Terms of Service
1. ATTENTION! THE FOLLOWING TERMS AND CONDITIONS WILL BE LEGALLY BINDING ON CUSTOMER UPON REGISTERING FOR A FREE TRIAL WITH SPRINGBOARD RETAIL. CUSTOMER SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE BEFORE SIGNING UP.
2. Terms of Service. Customer acknowledges and agrees to the following terms of service, which together with the terms of the Springboard Retail Subscription Agreement entered into between Customer and Springboard Retail, shall govern Customer’s access and use of the Springboard Retail’s mobile and website applications and third party hardware products (together, the “Services”). Capitalized terms not otherwise defined herein shall have the meaning given to them in Section 10 (Definitions) 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. 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 Retail, including Secure Socket Layer (SSL) protocol or other protocols accepted by Springboard Retail, and to follow logon procedures for services that support such protocols. Springboard Retail 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 Retail. Springboard Retail 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 shall 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. Customer shall authorize access to 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 Retail 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 shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service and shall promptly notify Springboard Retail of any unauthorized access or use of the Service and any loss or theft or unauthorized use of any User’s password or name and/or Service account numbers.
2.4. Customer’s Lawful Conduct. The Service allows Customer to send Electronic Communications directly to Springboard Retail and to third parties. Customer shall 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 shall store credit card and social security data only in the designated fields for such data. Customer shall 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 shall not permit Users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall 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, 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 Retail. Customer shall 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 Retail. Customer shall 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 shall 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 Web Sites, Products and Services. Springboard Retail may offer certain Third Party Applications for sale through separate and additional order forms. . Any procurement of such Third Party Applications by Customer shall be subject to the terms can conditions specified in such separate and additional order forms.
In addition, Springboard Retail or third party providers may offer Third Party Applications or services, including implementation, customization and other consulting services related to Customers’ use of the Service. Except as written in separate and additional order forms, , Springboard Retail does not warrant any such Third Party Applications or services, regardless of whether or not such Third Party Applications or services are provided by a third party that is a member of a Springboard Retail 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.
Springboard Retail 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 or services for use with the Service, Customer agrees that Springboard Retail 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 Retail shall 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 Applications or services is required to use the Service. Usage charges may apply if Third Party Applications or services are deployed by Customer for use with the Service or otherwise if Customer usage as defined by API calls exceeds thresholds set by Springboard Retail.
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 Retail’s interception 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 Retail. 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 Retail 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 Retail, including, but not limited to, the Internet and Customer’s local network.
2.7. Service Level. During the Term, the Springboard Retail Service offerings will meet the service level specified in the “Service Level Commitment” listed in Section 9 of this document, which is hereby incorporated by reference. If the applicable Service fails to achieve the 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 Retail’s Support. Upon initiation of the service Customer will be required to subscribe to Springboard Retail Premium Support for a minimum period of 90 days. As part of the Service, Springboard Retail will provide Customer with Help Documentation and other online resources to assist Customer in its use of the Service. Springboard Retail also offers optional and “for fee” training classes, professional services consultation and support services. If you have procured Springboard Retail Support Services, the current Springboard Retail URL Terms for support services are located at http://springboardretail.com/premium-support, or such other URL as specified by Springboard Retail, which are hereby incorporated by reference. Customer acknowledges that Springboard Retail has extensive experience helping Customers improve utilization and realization of benefits of the Service, and that not following the advice of Springboard Retail and/or not engaging Springboard Retail or other Springboard Retail authorized implementation or development partner in the provision of 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 Retail does not store or process credit card data, as such PCI DSS compliance is out of scope. If at a future time Springboard Retail should store or process credit card data Springboard Retail shall maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data. During the Term, Springboard Retail shall maintain PCI DSS compliance for the portions of the Springboard Retail Service that store and process credit card data and shall ensure performance of an annual SSAE 16 (SOC 1) / ISAE 3402 Type II Report*. No more than once per year, Customer may request a copy of Springboard Retail’s final SSAE 16 (SOC 1) / ISAE 3402 Type II Report* that covers the prior calendar year.
*or similar third party audit to an established industry standard selected by Springboard Retail.
2.10. Confidentiality. For purposes of this Agreement, “Confidential Information” shall include the terms of this Agreement, 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 Retail’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 monthly in advance for the service based on the prior month’s usage. Any adjustment due 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 Retail 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 Retail standard business processes, which period shall not be less than one year.
Springboard Retail will not use personally-identifiable confidential data without prior Customer consent. Springboard Retail may use aggregate de-identified Customer data and statistics for internal analysis and external marketing 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 license granted to Customer 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 Retail. Springboard Retail service marks, logos and product and service names are marks of Springboard Retail, respectively (the "Springboard Retail Marks"). Customer agrees not to display or use the Springboard Retail Marks in any manner without Springboard Retail’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. Cancellation of Service. Customer may cancel the service at any time by providing 30 day written notice to Springboard Retail by email to email@example.com. 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.
2.15. 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 shall 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 shall meet (or confer by telephone) at least once in a good faith attempt to resolve the perceived dispute.
2.16. Customer Reference. Customer agrees that Springboard Retail can use your company name and logo in connection with marketing and promoting the Service. Customer grants Springboard Retail the right to list Customer as a customer in discussion with other retailers and on the Springboard Retail website, including use of the Customer logo on the website. Customer will provide Springboard Retail with a quote noting the advantages of deploying the Service within its stores. Customer will allow Springboard Retail to publish a case study with Springboard Retail and will provide attributed quotes, and act as a customer reference for Springboard Retail. Customer will also, as reasonably requested by Springboard Retail and to the best of its ability, help promote the Springboard Retail solution to other retailers.
2.17. Access to APIs. The Service may include access to application programming interfaces (“APIs”). Customer acknowledges and agrees that Springboard Retail 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 Retail 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 RETAIL DOES NOT REPRESENT OR WARRANT, AND SPECIFICALLY DISCLAIMS, THAT ANY APIs WILL BE AVAILABLE WITHOUT INTERRUPTION OR WITHOUT BUGS.
3.1. Warranty of Functionality. Springboard Retail 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 Retail’s breach of this warranty shall be that Springboard Retail shall 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 Retail is unable to restore such functionality, Customer shall be entitled to terminate the Agreement and receive a prorata refund of the subscription fees paid under the Agreement for its use of the Service for the terminated portion of the Term. Springboard Retail shall 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 shall only apply if the applicable Service has been utilized in accordance with the Help Documentation, this Agreement and applicable law.
3.2. No Virus Warranty. Springboard Retail warrants that the Service will be free of viruses, Trojan horses, worms, spyware, or other such malicious code (“Malicious Code”), except for any Malicious Code contained in Customer-uploaded attachments or otherwise originating from Customer.
4. Disclaimer of Warranties. EXCEPT AS STATED IN SECTION 3 ABOVE, SPRINGBOARD RETAIL 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 RETAIL. 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. CUSTOMER AGREES THAT THE CONSIDERATION WHICH SPRINGBOARD RETAIL IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY SPRINGBOARD RETAIL OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE 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 THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY LAW) OR OTHERWISE SHALL IN NO EVENT EXCEED THE DIRECT DAMAGE LIMITATIONS AS SET FORTH IN SECTION 5.
Except with regard to amounts due under this Agreement, and a party’s breach of Section 2.10 (Confidential Information), the maximum liability of either party to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment 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, shall in no case exceed the equivalent of 12 months in subscription fees applicable at the time of the event, and in the event of a breach of Section 2.10 (Confidential Information) of this Terms of Service, such maximum liability of either party shall be an amount equal to three (3) times the equivalent of 12 months of subscription fees applicable at the time of the event. Notwithstanding the previous sentence, neither party shall be liable to the other party to the extent such liability would not have occurred but for the other party’s failure to comply with the terms of this Agreement The essential purpose of this provision is to limit the potential liability of the parties arising from this Agreement. The parties acknowledge 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 Retail to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher.
THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S INDEMNITY OBLIGATIONS EXCEPT AS 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 Products. All third party hardware and other products 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 RETAIL 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 RETAIL 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.
6.1. Infringement. Springboard Retail shall, 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 shall 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 Retail notifies Customer to discontinue use because of an infringement claim, (c) modifications to the Service not made by Springboard Retail, or (d) use of the Service in combination with any software, application or service made or provided other than by Springboard Retail.
If a Claim is brought or threatened, Springboard Retail shall, 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 subscription fees paid for under the Agreement for the terminated portion of the Term. The rights and remedies granted Customer under this Section 6.1 state Springboard Retail’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 Retail shall, 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 Retail’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 shall hold Customer harmless from and against liability for any Losses to the extent based upon such Claims.
When Springboard Retail is at fault but such fault does not rise to the level of gross negligence or willful misconduct, Springboard Retail shall, at its own expense and subject to the limitations set forth in this Section 6 and the amount of liability set forth in Section 5 applicable in the event of a breach of Section 2.10, defend Customer from and against any Claims, and shall hold Customer harmless from and against liability for any Losses to the extent based upon Claims, arising out of or relating to Springboard Retail’s breach of Section 2.10 (Confidential Information) of this Terms of Service.
Provided that Springboard Retail complies with this Section 6.2, Customer shall be entitled as its sole and exclusive remedy to terminate the Agreement and receive a pro-rata refund of the subscription fees paid for under the Agreement for the terminated portion of the Term.
6.3. Customer’s Indemnity. Customer shall, at its own expense and subject to the limitations set forth in this Section 6, defend Springboard Retail from and against any and all Claims (i) alleging that the Customer Data or any trademarks or service marks other than Springboard Retail Marks, or any use thereof, infringes the intellectual property rights or other rights, or has caused harm to a third party, or (ii) arising out of Customer’s breach of Section 2.4 (Customer’s Lawful Conduct) or 2.10 (Confidential Information) above and shall hold Springboard Retail 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 shall: (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 shall not relieve that party of its obligations under this Section 6 but such Claim shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section 6 shall survive termination of this Agreement for one year.
7.1. Suspension for Delinquent Account. Springboard Retail 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 Retail 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 Retail 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 Retail shall 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 will result in additional fees.
7.2. Suspension for Ongoing Harm. Customer agrees that Springboard Retail may with reasonably contemporaneous telephonic notice to Customer suspend access to the Service if Springboard Retail reasonably concludes that Customer’s Service is being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of Customer’s Service is causing immediate, material and ongoing harm to Springboard Retail or others. In the extraordinary event that Springboard Retail suspends Customer’s access to the Service, Springboard Retail 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 Retail shall 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 written notice from the non-breaching party.
Such notice by the complaining party shall 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 shall be sent to the General Counsel of the alleged breaching party at the address listed in the heading of this Agreement (or such other address that may be provided pursuant to this Agreement) (“Notice”). Upon termination or expiration of this Agreement, Customer shall 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 Retail shall be entitled to all of the fees due under this Agreement for the entire Term. If this Agreement is terminated as a result of Springboard Retail’s breach of this Agreement, then Customer shall be entitled to a refund of the pro rata portion of any subscription fees paid by Customer to Springboard Retail 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 Retail may immediately deactivate Customer’s account and that following a reasonable period of not less than 90 days shall be entitled to delete Customer’s account from Springboard Retail’s “live” site. During this 90 day period and upon Customer’s request, Springboard Retail 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 Retail. Customer further agrees that Springboard Retail shall 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 Retail is in compliance with the terms of this Section 7.4.
8. Modification; Discontinuation of The Service.
8.1 To the Service. Springboard Retail 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 Retail reserves the right to discontinue offering the Service at the conclusion of Customer’s then current Term. Springboard Retail shall 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 Retail makes a material change to any applicable URL Terms, then Springboard Retail 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 the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify Springboard Retail via email@example.com within thirty days after receiving notice of the change. If Customer notifies Springboard Retail as required, then Customer will remain governed by the URL 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 Retail's then current URL Terms.
9. Service Level Commitment
9.1 Uptime. Springboard Retail 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 Retail 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 Retail shall 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 two full business days in advance of the maintenance time. Regularly scheduled maintenance time typically is communicated at least a week in advance, scheduled to occur at night on the weekend, and takes less than 10-15 hours each quarter. Springboard Retail hereby provides notice that every Saturday night 10:00pm - 10:20pm Pacific Time is reserved for routine scheduled maintenance for use as needed.
Springboard Retail 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 Retail 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 Retail 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 Retail shall calculate any service level downtime using Springboard Retail’s system logs and other records.
9.4 Updates/Notice. This Service Level Commitment may be amended by Springboard Retail 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 Retail 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 Retail Sandbox, Beta and debugger accounts and other test environments are expressly excluded from this or any other service level commitment.
“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.
“Help Documentation” means the online help center documentation describing the Service features, including User Guides which may be updated from time to time.
“Services” means Springboard Retail’s online business application suite (the “Springboard Retail Service”) and third party hardware products purchased from Springboard Retail 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 and implementation services.
“Third Party Applications” means online, Web-based applications or services and offline software products that are provided by third parties, and interoperate with the Service, including but not limited to those listed on 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 Retail 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.
“URL Terms” means the terms with which Customer must comply, which are located at a URL and referenced in this Agreement.
Terms of Service | 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.