Terms of Service

These Terms of Service together with its Exhibits (the "Agreement") are entered into by and between Sprootal ("Provider") and the entity or person placing an order for or accessing any Services (the "Customer"). If you are accessing or using the Services 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 any Services (as defined below) or (b) the effective date of the first Order Form referencing this Agreement.

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, 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 ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.

1. Definitions

Other than the terms defined in the body of this Agreement, these terms have the following meanings:

• "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
• "Contractor" means a third-party contractor performing services on Customer's behalf.
• "Customer Data" means any data, content, or materials that Customer submits to the Services.
• "Documentation" means the Provider's standard user documentation for the Services.
• "Initial Term" means the initial subscription period as specified in the Order Form.
• "Intellectual Property Rights" means all patent rights, copyrights, trademark rights, trade secret rights, and any other intellectual property rights recognized in any country or jurisdiction.
• "Laws" means all applicable local, state, federal, and international laws, regulations, and conventions.
• "Order Form" means a written or electronic form to order the Services referencing this Agreement.
• "Party" means either the Provider or the Customer; the "Parties" means both the Provider and the Customer.
• "Permitted User" means an employee or a Contractor of the Customer or its Affiliate who is authorized to access the Services.
• "Renewal Term" means successive periods equal to Initial Term, beginning after the then-current Subscription Term.
• "Sensitive 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) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act ("HIPAA"), if applicable; or (iii) any other personal data of an EU citizen deemed to be in a "special category" (as identified in the EU General Data Protection Regulation or any successor Laws).
• "Services" means the Provider's proprietary software-as-a-service solution, including all products, services, and software provided by the Provider to the Customer.
• "Subscription Term" means either the Initial Term or then-current Renewal Term.
• "Support" means standard technical support and maintenance as further set forth under the Service Level Agreement attached to the Order Form (if applicable).
• "Taxes" means any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of the Provider.
• "Third-Party Platform" means any software, software-as-a-service, data sources or other products or services not provided by the Provider that are integrated with or otherwise accessible through the Services.

2. Provider Services

2.1. Provision of Services

The Services are provided on a subscription basis for a Subscription Term. The Customer will purchase, and the Provider will provide the Services identified and agreed upon in the applicable Order Form.

2.2. Access to Services

The Customer may access and use the Services solely for its own benefit and in accordance with the terms and conditions of this Agreement, the Documentation, and any scope of use restrictions designated in the applicable Order Form. Use of and access to the Services is permitted only by Permitted Users. If Customer is given API keys or passwords to access the Services on the Provider's systems, the Customer will require that all Permitted Users keep API keys, user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons, and may not be shared. If the Customer is accessing the Services using credentials provided by a third party (e.g., Google), then the Customer will comply with all applicable terms and conditions of such third-party regarding provisioning and use of such credentials. The Customer will be responsible for all actions taken using Customer's accounts and passwords. If a Permitted User who has access to a user ID is no longer an employee or Contractor of the Customer, then the Customer will promptly delete such user ID and otherwise terminate such Permitted User's access to the Services.

2.3. Contractors and Affiliates

The Customer may permit its Affiliates and Contractors to serve as Permitted Users, provided the Customer remains responsible for compliance by such individuals with the terms of this Agreement.

2.4. General Restrictions

The Customer will not (and will not permit any third party to): (a) rent, lease, provide access to, or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law; (d) copy, modify, or create derivative works based on the Services; (e) remove or obscure any proprietary or other notices contained in the Services; (f) publicly disseminate information regarding the performance of the Services; or (g) use the Services for competitive analysis or to build competitive products.

3. Customer Data

3.1. Customer Data

The Customer retains all right, title, and interest in and to Customer Data. Subject to the terms of this Agreement, the Customer grants the Provider a non-exclusive, worldwide, royalty-free license to use Customer Data solely to provide the Services to the Customer.

3.2. Provider's Use of Customer Data

The Provider may use Customer Data to provide and improve the Services, to develop new products and services, and for other purposes described in the Provider's Privacy Policy.

3.3. Data Security

The Provider will implement and maintain reasonable security measures designed to protect Customer Data from unauthorized access, use, or disclosure.

3.4. Customer Obligations

(a) The Customer represents and warrants to the Provider that the Customer has all necessary rights, consents, and permissions to collect, share, and use all Customer Data as contemplated in this Agreement and that no Customer Data will violate or infringe (i) any third party Intellectual Property Rights or publicity, privacy, or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreements governing Customer's accounts with any Third-Party Platforms.

(b) No Sensitive Personal Information. Except as otherwise expressly agreed between the Parties in writing, the Customer specifically agrees not to use the Services to collect, store, process, or transmit any Sensitive Personal Information. The Customer acknowledges that the Provider is not a payment card processor and that the Services are not PCI DSS compliant.

(c) Compliance with Laws. The Customer agrees to comply with all applicable Laws in its use of the Services. The Customer will not engage in any unsolicited advertising, marketing, or other activities using the Services that violate applicable Laws.

3.5. Indemnification by Customer

The Customer will defend the Provider from and against any claim arising from or relating to any Customer Data, Customer's use of a Third Party Platform, or Customer's use of the Services in violation of Laws and will indemnify and hold the Provider harmless from and against any damages and costs awarded against the Provider or agreed in settlement by the Customer (including reasonable attorneys' fees) resulting from such claim.

3.6. Anonymized Data

The Provider may collect and use anonymized and aggregated data derived from Customer Data for purposes of improving and enhancing the Services and for other development, diagnostic, and corrective purposes in connection with the Services.

4. Third-Party Platforms

When Customer integrates the Services with any Third-Party Platform, the Customer authorizes the Provider to access Customer's accounts with such Third-Party Platform for the purposes described in this Agreement. The Customer is responsible for complying with any relevant terms and conditions of the Third-Party Platform and for maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. Customer acknowledges and agrees that the Provider has no responsibility or liability for any Third-Party Platform, or how a Third-Party Platform uses or processes Customer Data after such is exported to a Third-Party Platform. The Provider cannot ensure that the Services will maintain integrations with any Third-Party Platform and the Provider may disable integrations of the Services with any Third-Party Platform at any time with or without notice to the Customer.

TO THE EXTENT THE CUSTOMER USES FEATURES IN THE SERVICES THAT INTEGRATE WITH A THIRD-PARTY PLATFORM AND THE CUSTOMER REQUESTS THAT THE PROVIDER INTEGRATE WITH SUCH THIRD-PARTY PLATFORM'S BETA OR PRE-RELEASE FEATURES, THE PROVIDER WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE PROVIDER'S PARTICIPATION IN SUCH THIRD-PARTY BETA RELEASES OR CUSTOMER'S USE OF SUCH INTEGRATED FEATURES.

5. Support and Professional Services

Subject to the terms of this Agreement and the applicable Order Form, the Provider will provide the Customer with Support and any Professional Services as specified in the Order Form.

6. Ownership

6.1. Provider's Technology

This is a subscription agreement for access to and use of the Services. The Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words "purchase", "sale", or like terms in this Agreement, no ownership rights are being conveyed to the Customer under this Agreement. The Customer agrees that the Provider and its licensors retain all right, title, and interest (including all Intellectual Property Rights) in and to the Services, the Documentation, and any other technology provided by the Provider.

6.2. Feedback

If the Customer provides any suggestions, ideas, enhancement requests, feedback, or other information relating to the Services ("Feedback"), the Customer grants the Provider a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use and incorporate into the Services any Feedback.

7. Fees and Payment

7.1. Fees

The Customer will pay all fees specified in the applicable Order Form in accordance with the payment terms set forth therein.

7.2. Fees and Payment

Except as otherwise set forth in Section 9 (Limited Warranty), Section 13 (Indemnification), or Section 16.7 (Modifications to this Agreement), all fees are non-refundable. The Customer is responsible for paying all Taxes, and all Taxes are excluded from any fees set forth in the applicable Order Form. Any late payments will 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.

7.3. Suspension of Service

Without limiting the Provider's termination or other rights hereunder, the Provider reserves the right to suspend Customer's access to the applicable Services (and any related Professional Services and Support) in whole or in part, without liability to the Customer: (i) if Customer's account is thirty (30) days or more overdue; (ii) for Customer's breach of Sections 2.4 (General Restrictions) or 3.4 (Customer Obligations); or (iii) to prevent harm to other customers or third parties or to preserve the security, availability or integrity of the Services. Unless this Agreement has been terminated, the Provider will restore Customer's access to the Services promptly after the Customer has resolved the issue requiring suspension.

8. Term and Termination

8.1. Term

This Agreement is effective as of the Effective Date and continues until all Subscription Terms have expired or been terminated.

8.2. Termination for Cause

Either party may terminate this Agreement (including all Order Forms) if the other party: (a) fails to cure any material breach of this Agreement 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.

8.3. Effect of Termination

Upon expiration or termination of this Agreement: (a) the Customer's right to use the Services will terminate; (b) the Provider will delete Customer Data within thirty (30) days of termination; and (c) each party will return or destroy all Confidential Information of the other party in its possession.

8.4. Survival

The following Sections will survive any expiration or termination of this Agreement: 1 (Definitions), 3.1 (Customer Data), 3.5 (Indemnification by Customer), 3.6 (Anonymized Data), 6 (Ownership), 7.2 (Fees and Payment), 8 (Term and Termination), 9 (Limited Warranty), 12 (Limitation of Remedies and Damages), 13 (Indemnification), 14 (Confidential Information), and 16 (General Terms).

9. Limited Warranty

9.1. Limited Warranty

The Provider warrants, for Customer's benefit only, that the Services will operate in substantial conformity with the applicable Documentation and in accordance with applicable law. The Provider's sole liability (and Customer's sole and exclusive remedy) for any breach of this warranty will be, at no charge to the Customer, for the Provider to use commercially reasonable efforts to correct the reported non-conformity, or if the Provider determines such remedy to be impracticable, either Party may terminate the applicable Subscription Term and the Customer will receive as its sole remedy a refund of any fees the Customer has pre-paid for use of such Services for the terminated portion of the applicable Subscription Term.

The limited warranty set forth in this Section will not apply: (i) unless the Customer makes a claim within thirty (30) days of the date on which the Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications, or third-party hardware, software, or services, or (iii) to use provided on a no-charge, trial, or evaluation basis.

9.2. Warranty Disclaimer

EXCEPT FOR THE LIMITED WARRANTY IN SECTION 9.1, ALL SERVICES, SUPPORT, AND PROFESSIONAL SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE", THE PROVIDER AND ITS AFFILIATES DISCLAIM ALL OTHER WARRANTIES, CONDITIONS, GUARANTEES, OR UNDERTAKINGS, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. THE PROVIDER DOES NOT WARRANT THAT CUSTOMER'S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

10. Data Protection

The Provider will process Customer Data in accordance with its Privacy Policy. To the extent that the Provider processes any personal data on behalf of the Customer, the Provider will do so as a data processor acting on Customer's instructions.

11. Insurance

The Provider will maintain commercially reasonable insurance coverage appropriate for its business operations.

12. Limitation of Remedies and Damages

12.1. Consequential Damages Waiver

EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS AFFILIATES) 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 INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

IF THE CUSTOMER IS IN THE EUROPEAN ECONOMIC AREA, REFERENCES TO "INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES" SHALL ALSO MEAN ANY LOSSES OR DAMAGES WHICH: (A) WERE NOT REASONABLY FORESEEABLE BY BOTH PARTIES; (B) WERE KNOWN TO THE CUSTOMER BUT NOT TO THE PROVIDER; OR (C) WERE REASONABLY FORESEEABLE BY BOTH PARTIES BUT COULD HAVE BEEN PREVENTED BY THE CUSTOMER SUCH AS, FOR EXAMPLE, LOSSES CAUSED BY VIRUSES, MALWARE, OR OTHER MALICIOUS PROGRAMS, OR LOSS OF OR DAMAGE TO CUSTOMER DATA. SPECIFICALLY, PROVIDER IS NOT RESPONSIBLE FOR ANY ADVERSE ACTION TAKEN AGAINST THE CUSTOMER BY A THIRD-PARTY PLATFORM.

12.2. Liability Cap

EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), EACH PARTY'S ENTIRE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY THE CUSTOMER TO THE PROVIDER UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO LIABILITY.

12.3. Limitations to Exclusions

NOTHING IN THIS SECTION SHOULD BE CONSTRUED AS LIMITING A PARTY'S LIABILITY FOR DEATH OR BODILY HARM, WILFUL MISCONDUCT, OR GROSS NEGLIGENCE. ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW OTHER EXCLUSIONS OR LIMITATIONS OF LIABILITY SPECIFIED IN THIS SECTION. IN SUCH CASE THESE EXCLUSIONS AND LIMITATIONS WILL BE ENFORCED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

12.4. Excluded Claims

"Excluded Claims" means any claim arising (a) under Section 2.4 (General Restrictions); (b) Section 3.4 (Customer Obligations), Section 3.5 (Indemnification by Customer); or (c) from a party's breach of its obligations in Section 14 (Confidential Information) (but excluding claims relating to Customer Data).

12.5. Nature of Claims and Failure of Essential Purpose

The parties agree that the waivers and limitations specified in this Section 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.

13. Indemnification

The Provider will defend the Customer from and against any claim by a third party alleging that the Services infringes any Intellectual Property Right and will indemnify and hold the Customer harmless from and against any damages and costs finally awarded against the Customer or agreed in settlement by the Provider (including reasonable attorneys' fees) resulting from such claim, provided that the Provider will have received from the Customer: (i) prompt written notice of such claim; (ii) the exclusive right to control and direct the investigation, defense and settlement of such claim; and (iii) all reasonably necessary cooperation of the Customer.

If any portion of the Services is held to infringe and the use of the Services is enjoined, the Provider shall, at its sole option and expense: (a) obtain the right to continue using the Services; (b) replace the Services with non-infringing software or services which are substantially equivalent in function; (c) modify the Services so that they are no longer infringing; or (d) terminate this Agreement and refund any pre-paid fees for the terminated portion of the Subscription Term.

THIS SECTION SETS FORTH THE PROVIDER'S AND ITS AFFILIATES' SOLE LIABILITY AND THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

14. 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 (the "Disclosing Party") constitute the confidential property of the Disclosing Party (the "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 Provider's Technology, performance information relating to the Services, and the terms and conditions of this Agreement will be deemed Confidential Information of the Provider without any marking or further designation.

Except as expressly authorized herein, the Receiving Party will (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, provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section.

15. Publicity

The Customer agrees to participate in reasonable marketing activities that promote the benefits of the Services to other potential customers and to use of Customer's name and logo on the Provider's website and in the Provider's promotional materials. The Customer agrees that the Provider may disclose the Customer as a customer of the Provider, including on the Provider's public website. The Provider agrees that any such use shall be subject to the Provider complying with any written guidelines that the Customer may deliver to the Provider regarding the use of its name.

16. General Terms

16.1. Assignment

This 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 either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party's assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void.

16.2. Governing Law

This Agreement will be governed by and construed in accordance with the laws of the Netherlands, without giving effect to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.

16.3. Dispute Resolution

(a) Informal Resolution. In the event of any controversy or claim arising out of or relating to this Agreement ("Dispute"), the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties.

(b) Escalation. If the parties do not reach settlement within a period of sixty (60) days after the Initial Notice of Dispute, then the Dispute shall subsequently be resolved by litigation as set forth below.

(c) Litigation. Any lawsuit will be filed in the courts located in the Netherlands, and both Parties consent to personal jurisdiction in such courts for resolution of Disputes and agree that such venue is appropriate.

(d) Injunctive Relief. Notwithstanding the above provisions, the Provider may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

16.4. Notice

Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch; (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; or (iv) next business day if sent by email.

16.5. Amendments; Waivers

No supplement, modification, or amendment of this Agreement will be binding, unless (i) modified in accordance with Section 16.7; or (ii) executed in writing by a duly authorized representative of each party to this Agreement. 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.

16.6. 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.

16.7. Modifications to this Agreement

From time to time, the Provider may modify the terms of this Agreement. The Provider will use reasonable efforts to notify the Customer of any material modifications. If the Customer does not agree to the modified terms, the Customer may terminate this Agreement upon written notice to the Provider within thirty (30) days of the modification.

16.8. Severability

If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.

16.9. Force Majeure

Neither party will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond such party's reasonable control, including acts of God, labor disputes, industrial disturbances, acts of terrorism, earthquakes, or other catastrophic events.

16.10. Independent Contractors

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

16.11. No Third-Party Beneficiaries

There are no third-party beneficiaries to this Agreement. Neither party shall make any representation or commitment on behalf of the other party.

16.12. Export Control

In its use of the Services, the Customer agrees to comply with all export and import laws and regulations of the applicable jurisdictions. Without limiting the foregoing, (i) the Customer represents and warrants that it is not listed on any US, UK, or EU government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a US, UK, or EU government embargo or that has been designated by the US, UK, or EU government as a "terrorist supporting" country, (ii) the Customer will not (and will not permit any of its users to) access or use the Services in violation of any US, UK, or EU export embargo, prohibition or restriction, and (iii) the Customer will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.

16.13. Counterparts

This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.