EXITOWEB, INC.
TERMS OF SERVICE
Last Modified: February 20, 2022
This is a contract between you (the Customer) and us (ExitoWeb). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. By using the Subscription Service or receiving the Consulting Services, you are agreeing to these terms. We periodically update these terms. If you have an active ExitoWeb subscription, we will let you know when we do via an email notification.
A. DEFINITIONS
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control of a party to this Agreement. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means these Terms of Service and all materials referred or linked to in here.
“Billing Period” means the period for which you agree to prepay fees under an Order, which will be the same as, or shorter than, the Subscription Term as specified in the Order. For example, if you subscribe to the Subscription Service for a one (1) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
“CCPA” means California Civil Code Sec. 1798.100 et seq. (also known as the California Consumer Privacy Act of 2018).
“Communication Services” means third-party forums, online communities, blogs, personal web pages, calendars, and/or other social media communication facilities (such as Facebook, Twitter and LinkedIn) linked to or from the Subscription Service that enable you to communicate with the public or with a private group.
“Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential. Confidential Information shall include all information concerning: (a) Disclosing Party’s customers and potential customers, past, present or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research, development, and the terms and conditions of this Agreement. Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. Subject to the foregoing exclusions, Customer Data shall be Confidential Information under this Agreement regardless of whether or not it is designated as confidential.
“Contact” means a single individual (other than a User) whose Contact Information is stored by you in the Subscription Service.
“Contact Information” means the name, email address, phone number, online username(s), telephone number, and similar information submitted by visitors to your landing pages on the Subscription Service or uploaded by you to the Subscription Service.
“Consulting Services” means the professional services provided to you by us, which may include training services, installation, integration or other consulting services.
“Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.
“Customer Data” means all information that you submit or collect via the Subscription Service. Customer Data does not include ExitoWeb Content.
“Customer Materials” means all materials that you provide or post, upload, input or submit for public display through the Subscription Service.
“Data Protection Laws” means all applicable worldwide legislation relating to data protection and privacy which applies to the respective party in the role of Processing Personal Data in question, including without limitation the CCPA as amended, repealed, consolidated or replaced from time to time.
“Data Subject” means the individual to whom Personal Data relates.
“Email Send Limit” means the number of emails that you may send in any given calendar month for our Pro Subscriptions and Basic Subscriptions, as set forth in our Product and Services Catalog.
“Enrichment Data” means the information we make available to you as part of the Subscription Service obtained from public or third party sources.
“ExitoWeb”, “we”, “us” or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section.
“ExitoWeb Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service or Consulting Services, including Enrichment Data.
“Free Services” means the Subscription Service or other products or features made available by us to you on an unpaid trial or free basis.
“Instructions” means the written, documented instructions issued by a Controller to a Processor, and directing the same to perform a specific or general action with regard to Personal Data (including, but not limited to, depersonalizing, blocking, deletion, making available).
“Maximum Contacts” means the maximum number of Contacts you are permitted to use with the Subscription Service as identified in your Order, plus any Contacts added as part of an upgrade.
“Order” means the ExitoWeb-approved online subscription process by which you agree to subscribe to the Subscription Service and/or purchase Consulting Services. Most Orders are completed through our online payment process. The Order may be referred to as a “Statement of Work” if you are purchasing only Consulting Services.
“Paid Users” means those types of Users (defined below) for which we charge you fees as set forth in our Product and Services Catalog.
“Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Customer Data and is protected similarly as personal data or personally identifiable information under applicable Data Protection Law.
“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed by ExitoWeb in connection with the provision of the Subscription Services. “Personal Data Breach” shall not include unsuccessful attempts or activities that do not compromise the security of Personal Data, including unsuccessful log-in attempts, pings, port scans, denial of service attacks, and other network attacks on firewalls or networked systems.
“Product and Services Catalog” means ExitoWeb’s Product and Services Catalog available at www.escala.com/pricing, as updated by us from time-to- time.
“Processing” means any operation or set of operations which is performed on Personal Data, encompassing the collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction or erasure of Personal Data. The terms “Process”, “Processes” and “Processed” will be construed accordingly.
“Processor” means a natural or legal person, public authority, agency or other body which Processes Personal Data on behalf of the Controller.
“Sensitive Information” means credit or debit card numbers; personal financial account numbers or wire instructions; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords or log-in credentials; racial or ethnic origin; physical or mental health condition or information; or other employment or health information, including any information subject to the Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information.
“Subscription Fee” means the amount you pay for the Subscription Service.
“Subscription Service” means all of our web-based inbound marketing and sales applications, tools and platforms that you have subscribed via an Order or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via www.escala.com or another designated URL, or any ancillary products and services, including website hosting, that we provide to you.
“Subscription Term” means the initial term of your subscription to the applicable Subscription Service, as specified on your Order, and each subsequent renewal term (if any). For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.
“Third-Party Products” means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Service. These products and services include non-ExitoWeb apps available from, for example, our integrations products page, partner directory, template marketplace, and links made available through the Subscription Service.
“Third-Party Sites” means third-party websites linked to from within the Subscription Service, including Communications Services.
“Total Committed Subscription Value” means the aggregate amount of Subscription Fees paid or payable to us during your then-current Subscription Term(s) for all of your ExitoWeb accounts, but this amount excludes fees for renewals, Consulting Services and applicable taxes.
“Users” means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.
“You”, “your” or “Customer” means the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable account record, billing statement, online subscription process, or Order as the customer.
B. GENERAL COMMERCIAL TERMS
1. Access. During the Subscription Term, we will provide you access to use the Subscription Service as described in this Agreement and the applicable Order. We may also provide you access to use our Free Services at any time by activating them in your ExitoWeb account. We might provide some or all elements of the Subscription Service through third-party service providers. Your Affiliates may access and use the Subscription Service or receive the Consulting Services purchased under your Order; provided that, all such access, use and receipt by your Affiliates is subject to and in compliance with the Agreement and you shall at all times remain liable for Affiliates’ compliance with the Agreement.
2. Additional Features. You may subscribe to additional features of the Subscription Service by placing an additional Order or activating the additional features from within your ExitoWeb account (if this option is made available by us). This Agreement will apply to all additional Order(s) and all additional features that you activate from within your ExitoWeb account.
3. Service Uptime Commitment. We will use commercially reasonable efforts to meet a Service Uptime of 99.95% for our Subscription Service in a given calendar month. All availability calculations will be based on our system records. Notwithstanding anything to the contrary in this Agreement, as Customer’s sole and exclusive remedy for failure to meet availability or support commitments, in the event there are two (2) or more consecutive calendar months during which the Service Uptime falls below 99.95%, Customer will be entitled to receive a credit equal to the pro-rated amount of fees applicable to the downtime as measured within two (2) or more consecutive calendar months during which the Service Uptime fell below 99.95%, which credit shall be applied against an invoice or charge for the following renewal Subscription Term, provided Customer requests such credit within twenty (20) days of the end of the relevant calendar month. Notwithstanding anything to the contrary in the Agreement or this section, this ‘Service Uptime Commitment’ section does not apply to our Free Services. For the purposes of this section, the following definitions shall apply:
“Excluded Downtime” means the following: (i) unavailability caused by circumstances beyond our reasonable control, including, without limitation, act of God, acts of government, emergencies, natural disasters, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), or any other force majeure event or factors; (ii) any problems resulting from Customer’s combining or merging the Subscription Service with any hardware or software not supplied by us or not identified by us in writing as compatible with the Subscription Service; (iii) interruptions or delays in providing the service resulting from telecommunications or Internet service provider failures outside of our datacenter as measured by our third party website availability monitoring provider; and (iv) any interruption or unavailability resulting from the misuse, improper use, alteration, or damage of the Subscription Service.
“Priority 1” means a critical full outage/severe issue that constitutes a catastrophic problem that causes complete inability to use the Subscription Service, excluding Free Services, across a significant portion of the production environment (e.g. crash or hang), resulting in production downtime aThird-Party Sites and Third-Party Productsnd where there is no workaround or solution to the problem.
“Service Uptime” means (i) total hours in calendar month minus unscheduled maintenance which causes unavailability, Priority 1 issue durations, scheduled maintenance, and Excluded Downtime divided by (ii) total hours in calendar month minus scheduled maintenance and Excluded Downtime multiplied by (iii) 100.
4. Consulting Services. You may purchase Consulting Services by placing an Order with us. Unless we otherwise agree, the Consulting Services we provide are described in the Product and Services Catalog. Fees for these Consulting Services are in addition to your Subscription Fee. If you purchase Consulting Services that recur, they will be considered part of your subscription and will renew in accordance with your subscription. All Consulting Services are performed remotely, unless you and we otherwise agree. For Consulting Services performed on-site, you will reimburse us our reasonable costs for all expenses incurred in connection with the Consulting Services. Any invoices or other requests for reimbursements will be due and payable within thirty (30) days of the date of the invoice. If there are a specific number of hours included in the Consulting Services purchased, those hours will expire as indicated in the applicable description, which expiration period will commence upon purchase (the “Expiration Period”). If there are deliverables included in the Consulting Services purchased, it is estimated that those deliverables will be completed within the time period indicated as the delivery period in the applicable description, which delivery period will commence upon purchase (the “Delivery Period”). If there is no Expiration Period or Delivery Period indicated, then it will be one hundred and eighty (180) days from purchase. If the Consulting Services provided are not complete at the end of the Delivery Period due to your failure to make the necessary resources available to us or to perform your obligations, such Consulting Services will be deemed to be complete at the end of the Delivery Period. If the Consulting Services provided are not complete at the end of the Delivery Period due to our failure to make the necessary resources available to you or to perform our obligations, the Delivery Period will be extended to allow us to complete such Consulting Services. We might provide some or all elements of the Consulting Services through third party service providers. Consulting Services are non-cancellable and all fees for Consulting Services are non-refundable.
5. Fees and Payments
(a) Subscription Fees. The Subscription Fee will remain fixed during the initial term of your subscription unless you: (i) exceed your Maximum Contacts, Email Send Limit, User or other applicable limits (see the ‘Limits’ section below), (ii) upgrade products or base packages, (iii) subscribe to additional features or products, including additional Contacts, or (iv) unless otherwise agreed to in the Order. We will monitor or audit remotely the number of Contacts in the Subscription Service and the number of emails that you send on the Subscription Service. For our products that have applicable User limits, you will be charged fees associated with all Paid Users. Your Subscription Fee will not decrease, even if there is a subsequent reduction in the number of Contacts, emails sent or the number of assigned Paid Users. You can learn more about how your fees may be otherwise adjusted in the remainder of this ‘Fees and Payment’ section below.
(b) Fee Adjustments in Next Billing Period. We determine the Contact tier for the next Billing Period by reviewing the number of Contacts in your account. If the number of Contacts in your account exceed your Maximum Contacts when we complete this review, then your Subscription Fee will increase at the beginning of the next Billing Period up to the tier price which corresponds with the reviewed number of Contacts. Tier prices are as set forth in our Product and Services Catalog. We allow you to reasonably manage the number of Contacts during the course of a Billing Period and will not count Contacts removed before our review, unless these Contacts are temporarily removed to avoid a fee increase. If Contacts are temporarily removed to avoid a fee increase, we may consider the maximum number of Contacts from the reviewed Billing Period for the purposes of determining your Contact tier. This review and upgrade process will continue for each Billing Period during the Subscription Term.
(c) Fee Adjustments During a Billing Period. he Subscription Fee will increase during the course of a Billing Period if you exceed your Email Send Limit in a Billing Period. In this case, the Subscription Fee will increase to the tier price which corresponds with your maximum monthly email sends from the current Billing Period. You may, however, opt out of automatic Subscription Fee increases. If you opt out of automatic Subscription Fee increases and reach your Email Send Limit during a Billing Period, you will not be able to send any more emails until the start of the next calendar month, including emails pre-scheduled to go out after reaching the Email Send Limit. You may increase your Email Send Limit by purchasing additional Contacts, in which case your fee will increase during the course of a Billing Period. The Subscription Fee will increase during a Billing Period up to the corresponding base package and tier price (as set forth in our Product and Services Catalog) if you exceed the subdomains limit, add Paid Users, exceed other applicable limits (except as set forth in the ‘Fee Adjustments in Next Billing Period’ section), change or add products, or subscribe to additional features for use during the Billing Period. We may choose to decrease your fees upon written notice to you.
(d) Fee Adjustments at Renewal. Upon renewal, we may increase your fees up to our then- current list price set out in our Product and Services Catalog. If this increase applies to you, we will notify you at least fifteen (15) days in advance of your renewal and the increased fees will apply at the start of the next renewal term. If you do not agree to this increase, either party can choose to terminate your subscription at the end of your then-current term by giving the notice required in the ‘Notice of Non-Renewal’ section below.
(e) Payment by credit or debit card. By paying via credit or debit card, you authorize us to charge your credit or debit card or bank account for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
(f) Payment against invoice. If you are paying by invoice, we will invoice you no more than forty-five (45) days before the beginning of the Subscription Term and each subsequent Billing Period, and other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form.
(g) Payment Information. You will keep your contact information, billing information and credit or debit card information (where applicable) up to date. Changes may be made on your Billing Page within your ExitoWeb account. All payment obligations are non-cancelable, and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term.
(h) Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you do not provide us with a VAT registration number prior to your transaction being processed, we will not issue refunds or credits for any VAT that was charged. If you are subject to Goods and Services Tax, all fees are exclusive of Goods and Services Tax. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
6. Use and Limitations of Use
(a) Reporting Suspected Violations. We encourage recipients of email messages sent using any product, service or website provided by ExitoWeb to report suspected violations of this Section 6 to us by forwarding a copy of the received email with full headers to compliance@escala.com. We have a policy to investigate all of these reports and to respond in the way we consider appropriate. If you know of or suspect a violation of this Section 6, you will promptly notify us in writing of the known or suspected violation of this Section 6.
(b) Prohibited Email Actions.
- You may not use the Subscription Service to send spam, which can be in the form of bulk email or one to one commercial emails. Bulk email is spam when the recipient has not granted verifiable permission for the message to be sent. Bulk means that the message is sent as part of a larger collection of messages that have substantively similar content. One-to-one commercial emails are spam when they violate CAN-SPAM. One-to-one commercial emails are also considered Spam if the data processed for purposes of sending that email is in scope of the General Data Protection Regulation (“GDPR”) and you fail to provide notice to individuals and establish a lawful basis of processing. You may not use the Subscription Service in any way (directly or indirectly) to send, transmit, handle, distribute or deliver: (a) spam in violation of the CAN-SPAM Act (referenced below) or any other law; (b) email to an address obtained via Internet harvesting methods or any surreptitious methods (e.g., scraping or harvesting); (c) email to an address that is incomplete, inaccurate and/or not updated for all applicable opt-out notifications, using best efforts and best practices in the industry, (d) commercial electronic messages in violation of Canada’s Anti-Spam Legislation (referenced below), or (e) in violation of GDPR.
- You may not use any misleading or false names, addresses, email address, or subject line. Email sent, or caused to be sent to or through the Subscription Service may not: (a) use or contain invalid or forged headers; (b) use or contain invalid or non-existent domain names; (c) employ any technique to otherwise misrepresent, hide or obscure any information in identifying the point of origin or the transmission path; (d) use other means of deceptive addressing; (e) use a third party’s internet domain name without their consent, or be relayed from or through a third party’s equipment without the third party’s permission; (f) contain false or misleading information in the subject line or otherwise contain false or misleading content; or (g) use our trademark(s), tagline(s), or logo(s) without our prior written consent and only then pursuant to our trademark usage guidelines.
- You may not email purchase lists. You are prohibited from using the Subscription Service to email: (a) purchased, rented, or borrowed lists, and (b) lists that are likely to result in an excessive number of unsubscribe requests or Spam complaints or notices, as determined by acceptable industry practices.
(c) Email Opt-out Requirements. You warrant that each email you send or is sent for you using the Subscription Service will contain: (a) header information that is not false or misleading; and (b) an advisement that the recipient may unsubscribe, opt-out or otherwise demand that use of its information for unsolicited, impermissible and/or inappropriate communication(s) as described herein be stopped (and how the recipient can notify you that it wants to unsubscribe, opt-out, or stop this use of its information). These requirements may not apply if the email sent is a transactional email and these requirements are not otherwise required by law. You warrant that you will promptly comply with all opt-out, unsubscribe, “do not call” and “do not send” requests.
(d) No Disruption. You agree not to use the Subscription Service in a way that impacts the normal operation, privacy, integrity or security of another’s property. Another’s property includes another’s account(s), domain name(s), URL(s), website(s), network(s), system(s), facilities, equipment, data, other information, or business operations. You also agree not to use the Subscription Service to gain unauthorized access to, use, monitor, make an unauthorized reference to, another’s property, unless you have the appropriate express prior consent to do so. Examples of prohibited actions include (without limitation): hacking, spoofing, denial of service, mailbombing and/or sending any email that contains or transmits any virus or propagating worm(s), or any malware, whether spyware, adware or other such file or program. You also agree not to use the Subscription Service in a way that causes or may cause any ExitoWeb IP addresses, ExitoWeb domains, or ExitoWeb customer domains to be blacklisted. These restrictions apply regardless of your intent and whether or not you act intentionally or unintentionally.
(e) No Abusive Behavior. You may not (directly or indirectly) use the Subscription Service with content, or in a manner that: (a) is threatening, abusive, harassing, stalking, or defamatory; (b) is deceptive, false, misleading or fraudulent; (c) is invasive of another’s privacy or otherwise violates another’s legal rights (such as rights of privacy and publicity); (d) contains vulgar, obscene, indecent or unlawful material; (e) infringes a third party’s intellectual property right(s); (f) publishes, posts, uploads, or otherwise distributes any software, music, videos, or other material protected by intellectual property laws (or by rights of privacy or publicity) unless you have all necessary rights and consents to do so; (g) uploads files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another person’s computer; (h) downloads any file that you know, or reasonably should know, cannot be legally distributed in that way; (i) falsifies or deletes any author attributions, legal or proprietary designations, labels of the origin or source of software, or other material contained in a file that is uploaded; (j) restricts or inhibits any other user of the Subscription Service from using and enjoying our website and/or the Subscription Service; (k) harvests or otherwise collects information about others, including e-mail addresses, without their consent; (l) violates the usage standards or rules of an entity affected by your use, including without limitation any ISP, ESP, or news or user group (and including by way of example and not limitation circumventing or exceeding equipment use rights and restrictions and/or location and path identification detail); (m) is legally actionable between private parties; (n) is not a good faith use of the service, such as uploading Contacts in excess of your Contact tier, emailing those Contacts and then purging them shortly thereafter; (o) is in violation of any applicable local, state, national or international law or regulation, including all export laws and regulations and without limitation the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act) (15 U.S.C. § 7701 et seq.), the U.S Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227), the Do-Not-Call Implementation Act of 2003 (15 U.S.C. § 6152 et seq.; originally codified at § 6101 note), the General Data Protection Regulation (2016/679), the Directive 2000/31/EC of the European Parliament and Council of 8 June 2000, on certain legal aspects of information society services, in particular, electronic commerce in the Internal Market (‘Directive on Electronic Commerce’), along with the Directive 2002/58/EC of the European Parliament and Council of 12 July 2002, concerning the processing of personal data and the protection of privacy in the electronic communications sector (‘Directive on Privacy and Electronic Communications’), regulations promulgated by the U.S. Securities Exchange Commission, any rules of national or other securities exchange, including without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, the Personal Information Protection and Electronic Documents Act (PIPEDA) (S.C. 2000, c. 5), Canada’s Anti-Spam Legislation (CASL) (S.C. 2010, c. 23), Japan’s Act on Regulation of Transmission of Specified Electronic Mail (Act No. 26 of April 17, 2002) and any regulations having the force of law or laws in force in your or your email recipient’s country of residence; (p) encourages, promotes, facilitates or instructs others to engage in illegal activity; and/or (q) promotes, encourages, or facilitates: hate speech, violence, discrimination based on race, color, religion or creed, national origin or ancestry, sex, age, physical or mental disability, veteran status, genetic information, and/ or citizenship.
(f) Prohibited Use. You will use the Subscription Service for your internal business purposes and will not: (a) willfully tamper with the security of the Subscription Service or tamper with our customer accounts; (b) access data on the Subscription Service not intended for you; (c) log into a server or account on the Subscription Service that you are not authorized to access; (d) attempt to probe, scan or test the vulnerability of any of the Subscription Service or to breach the security or authentication measures without proper authorization; (e) willfully render any part of the Subscription Service unusable; (f) lease, distribute, license, sell or otherwise commercially exploit the Subscription Service or make the Subscription Service available to a third party other than as contemplated in your subscription to the Subscription Service; (g) use the Subscription Service for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (h) provide to third parties any evaluation version of the Subscription Service without our prior written consent.
(g) Restricted Industries. Some industries have higher than average abuse complaints, which can directly impact our ability to provide the Subscription Service to other customers. To protect our customers, we reserve the right to discontinue your use of the Subscription Service if you are in one of these industries. Some examples include: (a) cryptocurrency; (b) escort and dating services; (c) pharmaceutical products; (d) work from home, make money online, and lead generating opportunities; (e) gambling services or products; (f) multi-level marketing or affiliate marketing; (g) list brokers or list rental services (h) selling ‘Likes’ or followers for a social media platform.
(h) Trademark Use. Unless you have our express prior written permission, you may not use any name, logo, tagline or other mark of ours or the Subscription Service, or any identifier or tag generated by the Subscription Service, including without limitation: (a) as a hypertext link to any website or other location (except as provided for or enabled expressly by us); or (b) to imply identification with us as an employee, contractor, agent or other similar representative capacity. You also agree not to remove or alter any of these items as we may have provided or enabled.
(i) General Terms. You acknowledge we may disclose information regarding your use of any of the Subscription Service to satisfy any law, regulation, government request, court order, subpoena or other legal process. If we make this type of required disclosure we will notify you, unless we are required to keep the disclosure confidential. We are not obligated to, but may choose to, remove any prohibited materials and deny access to any person who violates this Section 6. We further reserve all other rights.
(j) Unauthorized Use. You will not (i) use or launch any automated system, including, “robots,” “spiders,” or “offline readers,” that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (ii) use the Subscription Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party’s use of the Subscription Service; (iii) attempt to gain unauthorized access to the Subscription Service; (iv) access the Subscription Service other than through our interface; or (v) use the Subscription Service for any purpose or in any manner that is unlawful or prohibited by this Agreement. In addition, you may not use the Subscription Service if you are legally prohibited from receiving or using the Subscription Service under the laws of the country in which you are resident or from which you access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA) or the Federal Information Security Management Act (FISMA), so you may not use the Subscription Service where your communications would be subject to such laws. You may not use the Subscription Service in a way that would violate the Gramm-Leach-Bliley Act (GLBA). Nothing contained herein shall limit the usage restrictions specific to Sensitive Information under the Agreement. You will notify us right away of any unauthorized use of your Users’ identifications and passwords or your account by contacting us at compliance@escala.com.
(k) No Sensitive Information. YOU ACKNOWLEDGE THAT THE SUBSCRIPTION SERVICES HAVE NOT BEEN DESIGNED TO PROCESS OR MANAGE SENSITIVE INFORMATION AND ACCORDINGLY YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE AND SPECIFICALLY DISCLAIM ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT, PROCESS OR MANAGE SENSITIVE INFORMATION.
(l) Use of Communication Services. You agree to use Communication Services only in compliance with any terms of use specified by each Communication Service. We do not control the content, messages or information found in the Communication Services. We will not have any liability with regards to the Communication Services and any actions resulting from your use of the Communication Services.
(m) Third-Party Sites and Third-Party Products. Third-Party Sites and Third-Party Products are not under our control. Third-Party Sites and Third-Party Products are provided to you only as a convenience, and the availability of any Third-Party Site or Third-Party Product does not mean we endorse, support or warrant the Third-Party Site or Third-Party Product.
7. Subscription Term, Termination, Suspension.
(a) Term and Renewal. Your initial subscription period will be specified in your Order, and, unless otherwise specified in your Order, your subscription will automatically renew for the shorter of the subscription period, or one (1) year. To prevent renewal of the subscription, the required notice must be provided within the timeframe as specified in the ‘Subscription Types’ section below. If you use our Free Services, we will make the Free Services available to you free of charge until earlier of (a) the date on which your free subscription is terminated or (b) the start date of your paid subscription.
(b) Early Cancellation. You may choose to cancel your subscription early at your convenience provided that, we will not provide any refunds of prepaid fees or unused Subscription Fees, and you will promptly pay all unpaid fees due through the end of the Subscription Term.
(c) Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Subscription Services: (i) upon fifteen (15) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause immediately if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers, including pursuant to Section 6. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
(d) Suspension for Prohibited Acts. We may suspend any User’s access to any or all Subscription Services without notice for: (i) use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) use of the ExitoWeb email send service that results in excessive hard bounces, spam complaints via feedback loops, direct spam complaints (to our abuse desk), or requests for removal from a mailing list by recipients, or (iii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity. We may, without notice, review and delete any Customer Data or Customer Materials that we determine in good faith violate these terms, provided that, we have no duty to prescreen, control, monitor or edit your Customer Data or Customer Materials.
(e) Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Services ten (10) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.
(f) Suspension for Present Harm. If your website, or use of, the Subscription Service: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Subscription Service or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service. We will try to limit the suspension to the affected portion of the Subscription Service and promptly resolve the issues causing the suspension of the Subscription Service. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
(g) Suspension and Termination of Free Services. We may suspend, limit, or terminate the Free Services for any reason at any time without notice. We may terminate your subscription to the Free Services due to your inactivity.
(h) Effect of Termination or Expiration. You may request the deletion of your ExitoWeb account after expiration or termination of your subscription by sending a request to support@escala.com. You will continue to be subject to this Agreement for as long as you have access to an ExitoWeb account. Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service and ExitoWeb Content. We may or may not provide you the opportunity to retrieve Customer Data after termination or expiration, depending on the type of applicable subscription as specified in the ‘Retrieval of Customer Data’ section below. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
C. SUBSCRIPTION TYPE TERMS
1. Subscription Types. We offer two main types of subscriptions: (1) Pro Subscriptions, and (2) Basic Subscriptions. There are different terms that apply depending on the subscription you purchase, which are as set forth in the Product and Services Catalog.
2. Limits. The limits that apply to you will be specified in your Order, this Agreement or in our Product and Services Catalog, and for our Free Services, these limits may also be designated only from within the product itself. You must be 18 years of age or older to use the Subscription Service. For our Pro Subscriptions and Basic Subscriptions, if we make modifications to the limits set forth in the Product and Services Catalog that would negatively impact you, these modifications will not apply to you until the start of your next renewal Subscription Term. On renewal, the current product usage limits in our Product and Services Catalog will apply to your subscription, unless you and we otherwise agree. For our Free Services, we may change the limits that apply to your use at any time in our sole discretion without notice to you, regardless of whether or not these are used in conjunction with other products or services for which you pay us a fee.
3. Modifications. We modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience. For our Pro Subscriptions and Basic Subscriptions, we will not make changes to the Subscription Service that materially reduce the functionality provided to you during the Subscription Term. For our Free Services, we may make changes that materially reduce the functionality provided to you during the Subscription Term.
4. Customer Support. We accept email support questions for the Subscription Service twenty-four (24) hours per day and seven (7) days per week. Email questions can be submitted to support@escala.com. We attempt to respond to email support questions within one (1) business day. We do not promise or guarantee any specific response time. We may limit or deny your access to support if we determine, in our reasonable discretion, that you are acting, or have acted, in a way that results or has resulted in misuse of support or abuse of ExitoWeb representatives. Issues resulting from your use of API’s or your modifications to code in the Subscription Service may be outside the scope of support.
5. Notice of Non-Renewal. Your subscription will automatically renew according to the ‘Term and Renewal’ section below. Unless otherwise specified in your Order, to prevent renewal of a Pro Subscription or Basic Subscription, you or we must give written notice of non-renewal and this written notice before the next renewal period begins. If you decide not to renew, you may send a non-renewal notice to support@escala.com. To prevent continuation of the Subscription Term of a Free Service, you may send a non-renewal notice to support@escala.com.
6. Retrieval of Customer Data. For Pro Subscriptions and Basic Subscriptions, if you make a written request within thirty (30) days after termination or expiration of your subscription, we will provide you with temporary access to the Subscription Service to retrieve, or we will provide you with copies of, all Customer Data then in our possession or control. If we provide you with temporary access to the account, we may charge a re-activation fee. Thirty (30) days after termination or expiration of your Subscription, we will have no obligation to maintain or provide you the Customer Data. We will delete all Customer Data in our systems or otherwise in our control unless (i) we are legally prohibited from doing so or (ii) save as otherwise set out in this Agreement. For our Free Services, we will not provide you with any access to Customer Data after termination or expiration of your subscription.
D. GENERAL LEGAL TERMS
1. Customer Data
(a) Compliance with Laws. In your use of the Subscription Service, you shall be responsible for complying with all requirements that apply under applicable Data Protection Laws with respect to its Processing of Personal Data and the Instructions you issue to us. In particular, you agree that you shall be solely responsible for: (i) the accuracy, quality, and legality of Customer Data and the means by which you acquire Personal Data; (ii) complying with all necessary transparency and lawfulness requirements under applicable Data Protection Laws for the collection and use of the Personal Data, including obtaining any necessary consents and authorizations (particularly for use by you for marketing purposes); (iii) ensuring you have the right to transfer to us, or provide us access to, the Personal Data for Processing in accordance with the terms of the Agreement; (iv) ensuring your Instructions to us regarding the Processing of Personal Data complies with applicable laws, including Data Protection Laws; and (v) complying with all laws (including Data Protection Laws) applicable to any emails or other content created, sent or managed through the Subscription Services, including those relating to obtaining consents (where required) to send emails, the content of the emails and its email deployment practices. You shall notify us without undue delay if you are not able to comply with your responsibilities under this sub-section (a) or applicable Data Protection Laws.
(b) Controller Instructions. We will not use, or allow anyone else to use, Customer Data to contact any individual or company except as you direct or otherwise permit. We will use Customer Data only in order to provide the Subscription Service and Consulting Services to you and only as permitted by applicable law, this Agreement, and our Privacy Policy. You agree that your use of the Subscription Service in accordance with this Agreement constitutes your complete and final Instructions to us in relation to the Processing of Personal Data, and additional instructions outside the scope of the Instructions shall require prior written agreement between you and us. We will only Process Personal Data as otherwise agreed within the scope of your lawful Instructions, except where and to the extent otherwise required by applicable law. We are not responsible for compliance with any Data Protection Laws applicable to your or your industry that are not generally applicable to us.
(c) Conflicts of Law. If we become aware that we cannot Process Personal Data in accordance with your Instructions due to a legal requirement under any applicable law, we will (i) promptly notify you of that legal requirement to the extent permitted by the applicable law; and (ii) where necessary, cease all Processing (other than merely storing and maintaining the security of the affected Personal Data) until such time as you issues new Instructions with which we are able to comply. If this provision is invoked, we will not be liable to you for any failure to perform the applicable Subscription Services until such time as you issues new lawful Instructions with regard to the Processing.
(d) Data Practices. We may monitor use of the Subscription Service by all of our customers and use the information gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify you. For clarity any data provided to other customers or third parties will only be in an aggregated and anonymous manner.
(e) Personal Data Breaches. We will notify you without undue delay after we become aware of any Personal Data Breach and provide timely information relating to the Personal Data Breach as it becomes known. We will promptly provide you with such reasonable assistance as necessary to enable you to notify competent authorities and/or Data Subjects of the occurrence of a Personal Data Breach in accordance with applicable Data Protection Laws.
2. ExitoWeb’s Proprietary Rights. This is an Agreement for access to and use of the Subscription Service, and you are not granted a license to any software by this Agreement. The Subscription Service and Consulting Services are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the ExitoWeb Content, the Subscription Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us. You may not use any of our trademarks without our prior written permission. If we make Enrichment Data available to you, then you may only use that Enrichment Data in connection with your use of the Subscription Service. We may change what Enrichment Data we provide or discontinue providing Enrichment Data at any time with or without notice to you. We encourage all customers to comment on the Subscription Service or Consulting Services, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service or Consulting Services, without payment or attribution to you.
3. Customer’s Proprietary Rights. As between the parties, you own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Subscription Service and Consulting Services to you and as otherwise permitted by this Agreement.
4. Confidentiality. The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party (except those third party service providers used by us to provide some or all elements of the Subscription Service or Consulting Services), and (iv) limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process; provided, however, that (i) Receiving Party will provide Disclosing Party with prompt notice of any request that it disclose Confidential Information, sufficient to allow Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, Receiving Party shall disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate; and (ii) in no event shall Receiving Party disclose Confidential Information to a party other than a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure.
5. Publicity. You grant us the right to add your name and company logo to our customer list and website. To object to this use, please indicate so by contacting us at compliance@escala.com.
6. Indemnification. You will indemnify, defend and hold us and our Affiliates harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us or our Affiliates to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Subscription Service by you or your Affiliates, (b) your or your Affiliates’ noncompliance with or breach of this Agreement, (c) your or your Affiliates’ use of Third-Party Products, or (d) the unauthorized use of the Subscription Service by any other person using your User information. We will notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
7. Disclaimers; Limitations of Liability
(a) Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SUBSCRIPTION SERVICE, DATA MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE, EXITOWEB CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE, EXITOWEB CONTENT AND CONSULTING SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SUBSCRIPTION SERVICE AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
(b) No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY; PROVIDED THAT, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES.
(c) Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY OR ITS AFFILIATES IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES WILL BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE FOR THE SUBSCRIPTION SERVICE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.
(d) Third Party Products. WE AND OUR AFFILIATES DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
(e) Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.
(f) Disclaimer of Performance Results. Every online business is different, employing different strategic approaches and organizational structures, and offering different products and services. Therefore, individual results will vary from user to user. YOUR BUSINESS’ INDIVIDUAL RESULTS WILL VARY DEPENDING UPON A VARIETY OF FACTORS UNIQUE TO YOUR BUSINESS, INCLUDING BUT NOT LIMITED TO YOUR CONTENT, BUSINESS MODEL, AND PRODUCT AND SERVICE OFFERINGS. ExitoWeb does not promise, guarantee, or warrant your business’ success, income, or sales. Further, we do not make earnings claims, efforts claims, return on investment claims, or claims that our software, tools, or other offerings will make your business any specific amount of money, and it is possible that you will not earn your investment back. We do not sell a business opportunity, “get rich quick” program, guaranteed system, franchise system, or a business in a box. You should not use the Subscription Service if that is your expectation. Instead, you should use the Subscription Service with the understanding that using the information and software included in the Subscription Service will take time and effort and may be applicable in some situations but not others.
7. Miscellaneous
(a) Amendment; No Waiver. We may update and change any part or all of these Terms of Service, including the fees and charges associated with the use of the Subscription Service (but, your fees and charges won’t change during the Subscription Term except as we explain in the ‘Fees and Payments’ section above.) The updated Terms of Service will become effective and binding on the next business day after it is posted. When we change these Terms of Service, the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review these Terms of Service periodically. If you do not agree with a modification to the Terms of Service, you must notify us in writing within fifteen (15) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Terms of Service prior to modification for the remainder of your current term. Upon renewal, the Terms of Service published by us on our website will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
(b) Force Majeure. Neither party will be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage; pandemic or act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
(c) Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
(d) Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
(e) Compliance with Laws. We will comply with all U.S. state and federal laws (where applicable) in our provision of the Subscription Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Subscription Service and Consulting Services, including any applicable export laws. You must comply with all applicable laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury in your use and receipt of the Subscription Service and Consulting Services. You will not directly or indirectly export, re-export, or transfer the Subscription Service or Consulting Services to prohibited countries or individuals or permit use of the Subscription Service or Consulting Services by prohibited countries or individuals.
(f) Governing Law. This Agreement is governed by the laws of the State of Florida, U.S.A. without reference to conflicts of law principles. Both parties consent to the exclusive jurisdiction and venue of the courts in Miami, Florida, U.S.A. for all disputes arising out of or relating to the use of the Subscription Service or the Consulting Services.
(g) Severability. If any part of this Agreement or an Order is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
(h) Notices. Notice will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.
To ExitoWeb, Inc.: via email at compliance@escala.com.
To you: your address as provided in our ExitoWeb Subscription account information for you. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
(i) Entire Agreement. This Agreement (including each Order), along with our Privacy Policy, is the entire agreement between us for the Subscription Service and Consulting Services and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Subscription Service or dependent on any oral or written public comments made by us regarding future functionality or features of the Subscription Service. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
(j) Assignment. You will not assign or transfer this Agreement without our prior written consent, except that you may assign this Agreement to a successor by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, provided such successor is not a competitor of ours. We may assign this Agreement to any ExitoWeb affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
(k) No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(l) Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
(m) Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms. Customer further warrants and represents that it has the authority to procure its Affiliates compliance with the terms of this Agreement.
(n) Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Definitions’, ‘Fees and Payments’, ‘Use and Limitations of Use, ‘Early Cancellation’, ‘Termination for Cause’, ‘Suspension for Prohibited Acts, ‘Suspension for Non-Payment’, ‘Suspension for Present Harm’, ‘Suspension and Termination of Free Services’, ‘Effect of Termination or Expiration’, ‘Retrieval of Customer Data’, ‘ExitoWeb’s Proprietary Rights’, ‘Customer’s Proprietary Rights’, ‘Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Miscellaneous’ and ‘Contracting Entity and Applicable Law’.
(o) Precedence. In the event of a conflict between the terms of the Terms of Service and an Order, the terms of the Order shall control, but only as to that Order.
