Effective as of January 4, 2024.
This Freshpaint Online Customer Agreement (“Agreement“) is entered into by and between Perfalytics, Inc. doing business as Freshpaint (“Freshpaint“) and the entity or person placing an order for or accessing the Service (“Customer“ or “you“). This Agreement consists of the terms and conditions set forth below and any Freshpaint ordering documents, online registration, order descriptions or order confirmations referencing this Agreement (“Order Forms“). If you are accessing or using the Service on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company.
The “Effective Date“ of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Service (as defined below) through any online provisioning, registration, or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
Modifications: You acknowledge and agree that Freshpaint may modify the terms and conditions of this Agreement at any time in accordance with Section 12 (Modifications to Agreement).
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SERVICE, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE SERVICE. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
1. FRESHPAINT SERVICE
1.1. Overview
The Service acts as a centralized hub for Customer Data, allowing Customer to collect Customer Data from its selected sources (“Sources“), such as its own or third-party websites or properties, and send the Customer Data to Customer’s chosen destinations (“Destinations“), such as Customer’s databases or its accounts with third-party applications or services, for Customer’s further use. The supported Sources and Destinations are identified in the Documentation. As further described below and in the Documentation, Customer maintains control over which Sources and Destinations it uses with the Service, as well as the types and content of Customer Data it shares between its Sources and Destinations.
1.2. Freshpaint Code
For Sources owned or controlled by Customer (“Customer Properties“), Customer will enable the collection of Customer Data by implementing Freshpaint’s Autotrack JavaScript, SDK, or other code (“Freshpaint Code“) on the Customer Properties.
1.3. Definitions
“Customer Data“ means any data that Customer submits to the Service, including data that it collects from Customer Properties or retrieves from other Sources through the Service.
“Sources” means owned, controlled, or third-party sources from which Customer chooses to retrieve Customer Data.
"Destinations” means third party destinations to which Customer chooses to transmit Customer Data using the Service.
“Documentation“ means the end user technical documentation provided with the Service, as may be modified from time to time.
“Laws“ means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
“Order Form“ is defined above.
“Prohibited Personal Information“ means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS“); (ii) social security numbers, driver’s license numbers or other government ID numbers; (iii) any of the following information deemed to be “special categories of data” of an EU resident (prior to May 25, 2018, as such term is defined in EU Data Protection Directive 95/46/EC; and on and after May 25, 2018, as defined in European Union Regulation 2016/679): personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person; or (iv) any other personal or sensitive information subject to regulation or protection under the Gramm-Leach-Bliley Act, Children’s Online Privacy Protection Act or other foreign or domestic Laws. For clarity, Prohibited Personal Information does not include protected health information as defined in the Health Insurance Portability and Accountability Act of 1996.
“Usage Data” means Freshpaint’s technical logs, account and login data, data and learnings about Customer’s use of the Services (e.g., frequency of logins, volume of Customer Data collected or sent to Destinations). For clarity, Usage Data does not include Customer Data.
“Service“ means the specific Freshpaint proprietary hosted service solution(s) specified on an Order Form, including the Freshpaint dashboard and any related Freshpaint Code and API(s).
1.4. Access to the Service
Customer may access and use the Service for its internal business operations, subject to this Agreement (including Section 2 (Service Plans and Beta Releases)), the Documentation, and any scope of use restrictions on the applicable Order Form. This includes the right to implement Freshpaint Code on Customer Properties in order to collect Customer Data for use with the Service. Access to the Service is limited to Customer’s employees and contractors acting for the sole benefit of Customer (“Permitted Users“). Customer and its Permitted Users may need to register for a Freshpaint account in order to access or use the Service. Account registration information must be accurate, current and complete, and will be governed by Freshpaint’s Privacy Policy (currently available at
https://Freshpaint.io/privacy-policy). Customer is responsible for any use of the Service by its Permitted Users and their compliance with this Agreement. Customer shall keep confidential its user IDs and passwords for the Service and remain responsible for any actions taken through its accounts.
1.5. Use Restrictions
Customer shall not (and shall not permit any third party to): (a) rent, lease, provide access to or sublicense the Service to a third party; (b) use the Service to provide, or incorporate the Service into, any product or service provided to a third party; (c) use or attempt to use the Service for competitive analysis or benchmarking; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Service, except to the extent expressly permitted by applicable law (and then only upon advance notice to Freshpaint); (e) copy, modify or create any derivative work of the Service or any Documentation; (f) remove or obscure any proprietary or other notices contained in the Service (including any reports or data printed from the Service); or (g) publicly disseminate information regarding the performance of the Service.
1.6. Storage and Processing of Customer Data
Freshpaint may store certain Customer Data submitted from Sources to enable various features and functionality of the Service, including for “Replay” and backfilling Customer Data to Destinations at Customer’s direction. Customer acknowledges that Customer Data transmitted through the Service may be stored and processed by Freshpaint in the United States.
2. SERVICE PLANS AND BETA RELEASES
2.1. Service Plans
Freshpaint makes available the Service through trial plans (“Trial Plans“) and paid plans (“Paid Plans“). Current plans are described at
https://Freshpaint.com/pricing and Customer’s specific plan will be identified in the Order Form presented when Customer registers, orders, or pays for the Service. Customer’s permitted scope of use – such as features available, permitted number of monthly users, and other usage limits – depends on the plan that Customer selects and will be specified on the applicable Order Form.
2.2. Paid Plans
Paid Plans are provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term“). Unless otherwise specified on the applicable Order Form, each Subscription Term shall automatically renew for the same period as the then-current Subscription Term unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term (e.g., monthly Paid Plans will automatically roll over month-to-month and annual Paid Plans will automatically renew for additional 12-month periods).
2.3. Team Plans and Trial Plans
2.4. Beta Releases
From time to time, Freshpaint may grant Customer access to “alpha”, “beta”, or other early-stage products (“Beta Releases“). While Freshpaint may provide assistance with Beta Releases in its discretion, notwithstanding anything to the contrary in this Agreement, CUSTOMER AGREES THAT ANY BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH FRESHPAINT WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT CUSTOMER’S SOLE RISK. Freshpaint makes no promises that future versions of a Beta Release will be released. Freshpaint may terminate Customer’s right to use any Beta Release at any time for any reason or no reason in Freshpaint’s sole discretion, without liability.
3. FEES AND PAYMENT
3.1. Fees and Payment
All fees for Paid Plans are as set forth in the applicable Order Form and shall be paid by Customer in accordance with the payment terms set forth in the Order Form. If no payment terms are specified in the Order Form, then the following default terms apply: (i) for monthly Paid Plans, Customer will pay all fees at the end of the month and (ii) for annual Paid Plans, Customer will pay all fees within thirty (30) days of invoice. Except as expressly set forth in Section 12 (Modifications to Agreement), all fees are non-refundable. Freshpaint reserves the right to increase the rates specified in the Order Form upon any renewal of a Subscription Term. Customer is required to pay any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Freshpaint. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
3.2. Overages
If Customer exceeds its permitted usage in any month of a Subscription Term as specified in an Order Form, Freshpaint reserves the right to charge overage fees in respect of such excess usage at the applicable overage rates set forth in the Order Form. Customer will pay any overage fees on a prorated basis for the remainder of the Subscription Term.
4. CUSTOMER OBLIGATIONS
4.1. Data CollectionSubject to this Agreement and as further described in the Documentation, Customer may configure the Customer Data elements to be collected from Sources and shared with different Destinations. In some instances, as referenced in the Service dashboard and Documentation, enabling a third-party Destination involves implementing the third-party provider’s own SDK or code on Customer Properties. As a result, in these cases, certain default data designated by that Destination’s provider may be sent directly to Customer’s accounts with that Destination, rather than passing through the Service.
4.2. Rights in Customer Data
Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Freshpaint that (1) Customer will comply with all applicable Laws in its use of the Services (including, if applicable, the California Consumer Privacy Protection Act, European Union Regulation 2016/679 and similar Laws governing cross-site tracking or automated decision-making) and (2) Customer has provided all disclosures and obtained all necessary rights, consents and permissions to collect, share and use Customer Data as contemplated in this Agreement (including granting Freshpaint the rights in Section 6.1 and Customer’s building, tracking, using, or sharing of any user profiles, traits, or audiences), without violation or infringement of (i) any third-party intellectual property, publicity, privacy, or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies, or other agreement governing the Customer Properties or Customer’s accounts with third-party Sources or Destinations. By enabling use of the Services with any Source or Destination, Customer authorizes Freshpaint to access Customer’s accounts with such Source or Destination for the purposes described in this Agreement. In addition, in order to provide the Services to Customer and improve Freshpaint’s integrations with Sources and Destinations, Freshpaint may also disclose Customer’s status as a Freshpaint customer and related technical Services data to the providers of Customer’s Sources and Destinations.
4.3. No Prohibited Personal Information
Customer specifically agrees not to use the Services to collect, store, process or transmit any Prohibited Personal Information, except as specified in Customer’s Order Form. Customer acknowledges that Freshpaint is not a payment card processor and that the Services is not PCI DSS compliant. Freshpaint shall have no liability under this Agreement for Prohibited Personal Information, notwithstanding anything to the contrary herein.
4.4. No Protected Health Information
Customer specifically agrees not to use the Services to collect, store, process or transmit any patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA“), unless specified in Customer’s Order Form and a Business Associate Agreement is executed between Customer and Freshpaint. Customer acknowledges that Freshpaint is not a Business Associate or subcontractor (as those terms are defined in HIPAA) and is not HIPAA compliant, unless specified as such in Customer’s Order Form and a Business Associate Agreement is executed between Customer and Freshpaint. Freshpaint shall have no liability under this Agreement for patient, medical or other protected health information regulated by HIPAA unless Level 3 Support is included in Customer’s Order Form and a Business Associate Agreement is executed between Customer and Freshpaint, notwithstanding anything to the contrary herein.
4.5. Customer HIPAA Obligations
Customer agrees that it:
(a) has included, and will include, in its Notice of Privacy Practices required by the Privacy and Security Rules that Customer may disclose PHI for Health Care Operations purposes and shall notify Freshpaint of any limitation in any applicable Notice of Privacy Practices in accordance with 45 CFR Section 164.520, to the extent that such limitation may affect Freshpaint’s ability to perform its obligations;
(b) will promptly notify Freshpaint in writing of any restrictions on the Use and Disclosure of PHI about Individuals that Customer has agreed to that may affect Freshpaint’s ability to perform its obligations;
(c) will promptly notify Freshpaint in writing of any change in, or revocation of, permission by an Individual to use or disclose PHI, if such change or revocation may affect Freshpaint’s ability to perform its obligations; and
(d) has obtained, and will obtain, from Individuals any consents, authorizations, or other permissions necessary or required by law for Freshpaint and Customer to fulfill their obligations.
4.6. Customer Security Responsibilities
Customer is responsible for security relating to its environment and databases and security relating to its configuration of the Services as well as the configuration of access permissions and security controls for third-parties engaged to perform professional services related to the Services. This includes implementing and managing procedural, technical, and administrative safeguards on its software and networks sufficient to: (a) ensure the confidentiality, security, integrity, and privacy of PHI in transit, at rest, and in storage; (b) protect against any anticipated threats or hazards to the security and integrity of PHI; (c) protect against any unauthorized processing, loss, use, disclosure or acquisition of or access to PHI; and (d) meet their Privacy and Security Rules obligations. Notwithstanding any other provision of this Agreement or any other agreement related to the Services (including, without limitation, a Business Associate Agreement between the parties), Freshpaint will have no obligations or liability as to any breach or loss resulting from: (x) Customer’s environment, databases, systems, or software, (y) Customer’s security configuration or administration of the Services, or (z) Customer sending PHI via the email notification service or via support chat.
4.7. Appropriate Use and Controls of the Service
Customer is responsible for implementing appropriate privacy and security safeguards in order to protect Customer’s PHI in compliance with HIPAA, this Agreement, and any Business Associate Agreement between the parties. Customer is solely responsible for configuring certain aspects of the Services, including: (a) methods of authenticating users (such as industry-standard secure username/password policies, two-factor authentication, or SAML-supported SSO iDP); (b) assigning user access based on individuals permitted to access PHI and other sensitive data; (c) deauthorizing personnel who no longer need access to the Services in a timely manner; (d) not sharing any sensitive information, including but not limited to PHI, via the Services with a third-party unless a Business Associate Agreement is in place with the third-party; (e) not including PHI in any event names; (f) not including PHI in any Autotrack event filters; (g) configuring any destinations in a secure way; (h) maintaining configuration of destinations and removing destinations that are no longer used, can no longer access PHI, or other security or privacy concerns; (i) setting up any API usage in a secure way; (j); not allowing PHI to be sent via unsecure email (including but not limited to the email notification service); (k) not allowing PHI to be sent or attached via support chat; and (l) at least quarterly, performing an audit on all users, groups, permissions, roles, API keys, Destinations, Sources, and additional access avenues for appropriateness. “Sources” means owned, controlled, or third-party sources from which Customer chooses to retrieve Customer Data. “Destinations” means third party destinations to which Customer chooses to transmit Customer Data using the Service. Sources owned or controlled by Customer are “Customer Properties”.
4.8. Customer’s Database Security Controls
In some instances, in order to use the Services, Customer must authorize the Services to access Customer’s databases or other 3rd-party Sources and Destinations. When granting authorization, Customer shall follow the principle of least privilege to Customer database information that is accessible by the Services. Customer shall also ensure that all connections to the database are encrypted in transit, and if using an SSH tunnel connection, that a tunnel server is employed. Customer shall whitelist external access to permit only Freshpaint specific IP addresses and no others. To the extent enabled by Customer, Freshpaint shall not be responsible for: (a) any breach or loss of PHI to the extent Customer provides the Services with insecure access to Customer’s databases.
4.9. Indemnification by Customer
Customer shall indemnify, defend, and hold harmless Freshpaint from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to any Customer Data ingested or consumed into the Service or breach or alleged breach by Customer of Sections 4.2 (Rights in Customer Data), 4.3 (No Prohibited Personal Information), 4.4 (No Protected Health Information), 4.5 (Customer HIPAA Obligations), 4.6 (Customer Security Responsibilities), 4.7 (Appropriate Use and Controls of the Service), and 4.8 (Customer’s Database Security Controls). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Freshpaint at Customer’s expense.
5. SECURITY
Freshpaint agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration, or disclosure of the Service or Customer Data. However, Freshpaint shall have no responsibility for errors in transmission, unauthorized third-party access, or other causes beyond Freshpaint’s control.
6. OWNERSHIP
6.1. Customer DataAs between the parties, Customer shall retain all right, title, and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Freshpaint. Subject to the terms of this Agreement, Customer hereby grants to Freshpaint a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and display the Customer Data solely to the extent necessary to provide the Service to Customer.
6.2. Freshpaint Technology
This is a subscription agreement for access to and use of the Service. Customer agrees that Freshpaint or its suppliers retain all right, title, and interest (including all patent, copyright, trademark, trade secret, and other intellectual property rights) in and to the Service, all Documentation, and any and all related and underlying technology and documentation and any derivative works, modifications, or improvements of any of the foregoing, including as may incorporate Feedback (as defined below). Freshpaint may generate Usage Data to operate, improve, analyze and support the Services, for benchmarking and reporting and for Freshpaint’s other lawful business purposes. Except as expressly set forth in this Agreement, no rights in the Service or any Freshpaint technology are granted to Customer.
6.3. Feedback
Customer, from time to time, may submit comments, questions, suggestions, or other feedback relating to any Freshpaint product or service to Freshpaint (“Feedback“). Freshpaint may freely use or exploit Feedback in connection with any of its products or services.
6.4. Aggregated Anonymous Data
Notwithstanding anything to the contrary herein, Customer agrees that Freshpaint may obtain and aggregate technical and other data about Customer’s use of the Service that is non-personally identifiable with respect to Customer (“Aggregated Anonymous Data“), and Freshpaint may use the Aggregated Anonymous Data to analyze, improve, support, and operate the Service and for distribution in general benchmarking data and industry reports. For clarity, this Section 6.4 does not give Freshpaint the right to identify Customer as the source of any Aggregated Anonymous Data.
7. TERM AND TERMINATION
7.1. TermThis Agreement is effective as of the Effective Date and will continue until terminated.
7.2. Termination for Cause
Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees or comply with applicable scope of use restrictions) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). For clarity, nothing in this Section 7.2 limits Freshpaint’s right to terminate or suspend any Team Plan or Trial Plan as set forth in Section 2.3 (Team Plans and Trial Plans).
7.3. Effect of Termination
Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to the Service (including any and all related Freshpaint technology), cease distributing any Freshpaint Code installed on Customer Properties, and delete (or, at Freshpaint’s request, return) any and all copies of the Documentation, any Freshpaint passwords or access codes and any other Freshpaint Confidential Information in its possession. Customer acknowledges that following termination it shall have no further access to any Customer Data in the Service, and that Freshpaint may delete any such data as may have been stored by Freshpaint at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
7.4. Suspension of Service
In addition to Freshpaint’s termination and other rights under this Agreement, Freshpaint reserves the right to suspend Customer’s access to the Service (and any related services), in whole or in part, without liability to Customer and with immediate effect: (i) if Customer’s account is thirty (30) days or more overdue; (ii) if Customer exceeds any scope of use restrictions set forth in the applicable Order Form; (iii) if Customer has breached its express obligations under Sections 1.5 (Use Restrictions) or 4 (Customer Obligations); or (iv) to prevent harm to the Service or other Freshpaint customers.
7.5. Survival
The following Sections shall survive any expiration or termination of this Agreement: 1.5 (Use Restrictions), the disclaimers in Section 2.4 (Beta Releases), 3 (Fees and Payment), 4.9 (Indemnification by Customer), 6 (Ownership), 7 (Term and Termination; Suspension), 8 (Warranty Disclaimer), 9 (Limitation of Remedies and Damages), 10 (Confidential Information), 12 (Modifications to Agreement) and 13 (General Terms).
8. WARRANTY DISCLAIMER
THE SERVICE AND ALL RELATED SERVICES ARE PROVIDED “AS IS”. NEITHER FRESHPAINT NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, EXCEPT AS SPECIFIED IN SECTION 1.1 (OVERVIEW) AND ON THE APPLICABLE ORDER FORM. FRESHPAINT DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES FRESHPAINT WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. CUSTOMER UNDERSTANDS THAT CUSTOMER DATA IS SHARED WITH DESTINATIONS AT CUSTOMER’S ELECTION AND FRESHPAINT TAKES NO RESPONSIBILITY FOR ANY DESTINATION’S USE OR PROTECTION OF CUSTOMER DATA ONCE IT HAS BEEN SHARED. FRESHPAINT SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF FRESHPAINT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
9. LIMITATION OF REMEDIES AND DAMAGES
9.1. Consequential Damages WaiverEXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
9.2. Liability Cap
FRESHPAINT’S (AND ITS SUPPLIERS’) ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO FRESHPAINT DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.
9.3. Excluded Claims
“Excluded Claims“ means (a) any claim arising from Customer’s breach of Section 1.5 (Use Restrictions); or (b) any claim arising under Section 4 (Customer Obligations).
9.4. Nature of Claims and Failure of Essential Purpose
The parties agree that the waivers and limitations specified in this Section 9 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
10. CONFIDENTIAL INFORMATION
Each party (as “Receiving Party“) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party“) constitute the confidential property of the Disclosing Party (“Confidential Information“), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Freshpaint technology, performance information relating to the Service, and the terms and conditions of this Agreement shall be deemed Confidential Information of Freshpaint without any marking or further designation. Except as expressly authorized herein, the Receiving Party shall (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement.
The Receiving Party may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for Freshpaint, the subcontractors referenced in Section 13.10), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 10 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 10. The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
11. CO-MARKETING
Customer agrees to participate in reasonable marketing activities that promote the benefits of the Service to other potential customers and to use of Customer’s name and logo on Freshpaint’s website and in Freshpaint promotional materials. Customer agrees that Freshpaint may disclose Customer as a customer of Freshpaint.
12. MODIFICATIONS TO AGREEMENT
Freshpaint may modify the terms and conditions of this Agreement (including Service pricing and plans) from time to time, with notice given to Customer by email or through the Service. If Customer has a Team Plan or a Trial Plan, then any modifications will become effective immediately, and if Customer disagrees with the modifications, Customer’s exclusive remedy is to terminate this Agreement and cease using the Service. If Customer has a Paid Plan, Customer must notify Freshpaint within thirty (30) days of notice of the modifications that Customer does not agree to such changes, and Freshpaint (at its option and as Customer’s exclusive remedy) may either: (a) permit Customer to continue under the prior version of this Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will apply) or (b) allow Customer to terminate this Agreement and receive a pro-rated refund of any fees Customer has pre-paid for use of the Service for the terminated portion of the applicable Subscription Term. Upon any changes to this Agreement, Customer may be required to click to agree to the modified Agreement in order to continue using the Service, and in any event continued use of the Service after the modifications take effect constitutes Customer’s acceptance of the modifications.
13. GENERAL TERMS
13.1. AssignmentThis Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that Freshpaint may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of Freshpaint’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 13.1 will be null and void.
13.2. Severability
If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
13.3. Governing Law; Jurisdiction and Venue
This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts.
13.4. Attorneys’ Fees and Costs
The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
13.5. Notice
Any notice or communication to Freshpaint that is required or permitted under this Agreement shall be in writing to Freshpaint at the address set forth in Section 13.6 (Freshpaint Contact Information) below or at such other address as directed by Freshpaint, and shall be deemed to have been received by Freshpaint (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. Freshpaint may send notices to Customer through Customer’s email on file or through the Service. All notices given to Customer shall be deemed to have been received by Customer upon delivery.
13.6. Freshpaint Contact Information
Any Customer questions, complaints or claims regarding the Service should be sent to the following address:
Perfalytics, Inc.
5214F Diamond Heights Blvd
#3502
San Francisco, CA 94131
13.7. Waivers
No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
13.8. Entire Agreement
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Service is an online, subscription-based product, and that in order to provide improved customer experience Freshpaint may make changes to the Service, and Freshpaint will update the applicable Documentation accordingly.
13.9. Force Majeure
Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure, or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
13.10. Subcontractors
Freshpaint may use the services of subcontractors and permit them to exercise the rights granted to Freshpaint in order to provide the Service under this Agreement. These subcontractors may include, for example, Freshpaint’s hosting, infrastructure, and CDN providers. Freshpaint remains responsible for compliance of any such subcontractor with the terms of this Agreement and the overall performance of the Service as required under this Agreement.
13.11. Subpoenas
Nothing in this Agreement prevents Freshpaint from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but Freshpaint shall use commercially reasonable efforts to notify Customer where permitted to do so.
13.12. Independent Contractors
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
13.13. Export Control
In its use of the Service, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer shall not (and shall not permit any of its users to) access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall not submit to the Service any information that is controlled under the U.S. International Traffic in Arms Regulations.
13.14. Government End-Users
Elements of the Service are commercial computer software. If the user or licensee of the Service is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Service was developed fully at private expense. All other use is prohibited.
Exhibit A
Support Terms
Freshpaint will use commercially reasonable efforts to provide an initial response to any support ticket within 48 hours of creation time during Business Days.
Freshpaint offers the SLA available online at
freshpaint.io/sla, as applicable.
