Terms of Service

2. Profit.co Responsibilities

2.1 Provision of Services

Profit.co will (a) make the Services purchased under an Order available to Customer pursuant to this Agreement; (b) provide the Services in accordance with any applicable uptime commitments set forth in Exhibit A to this Agreement, but will in no event, use less than commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for planned downtime of which, to the extent exceeding five continuous minutes, Profit.co will provide Customer at least 48 hours’ prior written notice, and: (c) provide support and maintenance as set forth in Exhibit B.

2.2 Implementation Services

If Profit.co is to provide Implementation Services, the Parties will execute a Statement of Work (“SOW”). Services shall be provided in a timely, efficient and professional manner to Customer’s reasonable satisfaction. All SOWs will reference this Agreement and be governed by its terms. Any changes to a SOW must be made in writing and signed by both Parties. The terms of this Agreement will govern in the event of a conflict between the SOW and this Agreement. Any expenses required to perform Implementation Services will be pre-approved in writing by Customer and incurred by Profit.co in accordance with the Customer.

2.3. Performance and Features

Profit.co represents and warrants that (a) the Services will perform materially in accordance with the commitments set forth in the exhibits to this Agreement, including service levels, or applicable Documentation and is free from frequent defects; and (b) Profit.co will not materially decrease the functionality of the Services during a subscription term.

2.4. Protection of Customer Data
Profit.co’s data security policy is available at https://www.profit.co/data-security/ and is updated from time-to-time. Before providing necessary access to Customer Data to a third party service provider, Profit.co will ensure that the third party maintains reasonable data practices not materially less protective than as described in the Customer Information Security Policy for maintaining the confidentiality and security of the Customer Data and preventing unauthorized access to or use of the Customer Data, which may be changed by Customer without notice to Profit.co. Additionally, Profit.co shall comply in full with its own security policies and will use commercially reasonable efforts to protect Customer Confidential Information using best industry practices.

2.5. Profit.co Personnel
Profit.co will be responsible for the performance of its personnel (including its employees, independent contractors and subcontractors) and their compliance with Profit.co’s obligations under this Agreement.
2.6. Compliance with Laws
Profit.co shall be responsible for Customer Data while in its possession and represents and warrants that it shall abide by all applicable local, state, national and foreign laws and regulations in connection with providing the Service, including those related to data privacy, international communications and the transmission of technical and Personal Data.

3. Use and Access Grant and Restrictions

3.1. Use and Access Grant
Profit.co hereby grants to Customer and its employees, independent contractors, subcontractors and agents, a worldwide, non-sublicensable, non-transferable (except as provided in Section 12.10, Assignment), non-exclusive subscription for Customer’s use of and access to the Service as specified in an associated Order, in accordance with the Documentation and for Customer’s business purposes. Profit.co and its Affiliates reserve all rights not expressly granted to Customers in this Agreement.

3.2. Customer Responsibilities
Customer will (a) be responsible for its users compliance with this Agreement; (b) be responsible for the accuracy, appropriateness and legality of Customer Data; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Profit.co promptly of any such unauthorized access or use; and (d) use the Services only in accordance with applicable laws and government regulations.

3.3. Usage Restrictions
Customer may not (a) make any Service available to, or use any Service for the benefit of, anyone other than Customer and its employees, independent contractors, subcontractors or agents; (b) upload, post, transmit, or otherwise make available to the Service any content that (i) Customer knows or reasonably should know is unlawful or tortious or (ii) that Customer does not have a right to make available under any applicable law or under contractual or fiduciary relationships, or that infringes or misappropriate any patent, trademark, trade secret, copyright or other proprietary rights; (c) sublicense, resell, time share or similarly exploit the Services; (d) knowingly upload, post, transmit, or otherwise make available any content or information designed to interrupt, interfere with, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) reverse engineer, modify, adapt, or hack the Services, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks; or (f) access the Service or the Documentation to build a competitive product or service.

4. Payment

4.1. Payment
Invoices will be submitted electronically or mail, according to the Customer’s standard processes. Accurate amounts are due within forty-five days of invoice receipt date.

4.2. Taxes
Customers will bear all taxes, duties, and other government charges imposed on Customer’s purchase of the Services, except taxes based on Profit.co’s income, employment or property. Profit.co will accept Customer claims of tax exemption accompanied by appropriate documentation.

4.3. Disputes
Customers may dispute an invoice in good faith by withholding only the disputed amount and notifying Profit.co within forty-five days of invoice receipt, specifying the nature of the dispute or mistake. The parties shall work together in good faith to promptly resolve the dispute. Upon resolution, Customer will promptly pay the amounts owed or Profit.co will promptly refund received monies to which it is not entitled, as the case may be. Failure to dispute amounts on a particular invoice will not constitute a general waiver of rights to dispute other invoices. No set-off, deduction, or cross-collateralization will be permitted.

5. Proprietary Rights

5.1. Reservation of Rights by Profit.co
Subject to the limited rights expressly granted in this Agreement, Profit.co reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Customers under this Agreement other than as expressly set forth herein.

5.2. Reservation of Rights by Customer
Subject to the limited rights expressly granted in this Agreement, Customer reserves all rights, title and interest in and to the Customer Data, including all related intellectual property rights. No rights are granted to Profit.co under this Agreement other than as expressly set forth herein.

5.3. Limited License to Customer Data
Customer grants Profit.co (including its third party hosting providers acting on its behalf, if applicable) a worldwide, non-exclusive, limited term license to access, use, copy, distribute, perform and display Customer Data only (a) to provide, maintain, and update the Services; (b) to prevent or address service or technical problems or at Customer’s request in connection with customer support matters; or (c) as compelled by law in accordance with the “Confidentiality” section below or as expressly permitted in writing by Customer.

6. Term and Termination

6.1. Term of Agreement

This Agreement commences on the Effective Date and continues until the subscriptions granted in accordance with this Agreement have expired or been terminated (the “Term”). Termination of this Agreement will terminate any and all Order under this Agreement unless the Parties agree in writing that an Order shall be subject to the terms and conditions of this Agreement until its completion.

6.2. Term of Subscriptions
Subscriptions commence on the start date specified in the applicable Order and continue for the subscription term specified therein. Profit.co will provide Customer ninety (90) day written notification of a renewal prior to the expiration of the current term. Any renewal will be made in writing and signed by both parties. The subscription pricing during any renewal term will be the same as that during the immediately prior term.

6.3. Termination for Cause

Either party may terminate this Agreement effective after thirty (30) days’ written notice if the other party materially breaches the Agreement and such breach is not cured within the notice period.
6.4. Customer Termination
Customer may terminate this Agreement upon written notice (i) in the event of a Force Majeure event that causes the Service to be unavailable for more than 15 calendar days; (ii) if Profit.co breaches its confidentiality obligations; (iii) if Profit.co breaches its obligations under Section 2.4 (Protection of Customer Data) or Section 2.6, (Compliance with Laws); or (iv) if Profit.co fails to meet the uptime requirements of the Services set forth in any exhibit to this Agreement or that is contained in the Documentation in any 3 consecutive months or 3 times in a rolling 6-month period.

6.5. Refund or Payment upon Termination

Upon any termination by Customer, Profit.co will promptly refund Customer any prepaid fees covering the remainder of the term of subscriptions in effect at the time of termination. Profit.co will terminate Customer’s access to or use of the Service after the effective date of termination and Profit.co’s right to process the Customer Data will terminate.

6.6. Transition Assistance

Beginning on the date that a party notifies the other party of an expiration or termination of this Agreement or an Order, and continuing for a period of up to 180 days after such expiration or termination, upon Customer’s request, Profit.co shall provide termination assistance services. The quality and level of performance during the termination assistance period shall not be degraded from the level of Service required during the Term.

7. Representations and Warranties; Disclaimer

7.1. Representation
Each party represents that it has validly entered into this Agreement and has the legal power to do so.

7.2. Intellectual Property
Profit.co represents and warrants that (a) the Services do not infringe on any third party intellectual property right; and (b) Profit.co owns all right, title and interest in and to the Services and Profit.co has the right to grant Customer all the rights set forth in this Agreement.

7.3. Disclaimer
EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE PROFIT.CO MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT PROFIT.CO DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

8. LIMITATION OF LIABILITY

8.1. Limitation of Liability
SUBJECT TO THE EXCEPTIONS IN 8.2 BELOW, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING WHERE THE APPLICABLE CLAIM IS BASED ON LOST GOODWILL, LOST PROFITS, LOSS OF USE OR PERFORMANCE OF ANY PRODUCTS, SERVICES OR OTHER PROPERTY, LOSS OR IMPAIRMENT OF DATA OR SOFTWARE, OR OTHERWISE, AND WHETHER THE APPLICABLE CLAIM ARISES OUT OF BREACH OR EXPRESS OR IMPLIED WARRANTY, CONTRACT, TORT, STRICT PRODUCT LIABILITY OF OTHERWISE, REGARDLESS OF WHETHER PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE REASONABLY FORESEEABLE. EACH PARTY’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THE SERVICES OR THIS AGREEMENT WILL BE LIMITED TO AN AMOUNT EQUAL THE SUM OF ALL FEES PAID AND PAYABLE BY CUSTOMER UNDER THIS AGREEMENT FOR SIX MONTHS.

8.2. EXCEPTIONS
THE LIMITATIONS OF LIABILITY IN 8.1 ABOVE WILL NOT APPLY TO (I) CLAIMS RELATING TO INFRINGEMENT OF EITHER PARTY’S INTELLECTUAL PROPERTY; (II) PROFIT.CO’S OBLIGATIONS SET FORTH IN SECTION 2.4 (PROTECTION OF CUSTOMER DATA), SECTION 2.6 (COMPLIANCE WITH LAWS) SECTION 9 (INDEMNIFICATION) AND SECTION 10 (CONFIDENTIALITY); OR (III) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

9. Indemnification

9.1. Intellectual Property Indemnification
Profit.co shall indemnify, defend and hold harmless Customer, its Affiliates, and their respective officers, directors, employees, contractors, successors and assigns from and against any and all third party claims, actions, demands, costs and expenses, including reasonable attorneys’ fees, alleging that the use of the Services or Documentation infringes or misappropriates a third party’s patent, copyright, trademark, trade secret or other intellectual property right. Whenever Profit.co is responsible under the preceding sentence, Profit.co may, at its option, either procure the right for Customer to continue using, or may replace or modify the alleged infringing Service so that the Service becomes non-infringing. If those alternatives are not reasonably achievable, Profit.co may terminate the affected Service without termination liability to Customer and refund to Customer all fees on a prorated basis.

9.2. General Indemnification
Profit.co shall defend, indemnify and hold harmless Customer, its Affiliates, and their respective officers, directors, employees, contractors, successors and assigns from and against any and all claims, actions, demands, costs and expenses, including reasonable attorneys’ fees, from and against claims (i) arising from breach of a representation, warranty or material obligation of this Agreement; or (ii) arising from Profit.co’s negligence or willful misconduct.

9.3. Indemnification Procedure
The party seeking indemnification will promptly notify the other party of the claim and cooperate in defending claims. Failure to provide timely notice or reasonable assistance will relieve the indemnifying party of its indemnity obligations hereunder to the extent the indemnifying party has been materially prejudiced. The indemnifying party will have full control and authority over the defense, including appeals, negotiations, and any settlement, except that: (a) it may not make an admission of fault on behalf of the other party without written consent, (b) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and an appropriate confidentiality agreement prohibiting disclosure of the terms of such settlement must be included; and (c) the other party may join in the defense with its own counsel at its own expense. The indemnifying party will (i) retain and pay attorneys and court costs as part of its defense obligation, (ii) reimburse the other party for reasonable out‐of‐pocket expenses that it incurs in providing assistance, and (iii) pay the amount of any resulting adverse final judgment (including any award of attorneys’ fees, costs and punitive damages), penalties, sanctions or settlement.

10. Confidentiality

10.1. Definition of Confidential Information
As used herein, “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 or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer shall include Customer Data; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.

10.2. Protection of Confidential Information
The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (a) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (b) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement. Neither party shall disclose the terms of this Agreement or any Order to any third party other than its Affiliates, its legal counsel and accountants or in confidence in connection with a third party due diligence request supporting a financing, financial covenant compliance or non-ordinary course of business corporate transaction.

10.3. Compelled Access or Disclosure
The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the access or disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information. Each Party acknowledges the economic value of the other Party’s Confidential Information, and that irreparable harm could result if any obligation under this Section is not performed by a Receiving Party. Disclosing Party shall be entitled to seek such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction to prevent disclosure of its Confidential Information. Disclosing Party shall not be deemed to have made an election of remedies by obtaining, or seeking to obtain, injunctive or equitable relief.

10.4. Return of Confidential Information
Confidential Information is the property of the Disclosing Party. Within twenty days of Disclosing Party’s written request, Receiving Party shall return to Disclosing Party or destroy, at Disclosing Party’s option, Confidential Information, including all copies thereof and materials containing the same. Within ten days of the Disclosing Party’s written request, the Receiving Party shall certify in writing that it has satisfied its obligations under this Section. Notwithstanding the foregoing, nothing in this Agreement shall be construed to require either party to return or destroy: (a) Confidential Information that has been electronically archived in the ordinary course of business for disaster recovery and similar purposes, or (b) Confidential Information that the receiving party is required to retain under applicable law; provided in either case that such retained Confidential Information shall not be disclosed or used for purposes contrary to the terms of this Agreement.

11. Disaster Recovery

11.1 Disaster Recovery Plan
Upon request by Customer, Profit.co shall submit a detailed plan which is reasonably designed to allow Profit.co to continue to provide all Services without any material interruption in the event of a Force Majeure event or disaster (the “Disaster Recovery Plan”). If there is a disaster, including any force majeure event, Profit.co shall not increase its fees under this Agreement or charge Customer any additional fees and if Services hereunder are impacted as a result, any recurring charges shall be adjusted in a manner such that Customer is not responsible for the payment of any charges for Services that Profit.co fails to provide.

12. General Provisions

12.1. Publicity
Neither party shall have the right to use the other party’s name, logo, trademark or other proprietary marks in connection with this Agreement, except as expressly authorized in writing by the other party.

12.2. Force Majeure
Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations due to events beyond the reasonable control of such party, which may include floods, fires, hurricanes, acts of God, war, terrorism, or governmental action. When a party’s delay or non-performance continues for a period of five days or more, the other party may terminate the Agreement or affected Order without penalty. Any pre- paid amounts shall be refunded to the Customer on a prorated basis. The act or omission of a third-party contractor shall not be considered a force majeure event.

12.3. Insurance
During the term of the Agreement, Profit.co will, at its cost, maintain (a) industry standard insurance coverages, including, without limitation, general commercial liability, worker’s compensation, technology errors and omissions/information security, and automobile policies, and (b) and any other insurance required by law in any state or country where Profit.co provides Services under this Agreement. All policies will be written by reputable national insurance carriers.

12.4. Anti-Corruption Compliance
Profit.co agrees to abide by the federal anti corruption laws that are in effect and updated from time-to-time.

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

12.6. No Third-Party Beneficiaries
There are no third-party beneficiaries to this Agreement.
12.7. Notices
All notices hereunder will be in writing to the addresses below the signature line. Notices must be provided as follows, and will be deemed given: (i) one day after deposit with an overnight courier, charges prepaid; (ii) three days after mailing by first class, certified, or registered U.S. Mail, charges prepaid, return receipt requested; and (iii) when delivered by hand with confirmed receipt.
12.8. Waiver
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

12.9. Severability
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.10. Assignment
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, Customer may assign this Agreement in its entirety without Profit.co consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any other assignment or transfer will be void and of no effect. Subject to the foregoing, this Agreement shall bind and ensure to the benefit of the parties, their respective successors and permitted assigns.

12.11. Governing Law, Venue
This Agreement and all acts, transactions, rights, and obligations relating thereto will be governed by and construed under the laws of the State of Delaware, without giving effect to principles of conflicts of law. All disputes will be resolved exclusively in the federal or state courts located in Delaware, and each Party consents to the personal jurisdiction and exclusive venue of those courts for that purpose. The Parties acknowledge that there could be certain disputes between them that should be resolved, if possible, in a manner that preserves the on-going business relationship between the Parties.

12.12. Escalation Process
If the day-to-day relationship managers are unable to resolve an issue arising under the Agreement within five business days of the written initiation of the dispute, they will escalate the issue to the senior level executives responsible for the overall relationship. The representatives will use good faith efforts to promptly meet and diligently work together to resolve the issue. If the representatives are unable to resolve such issue within ten business days, then either Party may provide written notice within five business days thereafter, to institute mandatory, non-binding mediation pursuant to Section 12.13 before resorting to legal action. If neither Party initiates mediation, then each Party has the right to pursue its contract, legal and equitable remedies provided, however, that the mediation process will not limit immediate seeking of injunctive relief.

12.13. Mediation
If a party initiates mediation, the Parties agree first to try in good faith to settle the dispute by mediation administered by the JAMS for up to seven business days (in session, to commence within fifteen business days after receipt of the mediation notice) before resorting to further legal remedies. The Parties will participate in the mediation in good faith, and will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the Parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the Parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. The provisions of this clause may be enforced by any court of competent jurisdiction, and the Party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorneys’ fees, to be paid by the Party against whom enforcement is ordered.

12.14. Subcontracting
Profit.co shall be responsible and legally accountable for the work and activities of its subcontractors, including compliance with the terms of this Agreement.

12.15. Surviving Provisions
All provisions of this Agreement regarding payment, confidentiality, indemnification, limitations of liability, proprietary rights and such other provisions that by fair implication require performance beyond the term of this Agreement shall survive expiration or termination of this Agreement until fully performed or otherwise are inapplicable.

Exhibit A: Service Level

Profit.co shall use commercially reasonable efforts to maintain availability of the Services it provides under this Agreement 99.9% of the time. In the event Profit.co fails to meet this standard, in addition to the credits due Customer as set forth in this Exhibit, Customer has the right to terminate any Order or the Agreement in accordance with the Termination section of the Agreement.

1. Unavailability
“Unavailability” means the period during which the Services are not functioning in a manner that permits Customer access and use of the Services in accordance with the Documentation, the Agreement and/or any applicable Order. Unavailability is measured over each calendar quarter and is based on total outage time incurred by the customer. Unavailability is deemed to have occurred from the time that Unavailability is reported to Profit.co until the affected Service is available to transmit and receive Customer Data.

2. Credits
Instances of Unavailability, beyond the SLA will result in the following credits due to Customer (in addition to any other remedies it might have):
(i) For aggregate Unavailability of between three and four hours in a calendar quarter, Profit.co shall credit Customer (to be applied to other fees payable under this Agreement) an amount equal to 5% of one months’ worth of fees for the Services.
(ii) For aggregate Unavailability of beyond four hours in a calendar quarter, Profit.co shall credit Customer (to be applied to other fees payable under this Agreement) an amount equal to 10% of one months’ worth of fees for the Services.
3. Reporting
If Customer reasonably believes that an instance of Unavailability has occurred, Customer will notify Profit.co within 45 days after the end of the calendar quarter in question. Within 14 days thereafter, Profit.co will provide factual reports to Customer regarding all relevant outages during such quarter which sets forth the total Unavailability during such period. If Customer elects to make a claim for a credit, it must make such claim during the term of the relevant Order or within 180 days of its termination. Failure by Customer to insist on a remedy with respect to any one or more instances of such Unavailability will not constitute a waiver of its right to insist on the same with respect to subsequent instances of Unavailability. The dollar amount of any credits that cannot be applied to the Services due to termination of the Services in question shall be paid to the Customer.

4. Credit Exceptions
Credits will not be given for Unavailability that is caused by the following circumstances:

• Customer’s acts or omissions
• Emergency maintenance
• Services upgrade maintenance windows of which Customer has been provided advance written notice
• Internet outages
• Force Majeure Events

5. Classification of Problems
Profit.co shall classify each problem encountered by Customer according to the following definitions and will use reasonable commercial efforts to address the problem in accordance with such classification according to the table below.

Exhibit B: Support and Maintenance

As part of the regular subscription, standard support through chat, email and phone is included. Software deployments to production instances happen on active mode without interruptions to users. On occasion where major maintenance is involved, service will be unavailable. In such situations, we pre announce such unavailability and usually schedule them for the weekends.