Popl Teams - Software as a Service Terms And Conditions
1. SERVICE AND SUPPORT
1.1. Subject to the terms and conditions in this terms of service agreement (“Agreement”), Popl Co (“Company”) will provide Customer the “Services” as defined in an ordering document executed by Company and Customer (“Order Form”).
1.2. Subject to this Agreement, Company will provide Customer with service levels and support services in accordance with the terms attached as exhibits to the 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 and any Software only in compliance with all applicable laws and regulations, including to the extent applicable, data protection and privacy laws such as the EU/UK General Data Protection Regulation, California Consumer Privacy Act (as amended by the California Privacy Rights Act), and laws governing electronic communications and marketing, including the U.S. Telephone Consumer Protection Act (TCPA) and the CAN-SPAM Act.
2.4. Customer hereby agrees to indemnify, defend, and hold harmless Company and its affiliates, officers, directors, employees, and agents 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 or Customer’s unlawful use of the Services or violation of applicable laws in connection with Customer Content.
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 that Company 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. Definitions: 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 Services. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Content”) provided that Customer will not provide to Company the following data of any third-party: HIPAA data, bank or credit card credentials, social security numbers, street address not used as a business address. 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. Exceptions: 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 Ownership: 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. Customer Ownership: Customer shall own and retain all right, title, and interest in and to Customer Content.
3.5. Company shall not sell, lease, rent or otherwise share for consideration Customer Content.
3.6. Company may 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. License: 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 Customer’s 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. Company may collect and use anonymized and aggregated data, telemetry data, and metadata arising from Customer's use of the Services ("Aggregated Data") to operate, maintain, and improve the Services, provided that Aggregated Data: (1) does not and cannot reasonably be used to identify Customer or any individual; and (2) shall not include the substantive content of Customer Content, including without limitation notes, tags, custom fields, or other data reflecting Customer's proprietary intelligence associated with contact records. Company retains all right, title, and interest in and to any Aggregated Data. Company shall not sell, lease, rent or otherwise share for consideration Aggregated Data.
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.
3.10. Marks: Customer grants Company a non-exclusive, royalty-free, worldwide, limited license to use and display Customer’s name and logo on Company’s public website and marketing materials to identify Customer as a user of the Services. Any other use of Customer’s name and logo, such as in a press release or case study, will be subject to Customer’s prior written consent. Company will comply with any written trademark usage guidelines provided by Customer and shall immediately cease any use of the Customer’s name and logo upon the expiration or termination of this Agreement.
4. PAYMENTS
4.1. Payment Terms: 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 must provide at least thirty (30) days written notice of any change, and may not change fee rate structure during any period in which Customer has pre-paid for that period.
4.2. Payment Disputes: 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. Late Payments: 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. Taxes: 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. Renewal: 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. Breach: 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. Termination for Cause: 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. Termination without Cause: Customer may terminate this Agreement for any reason without cause upon thirty (30) days’ notice to Company, however, such termination will not entitle Customer to any refund of fees prepaid by Customer to Company.
5.5. Data: Upon expiration or termination of this Agreement, Company shall, upon Customer's written request made within thirty (30) days of the termination date, provide Customer with a complete export of all Customer Content in Company’s possession or control in a commonly used, machine-readable format. Following such thirty (30) day period, Company shall delete all Customer Content in its possession or control, except to the extent retention is required by applicable law, in which case Section 3 confidentiality obligations shall continue to apply.
5.6. Survival: 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. IP Indemnification: Subject to the conditions in Section 7.5, Company shall indemnify, defend, and hold harmless Customer and its affiliates, officers, directors, employees, and agents from liability to third parties resulting from infringement by the Services of any valid patent or any copyright or misappropriation of any trade secret.
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 Services is not strictly in accordance with this Agreement.
7.3. Infringement Resolution: 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 Services 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 Services 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 Services.
7.4. General Indemnification: Subject to the conditions in Section 7.5, Company shall indemnify, defend, and hold harmless Customer and its affiliates, officers, directors, employees, and agents from liability to third party claims resulting from:
7.4.1. Company’s breach of the Data Protection Addendum, which is incorporated into this Agreement by reference,
7.4.2. Company’s breach of its confidentiality obligations under this Agreement (Section 3);
7.4.3. Bodily injury or death of a person, or damage to tangible personal property; or
7.4.4. Company's gross negligence or willful misconduct in connection with the provision of the Services.
7.5. Indemnification Conditions: Each party's indemnification obligations under this Agreement are conditioned on the indemnified party:
7.5.1. Promptly notifying the indemnifying party in writing of the claim;
7.5.2. Granting the indemnifying party sole control over the defense and settlement of the claim, provided that no settlement may be entered into that imposes any obligation or liability on the indemnified party without its prior written consent; and
7.5.3. Providing the indemnifying party reasonable cooperation and assistance at the indemnifying party's expense.
8. LIMITATION OF LIABILITY
8.1. Scope: The limitations and exclusions in this Section 8 apply to all claims arising out of or related to this Agreement, whether based in contract, tort (including negligence), strict liability, or any other legal theory, and apply to each party’s affiliates, officers, employees, agents, contractors, and suppliers.
8.2. Exclusions of Consequential Damages: Except as expressly set forth in this Section 8, neither party shall be liable for any indirect, incidental, consequential, special, exemplary, or punitive damages, or for any loss of business, revenue, profits, data (including loss, inaccuracy, or corruption of data), interruption of use, or cost of procurement of substitute goods or services, arising out of or related to this Agreement, regardless of the theory of liability and whether or not such party has been advised of the possibility of such damages.
8.3. General Liability Limit: Except as expressly set forth in this Section 8, each party’s total aggregate liability arising out of or related to this Agreement shall not exceed two (2) times the total fees paid by Customer to Company for the Services provided during the twelve (12) months immediately preceding the event giving rise to the claim.
8.4. Indemnification Liability: Each party’s aggregate liability arising from its indemnification obligations under this Agreement shall be limited to the greater of (i) ten times (10x) the total amount paid by Customer to Company under this Agreement during the twelve (12) months immediately preceding the event giving rise to the claim, or (ii) $100,000 USD.
8.5. Limitation Carve-Outs: The limitations and exclusions in this Section 8 shall not apply to:
8.5.1. Either party’s gross negligence or willful misconduct;
8.5.2. Bodily injury or death of a person, or damage to tangible personal property; or
8.5.3. Company’s obligation to maintain insurance pursuant to this Agreement (Section 9).
8.6. Data Protection and Security Super Cap: For claims arising from a data breach or violation of applicable data protection laws, Company's liability shall be limited to the per-claim limit of Company's cyber insurance coverage. Company shall maintain cyber liability insurance with coverage of at least $5,000,000 per occurrence (in accordance with Section 9).
9. INSURANCE
9.1. During the Term of this Agreement and any applicable Order Form, and for one (1) year thereafter with respect to any claims-made policies, Company shall maintain, at its own expense, the insurance coverages set forth below. All insurance shall be issued by insurers rated A- or better by A.M. Best. Company shall be responsible for all deductibles and self-insured retentions, which shall be commercially reasonable in light of Company’s business and risk profile. The insurance maintained by Company shall be primary and non-contributory to any insurance maintained by Customer.
9.1.1. Commercial General Liability Insurance, written on an occurrence basis, including coverage for bodily injury, property damage, personal and advertising injury, and products/completed operations, with limits of not less than: $1,000,000 per occurrence, $2,000,000 general aggregate, and $2,000,000 products/completed operations aggregate
9.1.2. Umbrella / Excess Liability Insurance, written on an occurrence basis, providing coverage in excess of the Commercial General Liability policy, with limits of not less than $10,000,000 per occurrence and in the aggregate.
9.1.3. Management Liability Insurance, including Directors & Officers Liability, Employment Practices Liability, and Fiduciary Liability, with limits of not less than $1,000,000 per claim, subject to a $3,000,000 aggregate limit.
9.1.4. Technology Errors & Omissions and Cyber Liability Insurance, covering liability arising from technology services, data breaches, network security failures, privacy violations, and errors or omissions, with limits of not less than $5,000,000 per claim and in the aggregate.
9.2. Evidence of Insurance. Upon written request, Company shall provide Customer with a certificate of insurance evidencing the coverage required under this Section.
10. MISCELLANEOUS
10.1. Notices: 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.
10.2. Relationship: 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.
10.3. Assignment: 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.
10.4. Jurisdiction: This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of law provisions. Each party irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts located in the State of Delaware for the resolution of any dispute arising out of or relating to this Agreement.
10.5. Legal Costs: In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
10.6. Disputes: 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.
10.7. Force Majeure: Neither party shall be liable for any delay or failure to perform its obligations under this Agreement to the extent caused by circumstances beyond such party's reasonable control, including acts of God, natural disasters, pandemic, war, terrorism, governmental action, or failures of third-party internet infrastructure ("Force Majeure Event").
10.8. Enforceability: 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.
10.9. Completeness: 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.