Terms of Service

Last Modified: May 1st 2020

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, 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. DEFINITIONS5

“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 to or linked to in here.

“Billing Period” means the period for which you agree to prepay fees under an Order Form, which will be the same as, or shorter than, the Subscription Term as specified in the Order Form. 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 user name(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.

“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.

“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 Form, plus any Contacts added as part of an upgrade.

“Order” or “Order Form” means the ExitoWeb-approved form or online subscription process by which you agree to subscribe to the Subscription Service and 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 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 to by an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us, and 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 Form(s), 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 Form 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. Fees and Payments
      1. 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.

      1. 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. We complete this review between forty (40) and twenty-five (25) days before the start of your next Billing Period. 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.

      1. Fee Adjustments During a Billing Period. [Option 1: The 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.] [Option 2: If you 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.

      1. 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.

      1. Payment by credit card. If you are paying by credit card, you authorize us to charge your credit 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.

      1. 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.

      1. Payment Information. You will keep your contact information, billing information and credit 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.

      1. 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.

Sharing of Information

We often need to engage third party companies and individuals (such as payment processors, research companies and analytics and security providers) to help us operate and provide the Services. These third parties have only limited access to information about you, may use such information only to perform these tasks on our behalf, and are obligated to us not to disclose or use information about you for other purposes.

We will not share information about you except in the following circumstances or as otherwise described in this Privacy Policy:

  • With vendors, consultants and other service providers who need access to such information to carry out work on our behalf;
  • In response to a request for information if we believe disclosure is in accordance with any applicable law, regulation or legal process, or as otherwise required by any applicable law, rule or regulation;
  • If we believe your actions are inconsistent with the spirit or language of our user agreements or policies, or to protect the rights, property and safety of ExitoWeb or others;
  • In connection with, or during negotiations of, any merger, sale of company assets, financing or acquisition of all or a portion of our business by another company;
  • Between and among ExitoWeb and our current and future parents, affiliates, subsidiaries and other companies under common control and ownership; and
  • With your consent or at your direction.
    We may also share aggregated or de-identified information, which cannot reasonably be used to identify you.

Advertising and Analytics
Services Provided by Others

We may allow others to serve advertisements on our behalf across the Internet and to provide analytics services. These entities may use cookies, web beacons and other technologies to collect information about your use of the Services and other websites, including your IP address, web browser, mobile network information, pages viewed, time spent on pages, links clicked and conversion information. This information may be used by ExitoWeb and others to, among other things, analyze and track data, determine the popularity of certain content, deliver advertising and content targeted to your interests on our Services and other websites and better understand your online activity. For more information about interest-based ads, or to opt out of having your web browsing information used for behavioral advertising purposes, please visit www.aboutads.info/choices or https://www.youronlinechoices.eu/ if you are in the EEA.

We also use Google Analytics within our Services. For more information on how Google may use personal information about you, see www.google.com/policies/privacy/partners/ for more information.

Please note: If you choose to opt-out of interest-based advertising, you may continue to see or receive online advertising, but such ads may not be as relevant to you.

Retaining Your Information

ExitoWeb will retain information about you only for as long as is necessary for the purposes set out in this Privacy Policy or as described to you, including for as long as your account is active (i.e., for the lifetime of your escala account), or as needed to provide the Services to you. If you no longer want ExitoWeb to use information about you to provide the Services to you, you may cancel your account. ExitoWeb will retain and use such information to the extent necessary to comply with our legal obligations (for example, if we are required to retain your information to comply with applicable tax/revenue laws or to demonstrate our compliance with applicable laws governing our interaction with you), resolve disputes and enforce our agreements. We also retain log files for internal analysis purposes. These log files are generally retained for a limited period of time, except in cases where they are used for the safety and security of the Services, to improve functionality of the Services or we are legally obligated to retain them for longer time periods.

Transfer of Information
to the U.S. and Other Countries

In order to provide you with the Services you subscribe to or that you request from us, information about you may be transferred to ExitoWeb locations in the United States as well as countries where our service providers may be based. In some cases, information about you may be transferred to or accessed from other countries, including when you consent and allow us to do so, where it is required in order for us to provide Services to you and when we need to do so to provide functions like product support, troubleshooting and gaining insights into the usage patterns of our Services. When information about you is transferred to countries other than your home country, you may not have the same rights and protections as you do under local law. Any international transfers of such information will be done in accordance with applicable law.

EU-US and Swiss-US Privacy Shield

In connection with ExitoWeb’s processing of personal data (as defined by European law) it receives from the European Union (“EU”) or Switzerland, we comply with the EU-U.S. Privacy Shield Framework and the Swiss-U.S. Privacy Shield Framework (together “Privacy Shield”) with respect to personal data we process from the EU or Switzerland and transfer to the United States. For more information about the Privacy Shield, and to view our certification, please visit the Privacy Shield website. We remain responsible and liable under the Privacy Shield for any personal data that we share with third parties for external processing on our behalf, as described in the “Sharing of Information” section above, unless we prove we are not responsible for the event giving rise to the damage. If you have an inquiry regarding our adherence to the Privacy Shield, we encourage you to contact us at privacy@escala.com. We are subject to the investigatory and enforcement authority of the U.S. Federal Trade Commission. You may also refer your complaint free-of-charge to JAMS using this link: https://www.jamsadr.com/eu-us-privacy-shield, our designated Privacy Shield dispute resolution provider. In certain circumstances, the Privacy Shield provides the right to invoke binding arbitration to resolve complaints (see Annex I to the Privacy Shield Principles for more details).

Residents of the European
Economic Area and Switzerland

Residents of California

If you are a resident of California, you have certain rights and protections under the California Consumer Privacy Act (“CCPA”).

CCPA Consumer Rights

The CCPA requires us to communicate information about rights California consumers have with respect to their personal information (as defined within the CCPA). These rights include the right to request: access to their personal information; deletion of their personal information; additional details about our information practices; the categories of personal information sold in the preceding 12 months and the categories of third parties to whom the personal information was sold; the categories of personal information shared within in the preceding 12 months; to opt out of the “sale” of their personal information, and to not be discriminated against.

For details about how to exercise these rights, please see “Your Choices” below to exercise your rights by sending us an email with your request and finally. California consumers may also designate an authorized agent to exercise these options on their behalf. If you would like to use an authorized agent registered with the California Secretary of State to exercise these rights, we may request evidence that you have provided such agent with power of attorney or that the agent otherwise has valid written authority to submit requests on your behalf. We will not discriminate against you if you choose to exercise your rights related to your personal information.

Categories of Personal Information Collected

In the preceding 12 months, we have collected the following CCPA-defined categories of personal information:

  • Identifiers such as a real name, alias, postal address, unique personal identifier, online identifier, Internet Protocol address, email address, and account name;
  • Characteristics of protected classifications under state or federal law, such as age or gender;
  • Commercial Information, including records of Services purchased and credit card or other payment information;
  • Internet or electronic network activity information, information, including, but not limited to, browsing history, search history, and information regarding your interaction with the Services including an internet website, application, or advertisement;
  • Audio, electronic, visual, thermal, olfactory, or similar information such as profile pictures;
  • Professional or employment related information;
  • Education Information; and
  • Inferences drawn to create a profile about a consumer reflecting the consumer’s preferences, characteristics, psychological trends, predispositions, behavior, attitudes, intelligence, abilities, and aptitudes.

For more specific examples of the personal information we collect, please see “Collection of Information” above.

Business or Commercial Purpose for Collecting Personal Information

We collect personal information for the business and commercial purposes described in the “Use of Information”.

Categories of Sources of Personal Information

We collect personal information directly from you, automatically from your use of our Services, by using or combining personal information to derive additional personal information about you, and from others as described in “Collection of Information”.

Categories of Third Parties with Whom We Share Personal Information

We may share your personal information with third parties as described in the “Sharing of Information” section above.
Categories of Personal Information Disclosed

In the preceding 12 months, we have disclosed the following CCPA-defined categories of personal information for business or commercial purposes:

  • Identifiers such as a real name, alias, postal address, unique personal identifier, online identifier, internet protocol address, email address, and account name;
  • Characteristics of protected classifications under state or federal law, such as age or gender;
  • Commercial Information, including records of Services purchased and credit card or other payment information;
  • Internet or electronic network activity information, information, including, but not limited to, browsing history, search history, and information regarding your interaction with an internet website, application, or advertisement;
  • Audio, electronic, visual, thermal, olfactory, or similar information such as profile pictures;
  • Professional or employment related information;
  • Education Information; and
    Inferences drawn to create a profile about a consumer reflecting the consumer’s preferences, characteristics, psychological trends, predispositions, behavior, attitudes, intelligence, abilities, and aptitudes.

Your Choices

Account Information

If you are a current ExitoWeb client, you may update, correct or delete certain account information about you at any time by logging into your online account or emailing us at privacy@escala.com. If you wish to cancel or temporarily pause your account, please email us at privacy@escala.com and let us know what you are requesting, but note that we may retain certain information as required by law or for legitimate business purposes. We may also retain cached or archived copies of information about you for a certain period of time.

Cookies

Most web browsers are set to accept cookies by default. If you prefer, you can usually choose to set your browser to remove or reject browser cookies. Please note that if you choose to remove or reject cookies, this could affect the availability and functionality of our Services. You can visit our Cookie Policy, available at https://www.escala.com/cookie-policy/ for more information on your choices with respect to cookies.

Promotional Communications

You may opt out of receiving promotional emails from ExitoWeb by following the instructions in those emails or by clicking the “unsubscribe” link at the bottom of any of our emails. If you opt out, we may still send you non-promotional emails, such as those about your account or our ongoing business relations.

Mobile Push Notifications/Alerts

With your consent, we may send promotional and non-promotional push notifications or alerts to your mobile device. You can deactivate these messages at any time by changing the notification settings on your mobile device.

Contact Us

If you have any questions about this Privacy Policy, please contact us at privacy@escala.com or you can otherwise reach us at:

888 South Douglas Road, Suite 916
Miami, FL 33134