, lease, loan , transfer, or copy the Equipment (including any software or firmware that is part of, incorporated into or running on the Equipment). Customer assumes all risk of loss, damage, theft, or destruction of the Equipment while it is in Customer’s possession or control or that of its agents, including any carrier (except any carrier transporting the Equipment from the possession of Scraffic or Springboard to Customer). If Customer damages Equipment, it will pay $499 per counter device replacement. Customer agrees to keep the Equipment free of all security interests, liens, and other encumbrances of its creditors.
3. Equipment – Repair. If Equipment becomes non-functional through no fault of Customer, Springboard will ship replacement devices within 3 days of receipt of notice from Customer. Customer agrees to return original counter(s) within 7 days to the appropriate Springboard address; if Customer fails to do so, Customer will be charged $499 per counter not returned.
4. Limits on Technical Support. Customer shall not be entitled to any technical support from Springboard for Springboard Trac or the Equipment if any of the following occur:
- Customer alters, damages or modifies Equipment, other than a modification that has been made in accordance with written directions from Springboard;
- Customer is not operating a then supported version of Springboard Trac software;
- Customer has improperly installed Equipment or is using Equipment in an operating system environment that is not supported by Springboard, or
- Customer has opted to use pre-release or beta Equipment.
5.WARRANTY DISCLAIMERS. SPRINGBOARD, ON ITS OWN BEHALF AND ON BEHALF OF SCRAFFIC, DOES NOT MAKE ANY, AND HEREBY EXPRESSLY DISCLAIM ALL, WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO SPRINGBOARD TRAC, THE EQUIPMENT, THE COUNTER DATA, AND ANY OTHER PRODUCTS, SERVICES, OFFERINGS, INFORMATION OR ITEMS PROVIDED, OR TO BE PROVIDED, TO CUSTOMER UNDER THIS ADDENDUM OR OTHERWISE IN CONNECTION WITH SPRINGBOARD TRAC (COLLECTIVELY, THE “OFFERINGS”), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, QUIET ENJOYMENT OR ANY OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. WITHOUT LIMITING THE FOREGOING, WE DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIM, ANY REPRESENTATIONS, WARRANTIES AND/OR GUARANTEES REGARDING (I) THE USE OF OR THE RESULTS OF THE USE OF THE OFFERINGS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, AVAILABILITY, SECURITY OR OTHERWISE; (II) THE CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, OR AVAILABILITY OF THE COUNTER DATA; OR (III) WHETHER THE OFFERINGS WILL MEET YOUR REQUIREMENTS.
6. Termination. In the event that Springboard and Scraffic terminate their licensing relationship, Springboard will provide customer 60 days written notice and customer must return the Equipment within 30 days of termination of the TRAC service. All rights to use Springboard Trac and associated obligations of Springboard and Scraffic will expire at the conclusion of the then-current term as listed in the applicable Order. Data availability post-termination will be as set forth in Section 7.4 of the Terms.