Popl Teams - Terms And Conditions

1.     SERVICE AND SUPPORT

1.1.    Subject to the terms of this Agreement, Popl Co (“Company”) will provide Customer the “Service” as defined in an ordering document executed by Company and Customer (“Order Form”) in accordance with the service level terms attached as Exhibit B to Order Form.

1.2.    Subject to the terms of this Agreement, Company will provide Customer with reasonable technical support services in accordance with the terms attached as Exhibit C to Order Form.

2.    RESTRICTIONS AND RESPONSIBILITIES

2.1. Customer will not, directly or indirectly:

2.1.1. Reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”),
 2.1.2. Modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services),
 2.1.3. Use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or
 2.1.4. Remove any proprietary notices or labels.

2.2. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer and its affiliates a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.

2.3. Customer will use the Services only in compliance with all applicable laws and regulations.

2.4. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any third-party claim or action that arises from an alleged violation of the foregoing Paragraphs 2.1, 2.2, and 2.3.

2.5.  Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of this Agreement.

2.6  Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, hardware, servers, modems, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

3.    CONFIDENTIAL AND PROPRIETARY RIGHTS

3.1. Each party (“Receiving Party”) understands that the other party (“Disclosing Party”) has disclosed or may disclose non-public business, technical or financial information relating to the Disclosing Party’s business that is either marked as confidential or that a reasonable person would consider to be confidential given the nature of the information or the circumstances of disclosure (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Content”). The Receiving Party agrees:

3.1.1. To take reasonable precautions to protect such Proprietary Information, and

3.1.2. Not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.

3.2. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document:

3.2.1. Is or becomes generally available to the public without breach of this Agreement,

3.2.2. Was in its possession or known by it prior to receipt from the Disclosing Party,

3.2.3. Was rightfully disclosed to it without restriction by a third party,

3.2.4. Was independently developed without use of any Proprietary Information of the Disclosing Party, or

3.2.5. Is required to be disclosed by law, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. In any event, the Receiving Party will disclose no more than that portion of the Proprietary Information that is required.

3.3. Company shall own and retain all right, title, and interest in and to:

3.3.1. The Services and Software, all improvements, enhancements, or modifications thereto.

3.3.2. Any software, applications, inventions, or other technology developed in connection with Services, implementation, or support, and

3.3.3. All intellectual property rights related to any of the foregoing.

3.4. Company does not sell, lease, rent or otherwise share for consideration Customer Content.

3.5. Customer shall own and retain all right, title, and interest in and to Customer Content.

3.6.Company will share Customer Content only under the following circumstances:

3.6.1. With select service providers who perform work on Company’s behalf to provide the Services,

3.6.2. To the extent needed to comply with laws or to respond to lawful requests and legal processes (provided that Company will endeavor to notify Customer if Company has received a lawful request for Customer Content),

3.6.3. To protect the rights and property of Company, its agents, other Company customers, and others, including, but not limited to, enforcing Company’s agreements, policies, and this Agreement,

3.6.4. In an emergency, including to protect Company’s information security or the personal safety of any person,

3.6.5. In connection with a sale or transfer of all or a part of Company’s business or assets (business deals may include, for example, any merger, financing, acquisition, divestiture, or bankruptcy transaction or proceeding); or

3.6.6. As directed by Customer, including through its use of the Services.

3.7.  Customer grants Company a worldwide, license during the Term to store, use, and access Customer Content solely for the limited purposes of:

3.7.1. Performing Company’s obligations under this Agreement and any applicable Order Form,

3.7.2. Responding to service issues and requests for support,
3.7.3. Complying with Customer’s instructions, and
3.7.4. Maintaining and improving the Services.

3.8. In accordance with Paragraph 3.4 of this Agreement, Company may also use Customer Content derived from Customer’s use of the Services in an anonymized and aggregated form (“Aggregated Data”) for Company’s own business purposes to provide or improve Services, including use, duplication, modification, and creation of derivative works regarding usage and performance of Aggregated Data. Aggregated Data does not and cannot directly or indirectly identify Customer, End Users, or any individual data subjects. Company shall own all right, title and interest to the Aggregated Data and any derivative works thereof. No rights or licenses are granted except as expressly set forth herein.

3.9. Customer grants Company the right to store, process and retrieve personally identifiable information including, without limitation, name, phone number, or email address solely as reasonably necessary:

3.9.1. To provide the Services to Customer,
3.9.2. To prevent or address service, security, support, or technical
issues,
3.9.3. As required by law, and
3.9.4. As expressly permitted in writing by Customer

4.    PAYMENTS

4.1. Customer will pay Company the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the service capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, however, Company may not change fee rate structure during any period in which Customer has pre-paid for that period.

4.2. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support departments.

4.3. Company shall bill Customer via invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after Customer receipt of a reasonably undisputed invoice. Unpaid amounts are subject to a finance charge of 1.50% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.

4.4. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income. Company shall include any sales tax, if applicable, on any invoices.

5.    TERM AND TERMINATION

5.1. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

5.2. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice, if the other party materially breaches any of the terms or conditions of this Agreement and does not cure the breach within such notice period. Customer will pay in full for the Services up to and including the last day on which the Services are provided.

5.3. If Customer terminates this Agreement and any applicable Order Form due to a material breach by Company, then Company shall promptly refund any prepaid fees for the Services to be provided after the effective termination date. .

5.4. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

6.    WARRANTY AND DISCLAIMER

6.1. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.

6.2. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7.    INDEMNIFICATION

7.1. Company shall hold harmless Customer and its employees, officers, directors, assigns, agents, and customers from liability to third parties resulting from infringement by the Service of any valid patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Company will not be responsible for any settlement it does not approve in writing

7.2. The foregoing obligations do not apply with respect to portions or components of the Service:

7.2.1. Not supplied by Company,
7.2.2. Made in whole or in part in accordance with Customer specifications,
7.2.3. That are modified by or on behalf of any person other than Company or Company Personnel after delivery by Company,
7.2.4. Combined with other products, processes, or materials where the alleged infringement relates to such combination,
7.2.5. Where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or
7.2.6. Where Customer’s use of the Service is not strictly in accordance with this Agreement.

7.3. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense

7.3.1. Replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality,
7.3.2. Obtain for Customer a license to continue using the Service during the Term, or
7.3.3. If neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

7.4.In addition, Company shall indemnify and hold Customer, its affiliates, directors, employees and subcontractors harmless from liability to third party claims resulting from:

7.4.1. A breach of the Company Data Protection Addendum, which is incorporated into this Agreement by reference,
7.4.2. A breach of Section 3 (Confidentiality); or
7.4.3. A violation of applicable laws (including but not limited to regulations such as GDPR as they relate to Personal Data processed or stored by the Company).

8.    LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR (I) BODILY INJURY OF A PERSON OR DAMAGE TO TANGIBLE PROPERTY, (II) BREACH OF CONFIDENTIAL INFORMATION IN SECTION 3, (III) INDEMNIFICATION OBLIGATIONS STATED IN SECTION 7, (IV) WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OR (V) VIOLATIONS OF LAW, EACH PARTY TO THIS AGREEMENT AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED TWO TIMES (2X) THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

IN THE CASE OF DAMAGES RESULTING FROM A CLAIM RELATED TO A PARTY’S INDEMNIFICATION OBLIGATIONS, THE LIABILITY OF EACH PARTY SHALL BE LIMITED TO THE GREATER OF (i) $100,000 USD; OR (ii) A PARTY’S CYBER INSURANCE LIMITS PER CLAIM (IN THE CASE OF DATA BREACH LEADING TO SUCH CLAIM).

9.    MISCELLANEOUS

9.1. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

9.2. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

9.3. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right or preclude any further exercise thereof or the exercise of any other right, remedy, or power. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the party granting the waiver

9.4. No agency, partnership, joint venture, or employment is created as a result of this Agreement and each party does not have any authority of any kind to bind the other party in any respect whatsoever. 

9.5. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.

9.6. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

9.7. Company will maintain at its own expense during the term of this Agreement or any Order Form and for a period of one (1) year thereafter the insurance coverages described in herein, each of which must be issued by an insurance company having an AM Best rating of A- or better. Company will maintain deductibles that are appropriate in relation to the risks associated with its business and its financial strength and is responsible for all such deductibles and self-insured retentions, including, but not limited to commercial general liability, network risk, and technology errors and omissions, sufficient to cover all losses, claims and expenses for injuries or damage to any person, property or right arising out of Company’s activities in connection with this Agreement. Upon Customer’s written request, Company will provide Customer with a certificate evidencing such coverage. All coverages must be primary and noncontributory and must be written on an occurrence basis.

9.8. This Agreement shall be governed by the laws of the State of California without regard to its conflict of law provisions. The parties irrevocably consent to the exclusive jurisdiction of the state and federal courts located in the County of Los Angeles, California in any action, suit or proceeding arising out of or relating to this Agreement (including any Order Form).

9.9. Each party knowingly, voluntarily, intentionally, and irrevocably waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury of any dispute, claim, action, or proceeding of any kind, at law or at equity, arising under or relating to this Agreement, any Order Form, or the transactions contemplated hereby.