TERMS OF SERVICE
THESE TERMS OF SERVICE (THESE “TERMS”) GOVERN SUBSCRIPTION TO AND USE OF OFFERSHUB’S SERVICES. IF YOU REGISTER FOR A FREE TRIAL OF OFFERSHUB’S SERVICES, THE APPLICABLE PROVISIONS OF THESE TERMS WILL ALSO GOVERN THAT FREE TRIAL. BY ACCESSING OR USING OFFERSHUB’S WEBSITES AND SERVICES, YOU ACCEPT OR AGREE TO THESE TERMS. IF YOU ARE ENTERING INTO OR ACCEPTING THESE TERMS ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE, THE TERM “SUBSCRIBER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS OR USE OFFERSHUB’S SERVICES.
LAST UPDATED: APRIL 25, 2018 EFFECTIVE DATE: MAY 25, 2018
These Terms of Service (these “Terms”) are made by and between the party on whose behalf they are accepted (“Subscriber”) and OFFERSHUB and are effective as of the date they are accepted by Subscriber. “OFFERSHUB” means either (i) OFFERSHUB, Inc., a Delaware corporation, with offices at 301 Howard Street, Suite 300, San Francisco, CA 94105, U.S.A., if Subscriber is domiciled in a country outside of Europe, or (ii) OFFERSHUB SAS, a French société par actions simplifiée, with offices at 55 Rue d’Amsterdam, 75008 Paris, France, if Subscriber is domiciled in a country within Europe. The complete subscription agreement including these Terms (the “Agreement”) is made for the purpose of granting Subscriber a limited subscription to use OFFERSHUB’S hosted search, support or other services (the “Services”).
•If Subscriber registers at OFFERSHUB’S websites for a free trial (“Trial Account”) of one or more Services, OFFERSHUB will make such Services available to the Subscriber on a trial basis free of charge until the earliest of (a) twenty nine (29) days (the “Evaluation Period”), (b) the start of any paid subscription for such Services, or (c) termination by OFFERSHUB at its sole discretion. If, at the end of the Evaluation Period, Subscriber does not sign up for a paid subscription of the Services, the Agreement will automatically terminate unless OFFERSHUB agrees, in its sole discretion, to extend the Evaluation Period. Additional terms and conditions may appear on the registration website for a Trial Account and any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
• ALL TRIAL ACCOUNTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. TRIAL ACCOUNTS MAY BE SUSPENDED, TERMINATED, OR DISCONTINUED AT ANY TIME AND FOR ANY REASON (OR NO REASON). OFFERSHUB DISCLAIMS ALL OBLIGATION AND LIABILITY UNDER THE AGREEMENT (INCLUDING LIABILITY OTHERWISE PROVIDED FOR UNDER SECTION 13 (LIMITATION OF LIABILITY)) FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A TRIAL ACCOUNT, INCLUDING ANY OBLIGATION OR LIABILITY WITH RESPECT TO SUBSCRIBER DATA. ANY CONFIGURATIONS OR SUBSCRIBER DATA ENTERED INTO A TRIAL ACCOUNT, AND ANY CUSTOMIZATIONS MADE TO A TRIAL ACCOUNT BY OR FOR SUBSCRIBER, MAY BE PERMANENTLY LOST IF THE TRIAL ACCOUNT IS SUSPENDED, TERMINATED, OR DISCONTINUED. OFFERSHUB’S INDEMNITY OBLIGATIONS UNDER SECTION 16 (INDEMNIFICATION) DO NOT APPLY TO TRIAL ACCOUNTS.
OFFERSHUB will make the Services available to Subscriber according to one or more online or written ordering documents (each a “Service Order”). The Agreement includes each Service Order incorporating the Agreement.
• Compliance with Laws.
OFFERSHUB will comply with all laws and governmental regulations applicable to the Services.
• Personnel and Performance.
OFFERSHUB will be responsible for the performance of its personnel (including employees and contractors) and their compliance with the Agreement. OFFERSHUB enters into the Agreement on behalf of itself and its Affiliates. An “Affiliate” of a party is any entity,(a) that the party Controls, (b) that the party is Controlled by; or (c) with which the party is under common Control, where “Control” means direct or indirect control of fifty percent (50%) or more of an entity’s voting interests (including by ownership).
OFFERSHUB will make online documentation available at https://www.offershub.com/doc/ (the “Documentation”) that describe: (a) OFFERSHUB software made accessible as part of the Services (“OFFERSHUB Software”) and (b) usage guides for the Services.
OFFERSHUB will maintain administrative, physical, and technical safeguards for the security and integrity of the Services (the “Security Measures”) consistent with industry standard practices as described at https://www.OFFERSHUB.com/security. OFFERSHUB will store, process, transmit and disclose electronic data and configurations submitted to the Services at the direction of or on behalf of Subscriber (“Subscriber Data”) only according to the Agreement and the Documentation. The Services, independent of Subscriber Data, will not transmit code, files, scripts, agents, or programs intended to do harm, including, viruses, worms, time bombs, and Trojan horses (“Malicious Code”).
• Subscriber Data
As between OFFERSHUB and Subscriber, Subscriber is responsible for Subscriber Data and the provision of Subscriber Data to the Services according to the Agreement.
• Personnel and Performance.
Subscriber will be responsible for the performance of its personnel (including employees and contractors) in compliance with the Agreement. Subscriber enters into the Agreement on behalf of its Affiliates that make use of the Services.
• Non-OFFERSHUB Services
Subscriber may choose to use services not provided by OFFERSHUB (“Non-OFFERSHUB Services”) with the Services and in doing so grants OFFERSHUB permission to interoperate with the Non-OFFERSHUB Services as directed by Subscriber or the Non-OFFERSHUB Services. Unless specified in a Service Order: (a) OFFERSHUB does not warrant or support Non-OFFERSHUB Services, (b) as between OFFERSHUB and Subscriber, Subscriber assumes all responsibility for the Non-OFFERSHUB Services and any disclosure, modification or deletion of Subscriber Data by the Non-OFFERSHUB Services and (c) OFFERSHUB shall have no liability for, and Subscriber is not relieved of any obligations under the Agreement or entitled to any refund, credit, or other compensation due to any unavailability of the Non-OFFERSHUB Services or any change in the ability of OFFERSHUB to interoperate with the Non-OFFERSHUB Services.
Term and Termination
These Terms are effective during the term of any Service Order that incorporates the Agreement. The term of a Service Order shall be specified in the Service Order. Service Orders shall renew for successive terms, unless either party gives the other at least ninety (90) days’ notice of nonrenewal at the end of the applicable term.
•Termination for Cause
In addition to OFFERSHUB’S right to terminate the entire Agreement under Section 4.6 (Service Notices), Subscriber or OFFERSHUB may terminate the entire Agreement for cause (a) upon 30 days’ written notice to the other of a material breach if the breach remains uncured at the expiration of the notice period or (b) if the other party (i) becomes the subject of a proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors to the extent permitted by applicable laws or governmental regulations, (ii) goes out of business or (iii) ceases its operations.
Any term or condition that by its nature is clearly intended to survive the expiration or termination of the Agreement, shall survive any expiration or termination of the Agreement, including Sections 4.5(j), (k), (n), (o) and (p) (Subscriber’s Obligations), Section 7.1 (Fees), Section 7.5 (Refund or Payment upon Termination), Section 8 (Confidentiality), Section 9 (Licenses and Proprietary Rights), Section 13 (Limitation of Liability), Section 14 (Exclusion of Consequential and Related Damages) and Section 16 (Indemnification).
From time to time, OFFERSHUB may offer services identified as beta, pilot, developer preview, non-production, evaluation or by a description of similar import (“Beta Services”). Subscriber may accept or decline Beta Services. If accepted by Subscriber, Beta Services: (a) are provided only for evaluation purposes; (b) may not be relied on by Subscriber for production use; (c) may not be supported; and (d) may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire on the date that a version of the Beta Services becomes generally available or is discontinued. OFFERSHUB may discontinue Beta Services at any time in its sole discretion and may never make Beta Services generally available. ALL BETA SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. BETA SERVICES MAY BE TERMINATED AT ANY TIME. OFFERSHUB DISCLAIMS ALL OBLIGATION AND LIABILITY UNDER THE AGREEMENT FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA SERVICE, INCLUDING ANY OBLIGATION OR LIABILITY WITH RESPECT TO SUBSCRIBER DATA. ANY CONFIGURATIONS OR SUBSCRIBER DATA ENTERED INTO BETA SERVICES, AND ANY CUSTOMIZATIONS MADE TO BETA SERVICES BY OR FOR SUBSCRIBER, MAY BE PERMANENTLY LOST IF THE BETA SERVICES ARE SUSPENDED, TERMINATED, OR DISCONTINUED.
Fees and Payment
Subscriber will pay all fees specified in Service Orders and provide accurate and updated billing contact information. Except as set forth in a Service Order, all fees payable under the Agreement shall be made in U.S. Dollars. Minimum commitments in Service Orders are (a) based on Services purchased and not actual usage; (b) non-cancelable; and (c) cannot be decreased during the specified term. Fees paid for minimum commitments are not refundable. Subscriber’s payments of fees are neither (x) contingent on the delivery of any future functionality or features nor (y) dependent on statements not set forth in the Agreement or any Service Order.
• Invoicing Terms
If the Service Order specifies that payment will occur by a method other than a credit card, Subscriber will provide a purchase order number in the applicable amount (or reasonable alternative proof of Subscriber’s ability to pay the fees specified in a Service Order), and promptly notify OFFERSHUB of any changes necessary for payment of an invoice. OFFERSHUB will invoice Subscriber either monthly or according to the billing frequency stated in the Service Order. Invoices to be paid by credit card are due on the invoice date, all other invoices are due net 30 days from the invoice date. If any invoiced amount is not received by OFFERSHUB by the due date, then without limiting OFFERSHUB’S rights or remedies: (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower and (b) OFFERSHUB may condition future subscription renewals and Service Orders on shorter payment terms. If Subscriber is paying for Services by credit card, Subscriber will provide OFFERSHUB’S authorized payment processer with valid credit card information and promptly notify OFFERSHUB’S authorized payment processor of any changes necessary to charge the credit card. The provision of credit card information to OFFERSHUB’S authorized payment processer authorizes OFFERSHUB, through its authorized payment processer, to charge the credit card for all Services specified in a Service Order, and any renewal subscription. Subscriber acknowledges that OFFERSHUB will not have access to Subscriber’s credit card information.
• Suspension of Service and Acceleration
If any amount owing by Subscriber is 30 or more days overdue (or 15 or more days overdue in the case of invoices to be paid by credit card), OFFERSHUB may, without limiting any rights and remedies, accelerate Subscriber’s unpaid fee obligations to become immediately due and payable, and block the provision of Services to Subscriber until the overdue amounts are paid in full. OFFERSHUB will give Subscriber at least 10 days’ prior notice that its account is overdue, in accordance with Section 19 (Manner of Giving Notice), before blocking Services to Subscriber.
• Payment Disputes
OFFERSHUB will not exercise any rights to block Services, accelerate payments, impose late charges or change payment terms under Section 7.2 (Invoicing Terms) and Section 7.3 (Suspension of Service and Acceleration) with respect to an overdue amount for so long as Subscriber is disputing the overdue amount in good faith. The parties shall cooperate diligently to resolve the dispute.
• Confidential Information
Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or, given the nature of the information and the circumstances of disclosure, should be understood to be confidential. Subscriber’s Confidential Information includes the Subscriber Data; OFFERSHUB’S Confidential Information includes the Services; and Confidential Information of each party includes but is not limited to the terms and conditions of the Agreement and all Service Orders, including pricing, business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by each party in connection with the Agreement. Confidential Information does not include information that: (a) is at the time of disclosure, or later becomes, generally known to the public through no fault of Receiving Party; (b) was known to the Receiving Party with no obligation of confidentiality prior to disclosure by Disclosing Party, as proven by records of Receiving Party; (c) is disclosed to Receiving Party by a third party who did not directly or indirectly obtain the information subject to any confidentiality obligation; or (d) is at any time independently developed by Receiving Party without use of Disclosing Party’s Confidential Information as proven by records of Receiving Party
• Protection of Confidential
information. Except as provided in Section 8.3 (Compelled Disclosure) Receiving Party shall not disclose or otherwise make available any Confidential Information of Disclosing Party to anyone except those of its employees, directors, attorneys, agents and consultants who: (a) need to know the Confidential Information in connection with the purpose of the Agreement and (b) who have previously agreed to be bound by confidentiality obligations no less stringent than those in the Agreement. Each party shall (x) safeguard all Confidential Information of the other party with at least the same degree of care (but no less than reasonable care) as it uses to safeguard its own confidential information and (y) not use any Confidential Information of the other party for any purpose outside the scope of the Agreement.