Terms of Service
THESE TERMS OF SERVICE (“AGREEMENT”) GOVERN THE CLIENT’S ACQUISITION AND USE OF SERVICES (DEFINED BELOW). BY (AS APPLICABLE) EXECUTING A SERVICE ORDER THAT REFERENCES THIS AGREEMENT OR ACCESSING AND USING THE SERVICES, YOU, THE CLIENT, HEREBY CONFIRMS THAT YOU HAVE READ AND AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO A SERVICE ORDER OR USING THE SERVICES ON BEHALF OF AN ORGANIZATION OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” AND “CLIENT” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE OR ALLOW THE ENTITY TO USE THE SERVICES.
THIS AGREEMENT WAS LAST UPDATED ON FEBRUARY 16, 2023. IT IS EFFECTIVE BETWEEN YOU AND US AS OF THE DATE OF THE SERVICE ORDER (“EFFECTIVE DATE”).
“Applicable Laws” means all laws, statutes, ordinances, codes, rules and regulations which have been enacted by a government authority and are in force as of the Effective Date or come into force during the term of this Agreement, in each case to the extent that the same are applicable to the performance by the relevant party hereunder.
“Client Content” means all deliverables, data, information and materials that Client and its affiliates deliver to Extole in connection with the Services, including any trademarks, trade names, logos and marketing assets, and all data, information, content and materials developed by a Consumer and transmitted through the Services.
“Consumer” means a consumer or potential consumer of the products and/or services of Client which Client wishes to promote using the Services.
“Platform” means Extole’s underlying technology (including any software, hardware, firmware, or other platform technology or software) used to provide the Services via software-as-a-service.
“Service Term” means the term during which Client subscribes to access and use the Services as set forth in the relevant Service Order.
“Services” means the Platform and any ancillary professional services to be delivered by Extole, if any, as set forth in an applicable Service Order.
“Service Order” means a service order executed by Client and Extole specifying the Services, each party’s obligations and requirements, , associated fees and payment schedule, applicable Client’s site domain(s) or business units and such other details as the parties may agree therein, which shall reference this Agreement and be incorporated herein.
2. Certain Responsibilities; Licenses; Data
Services. Subject to the terms of this Agreement, Extole shall provide Client the relevant Services and Extole will provide Client (and its Consumers where contemplated by a Service Order) with access and use of the Platform during the relevant Service Term. The access and use of the Platform is limited to Client and the Client-owned URLs, mobile apps and other systems as specified in the applicable Service Order (the “Client Properties”). Extole may make upgrades and improvements to the Platform from time to time, including modifying or removing features of the Platform, provided that such modifications do not materially degrade any functionality or features of the Platform.
Supported Browsers. The Platform is accessed through standard Internet browser software. A list of currently supported browser software is available at the following link: https://www.extole.com/browser-support/. Extole may modify this list from time to time which Extole generally updates quarterly. Extole supports all browsers with at least 10% market share as reported by Net Market Share (or similar organization).
Consumer Data. To the extent required by Applicable Laws, Client will obtain all required consents and make all appropriate disclosures to Consumers regarding the Client’s use and disclosure of any data relevant to Consumers that is communicated or provided to Extole in connection with the provision of Services hereunder, including in connection with Extole’s provision of the Services. Except as necessary to perform the Services, required by Applicable Law or approved and/or directed by Client, Extole will not disclose or use any data relevant to Consumers that is communicated or provided to Extole in connection with the provision of Services hereunder.
Other Client Responsibilities. Client will provide the Client Content required by Extole to provide the Services. Client is responsible for integrating the Platform with the Client Properties (i.e., Client’s implementation of tags, links, APIs, etc., to integrate the Client programs to the Platform) and Extole will not be liable or responsible for any Service failures or performance issues arising from Client’s failure to perform such integration. Client acknowledges that all Client Content and any other communications, data, text, messages and other material submitted to Extole directly or through the Platform on behalf of Client, or by Client, its contractors, or by Consumers, are the sole responsibility of the Client. Client is fully responsible to ensure that the Client Content and any referral or other programs run by Client using the Platform comply with Applicable Law.
General Restrictions. Client may not, and may not allow others to: (i) copy, reproduce, modify, translate, prepare derivative works of, de-compile, reverse engineer, disassemble or otherwise attempt to derive source code of the Platform; (ii) use, evaluate or view the Services or Platform for the purpose of designing, or creating any environment, program, or infrastructure, which performs functions similar to the Services or Platform; (iii) other than as expressly contemplated by a Service Order, use the Services or Platform; or (iv) make the Platform available to third parties in a service bureau arrangement or for any similar commercial time sharing or third party training use. Client shall (a) take all reasonable precautions to prevent unauthorized or improper use of the Platform, (b) not interfere with or disrupt the integrity or performance of Platform, and (c) not attempt to gain unauthorized access to Platform or its related systems or networks.
Malicious Content. Client may not access, store, distribute or transmit any material in or through the Platform that: (1) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (2) facilitates illegal activity; (3) depicts sexually explicit images; (4) promotes unlawful violence; (5) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activity; or (6) causes damage or injury to any person or property, or any person’s rights of privacy, publicity and/or intellectual property.
Platform Access. Client shall ensure the security of its account IDs, passwords, and connectivity with the Platform. If an account ID or password is stolen or otherwise compromised, Client shall immediately change the password and inform Extole of the compromise.
3. Fees and Payment
Service Fees. Client shall pay Extole all fees and/or consideration outlined in a Service Order. Unless otherwise specified on the relevant Service Order, Services are billed in advance, invoiced amounts will be due and payable within thirty (30) days after receipt of invoice, and all payments to Extole shall be in US dollars. If Client defaults in any payment when due, Extole, at its option and without prejudice to its other lawful remedies, may on notice to Client suspend access to and performance of Services (for the avoidance of doubt, in the event of such suspension Extole will not be obligated to fulfill any Client reward programs during the period of suspension).
Reward Fees. Client is responsible for providing to Extole in advance any rewards that are to be issued through the Platform. Under no circumstance will Extole be required to deliver any rewards that are not pre-funded by Client.
Taxes. Client shall be responsible for all sales, use or similar taxes, excluding taxes based solely upon Extole’s income (collectively, the “Taxes”). When Extole has the legal obligation to pay or collect Taxes, the appropriate amount shall be invoiced to and paid by Client unless Client provides Extole with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. Term and Termination
Term. This Agreement will commence on the Effective Date and continue until terminated as provided herein or until the last Service Term in all relevant Service Orders have expired, whichever is earlier (“Term”). Notwithstanding anything to the contrary in this Agreement, unless this Agreement is terminated by Extole for Client’s breach, the Service Term and all Service Orders shall automatically extend and continue in effect if, after the expiration or termination of the Service Term, Client continues to use the Platform. For the avoidance of doubt, in the event of the foregoing extension of the Service Term, Client will be obligated to continue to pay all applicable fees based on the last billing rate in effect.
Termination. This Agreement or any given Service Order, respectively, may be terminated by a party: (i) upon thirty (30) days written notice (fifteen (15) days for failure to pay fees), if the other party materially breaches any provision of this Agreement or such Service Order, respectively, and such breach remains uncured after such notice period expires; or (ii) effective immediately, if the other party ceases to do business, or otherwise terminates its business operations without a successor; or (iii) effective immediately, if the other party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is filed against it and not dismissed within ninety (90) days. Termination of this Agreement shall automatically terminate each outstanding Service Order. The following provisions shall survive any termination or expiration of this Agreement: Sections 2 (except 2.1) – 8, as well as those sections of the Agreement that, by their context, should survive.
5. Ownership; Branding
Client Content. As between the parties, Client owns all Client Content. Client hereby grants to Extole a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 8.1), royalty-free right during the relevant Service Term to use, display, transmit, and distribute the Client Content solely as necessary to provide the Service to Client.
Platform; Services. As between the parties, all right, title and interest in and to the Platform and the Services and all of Extole’s proprietary technology are and shall remain Extole’s or its licensors’. No implied rights are granted herein and Extole and its licensors reserve all rights, title and interest in and to the forgoing that are not expressly granted herein. There are no implied rights. Extole shall have the right to collect, use and distribute aggregated information, analysis, statistics, related benchmarking algorithms and other data generated by the Service (or derived from Client’s use of the Service) provided, however, that Extole shall not disclose any such data unless such data is in an aggregated form that would not permit a third party to identify the data as associated with Extole or any of its users.
Branding. Extole has the right to include the phrase “Powered by Extole” or “Extole” on any Consumer-facing communications generated or hosted or delivered by the Platform.
“Confidential Information” means any non-public data, information and other materials regarding the products, software, services, or business of a party (and/or, if either party is bound to protect the confidentiality of any third party’s information, of a third party) provided by one party (“Disclosing Party”) to the other party (“Receiving Party”) where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information should, by its nature, be reasonably considered to be confidential and/or proprietary. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is already known to the Receiving Party prior to disclosure by the Disclosing Party; (ii) becomes publicly available without fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure, or is approved for release by written authorization of the Disclosing Party; or (iv) is independently developed or created by the Receiving Party without use of the Disclosing Party’s Confidential Information, as evidenced by the Receiving Party’s records kept in the ordinary course of its business. Except as expressly authorized herein, the Receiving Party agrees to: (a) use the Confidential Information of the Disclosing Party only to perform hereunder (and for Extole, including providing the features and services associated with the normal use of the Platform) or exercise rights granted to it hereunder; (b) treat all Confidential Information of the Disclosing Party as confidential using no less than reasonable care given the nature of the Confidential Information; and (c) disclose the Disclosing Party’s Confidential Information only to those employees and contractors of the Receiving Party who have a need to know such information for the purposes of this Agreement, provided that any such person shall be subject to obligations of non-use and confidentiality with respect to such Confidential Information at least as restrictive as the terms of this Agreement, and the Receiving Party shall remain liable for any non-compliance of such employee or contractor with the terms of this Agreement. Each party shall be entitled to disclose that portion of Confidential Information that is required to provide by law, rule, regulation, court order or regulatory authority, provided that it gives the disclosing party reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure. Each party shall have the right to seek an injunction (without having to post a bond) to prevent any breach or continued breach of this section.
7. Warranties, Extole IP Indemnity; Liability Limitations.
Extole Warranties. Extole warrants to Client that the Services will substantially meet the requirements described in the relevant Service Order and any professional services shall be delivered by personnel with relevant experience and shall be delivered in a manner conforming to generally accepted industry standards for similar services. Client must notify Extole of any warranty deficiency within thirty (30) days of the occurrence of the non-conforming Services in order to receive any warranty remedy. For any breach of the forgoing warranties, Client’s sole and exclusive remedy shall be either (i) for Extole to re-perform such deficient services, or (ii) if re-performance in compliance with this warranty is not possible or practical, then Client shall be entitled to a pro-rata refund of fees paid to Extole directly attributable to the deficient services, in which case either party may terminate the relevant Service and Client will obtain a refund of any prepaid, unused fees for any services terminated.
Mutual Warranties. Each party represents and warrants that it has the necessary power and authority to execute and deliver this Agreement, to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby.
Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS AND EXTOLE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. Client acknowledges that Extole is not responsible for the integrity of data and information, including without limitation, Client Content and Promotions, including completeness, accuracy, validity, authorization for use and integrity over time, and Extole shall not be responsible for any loss, damage or liability arising out of such data, including any mistakes contained in such data or the use or transmission of such data.
Extole IP Indemnification. Extole will defend, indemnify and hold Client harmless from and against any and all third party claims and any resulting third party liabilities, losses, expenses and damages (collectively, the “Claims”) resulting from a claim that the Platform (specifically excluding any Client programs and Client Content) violates or infringes such third party’s U.S. intellectual property right. If the Platform, or any portion thereof becomes, or in the opinion of Extole may become, the subject of a Claim, then Extole may, at its option (i) procure for Client the right to use the Platform free of any third party liability; or (ii) replace or modify the Platform with non-infringing components with substantially similar functionality; or (iii) terminate this Agreement upon notice to Client and refund to Client any prepaid unused fees for affected Services. The forgoing obligations described in this Section define Client’s sole and exclusive remedies for any claims that the Platform violates or infringes a third party intellectual property right.
Client Indemnification. Client will defend, indemnify and hold Extole, its affiliates and their respective officers, directors, employees, agents and representatives, harmless from and against any and all Claims resulting from the Client programs or Client Content.
Indemnification Procedure. For all indemnity obligations described herein, the following shall apply. The indemnified party will notify the indemnifying party in a reasonably prompt manner of any claim for which the indemnified party is seeking indemnification pursuant to this Agreement. The indemnifying party may thereafter assume sole control of the defense and settlement of such claim. The indemnified party will have the right to participate at its own sole cost and expense in the defense or settlement of such claim. The indemnified party will provide the indemnifying party with a reasonable amount of assistance in connection with defending or settlement any such claim, at the indemnifying party’s expense.
Limitation of Liability. Except as may arise out of a party’s breach of Section 6 (Confidentiality), neither party will be liable to the other or any third party for loss of profits, or special, indirect, incidental, consequential, cover costs, or exemplary damages, including costs, in connection with the performance of the Services, or the performance of any other obligations under this Agreement, even if it is aware of the possibility of the occurrence of such damages. Except as may arise out of a party’s breach of Section 6 (Confidentiality), fees owed by Client hereunder or a party’s indemnification obligations hereunder, the total liability of a party to the other party for any and all claims and damages under this Agreement, whether arising by statute, contract tort or otherwise, will not exceed the amounts paid by (and not otherwise refunded to) Client to Extole under any Service Order for the Services which form the subject of the claim in the twelve month period preceding the event which gave rise to the claim.
Assignment. Either party may assign all or part of this Agreement to any successor-in-interest to all or substantially all of the business or assets of the assigning party pertaining to the subject matter hereof, whether voluntarily or by merger, reorganization, asset sale, or otherwise. Otherwise this Agreement is not transferable or assignable by a party without the prior written consent of a party, which consent shall not be unreasonably withheld, conditioned or delayed Any attempted assignment in violation of this section shall be null and void and have no effect. Subject to the foregoing, this Agreement is binding on any permitted successors and assignees.
Force Majeure. Neither party will be in default or otherwise liable for any delay in or failure of its performance under this Agreement if, to the extent and for so long as such delay or failure arises by any reason beyond its reasonable control, which by its nature could not have been foreseen or, if it could have been foreseen, was unavoidable; provided that the party claiming a force majeure event shall have exercised commercially reasonable efforts and diligence to minimize the effect of any such event.
Governing Law; Dispute Resolution. This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of California without reference to conflict of laws principles, and shall not be subject to the U.N. Convention on the International Sale of Goods. If any action of law or in equity is necessary to enforce or interpret the terms of this Agreement, the substantially prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements, in addition to any other relief to which such Party is entitled. If a party institutes a civil action that arises out of this Agreement, the prevailing party shall be entitled to recover from the losing party all the prevailing party’s costs and expenses, including court costs and reasonable attorneys’ fees.
Independent Contractors. Extole is an independent contractor of Client and nothing in this Agreement will be deemed to create any agency, employee-employer relationship, partnership, or joint venture between the parties. Except as otherwise specifically provided in this Agreement, neither party will have or represent that it has the right, power or authority to bind, contract or commit the other party or to create any obligation on behalf of the other party.
Notices. All notices and consents required or permitted under this Agreement must be in writing (email shall not suffice); must be personally delivered or sent by registered or certified mail (postage prepaid), by reputable international overnight courier, at the parties’ address either set forth below or on the relevant Service Order, and will be effective upon receipt. Each party may change its address for receipt of notices by giving notice of the new address to the other party. To Extole:
Attn: Legal Department
548 Market St., #39231
San Francisco, CA 94104
Severability. If any provision of this Agreement is held by a court of law to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected or impaired thereby and the illegal, invalid, or unenforceable provision will be deemed modified such that it is legal, valid, and enforceable and accomplishes the intention of the parties to the fullest extent possible.
Amendment; Waivers. Any amendment to this Agreement must be in writing, signed by an authorized representative of each party. The failure of either party to enforce any provision of this Agreement, unless waived in writing by such party, will not constitute a waiver of that party’s right to enforce that provision or any other provision of this Agreement.
Third-Party Beneficiary. Neither party intends to, nor shall this Agreement create, in any manner whatsoever, an interest or beneficiary in a third party.
Construction. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. This Agreement shall be deemed to be the product of all parties hereto, and no ambiguity shall be construed in favor of or against either party. The terms, provisions or conditions of any purchase order or other business form or written authorization used by Client will have no effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Extole to object to those terms, provisions or conditions. In the event of any conflict between a Service Order and this Agreement, the terms and conditions of this Agreement shall govern, unless the Service Order specifically recites a provision that it intends to supersede this Agreement.
Counterparts. This Agreement may be executed via facsimile or scanned electronic communication, each of which shall be deemed an original, and in several counterparts all of which shall constitute one and the same instrument.
Entire Agreement. This Agreement shall constitute the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior discussions, understandings and agreements, whether oral or written, with respect to the subject matter.