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TERMS OF SERVICE

These Terms of Service (“Terms of Service” or “Terms”), together with an Order Form when present, govern a customer’s use of https://www.propeldata.com the Propel APIs, and Propel Console (the “Platform”) owned and operated by Propel Data Cloud, Inc(“Propel”, “our”, “us” or “we”). “You”, “your” or “Customer” means the entity that uses the Platform. Customer and Propel may be referred to in these Terms as a “Party” and collectively as the “Parties.” 

By signing up to the Platform or by signing an Order Form (defined below) with Propel, the Customer agrees to comply with and be bound by these Terms. These Terms, together with any Order Form(s), constitute the entire agreement between Propel and Customer (the “Agreement”).

1.1.“Affiliate.” Any business entity controlling, controlled by, or under common control with a Party hereunder. The Customer will be responsible for all acts and omissions of its Affiliates as if they were “Customer” hereunder.

1.2.“Confidential Information” means (i) the Agreement, (ii) with respect to Propel, non-public aspects of the Propel technology, the Platform, and additional services provided by Propel (and the operation thereof), and Propel’s business, technical or financial information and data, (iii) with respect to the Customer, Customer Data, and non-public aspects of Customer’s technology, computer programs, and business, technical and financial information and data.

1.3.“Customer Data.” Non-public data provided by Customer to Propel to enable the provision of the Platform and other services.

1.12.“Propel Technology.” The computer hardware, software, and other tangible equipment and intangible computer code necessary to deploy and make available the Platform.

1.13.“Order Form.” Any order form referencing and incorporating these Terms, which shall be in writing, signed by both Parties, and shall specify the products or services to be purchased or licensed by Customer from Propel.

1.14.“Service Term.” The period of time indicated in an Order Form beginning upon an Order Effective Date and ending on the last day of the Service Term set forth in the Order Form.

Subject Customer’s compliance with the terms and conditions hereof, during the Service Term set forth in the applicable Order Form, Propel hereby grants to the Customer a non-exclusive, non-sublicensable, non-transferrable right to internally access and use the Platform for Customer’s own benefit (and only in accordance with all documentation provided by Propel).

In the event of any breach by Customer of any of the foregoing, in addition to any other remedies available at law or in equity, Propel will have the right to immediately suspend Customer’s access to the Platform if deemed necessary by Propel to prevent any harm to Propel or its business. Propel will provide notice to the Customer and an opportunity to cure, if practicable, depending on the nature of the breach. Once cured to Propel’s satisfaction, Propel will restore access to the Platform.Customer shall not, nor shall it permit or assist others to,

  1. (i) abuse or fraudulently use the Platform;
  2. (ii) process or permit to be processed the data of any third party that is not expressly authorized herein to access and use the Platform;
  3. (iii) attempt to copy, reverse-engineer, decompile, disassemble, create a derivative work from, or otherwise attempt to derive the source code of any part of the Platform or the Propel Technology;
  4. (iv) access, alter, or destroy any information of any customer of Propel by any fraudulent means or device, or attempt to do so; 
  5. (v) use the Platform or Propel Technology to provide services to any third parties, or to help develop any competing products or services; or
  6. (vi) use the Platform in violation of any applicable law or regulation or any of its agreements with third parties, or otherwise outside of the scope expressly permitted herein.

In the event of any breach by Customer of any of the foregoing, in addition to any other remedies available at law or in equity, Propel will have the right to immediately suspend Customer’s access to the Platform if deemed necessary by Propel to prevent any harm to Propel or its business. Propel will provide notice to the Customer and an opportunity to cure, if practicable, depending on the nature of the breach. Once cured to Propel’s satisfaction, Propel will restore access to the Platform.

Customer shall be solely responsible for (a) providing all Internet access, hardware, browsers, and other software necessary to access and login and use the API of the Platform, and (b) acquiring and maintaining technology and procedures for maintaining the security of its link to the Internet, its account and passwords, and for all uses of Customer’s account. Customer hereby grants to Propel a non-exclusive, worldwide, royalty-free right to process use, copy, store, transmit, modify, create derivative works of and display the Customer Data during the Service Term, solely to the extent necessary to provide the Platform and any related services to Customer hereunder.

Propel shall implement reasonable security procedures consistent with prevailing industry standards to protect Customer Data processed by the Platform from unauthorized access. Propel reserves the right to internally monitor Customer’s usage of the Platform for the purposes of troubleshooting and maintaining and improving the Platform.

6.1. Customer shall pay Propel the fees indicated in the Order Form (and, as applicable, the Propel Service Consumption Table). Customer will pay invoices within thirty (30) days of the date of invoice, unless otherwise set forth in the Order Form. Any overdue amounts shall be subject to a late charge of 1.5% per month or the highest rate permitted by applicable law, whichever is lower, on such invoice until fully paid. In addition, Customer will reimburse Propel for all costs of collection (including, without limitation, attorneys’ fees). Any amounts due hereunder are exclusive of, and the Customer shall be responsible for, all sales taxes, value added taxes, duties, use taxes, withholdings and other governmental assessments, excluding taxes based on the net income of Propel, unless the Customer provides to Propel a valid tax-exempt certificate.

7.1. Propel
Propel retains all right, title and interest in and to the Platform, the Propel Technology, Propel’s Confidential Information, and all improvements, enhancements or modifications thereto (including all intellectual property rights therein). No intellectual property rights are assigned or transferred by Propel in connection with this Agreement.

7.2. Customer
Customer retains all right, title and interest in and to the Customer Data and Customer’s Confidential Information.

7.3. Feedback
Customer may choose to provide Propel with suggestions, ideas, enhancement requests, feedback, recommendations or other information relating to the Platform (“Feedback”) and if Customer does provide Propel with Feedback, Propel shall own all right, title and interest in such Feedback (and Customer shall and hereby does make all assignments necessary to achieve such ownership).

Each Party (“Owner”) may disclose Confidential Information to the other Party (“Recipient”) pursuant to this Agreement.

8.1. Restrictions on Use and Disclosure
Recipient may use Confidential Information of Owner only for the purposes of the Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case, using no less than a reasonable degree of care. Recipient may disclose Confidential Information received hereunder only to its employees or contractors who have a need to know for purposes of this Agreement and who are bound by signed, written agreements to protect the received Confidential Information from unauthorized use and disclosure.

8.2.Exclusions
Confidential Information does not include information that:

  1. (i) is in the possession or control of Recipient without restriction at the time of its disclosure hereunder;
  2. (ii) is, or becomes, publicly known through no wrongful act of Recipient;
  3. (iii) is received by Recipient from a third party free to disclose it without obligation to Owner, or
  4. (iv) is independently developed by Recipient without reference, reliance or incorporation of the Owner’s Confidential Information.
    Each Party (“Owner”) may disclose Confidential Information to the other Party (“Recipient”) pursuant to this Agreement.

The Recipient may disclose Confidential Information of Owner pursuant to the requirements of a governmental agency or by operation of law, provided that such Recipient gives Owner written notice thereof as soon as practicable and reasonably cooperates with Owner to contest such disclosure. In addition, either Party may confidentially disclose this Agreement to an actual or potential financing source or acquirer.

8.3.Retention and Destruction of Confidential Information
At the Owner’s request, the Recipient will return to the Owner (or, at the Owner’s request, destroy) all of Owner’s Confidential Information. After ninety (90) days after termination of this Agreement, Propel may delete all your Confidential Information and other Customer Data.

9.1. By Customer
Customer represents and warrants that it has sufficient authority to enter into this Agreement and that it has sufficient rights in the Customer Data to authorize Propel to process, distribute and display the Customer Data as contemplated by this Agreement, and that the Customer Data does not infringe the rights of any third party. Customer will promptly inform Propel if it has reason to believe that the former representations and warranties are no longer true.

9.2. By Propel
Propel warrants that it has sufficient authority to enter into this Agreement and that it has not entered into any other agreement, obligation or restriction which would prohibit the provision of services to Customer. Propel further warrants that the Platform will conform to all material operational features as described in the documentation for the Platform (“Product Warranty”). Customer’s sole and exclusive remedy for breach of the Product Warranty shall be for Propel to use commercially reasonable efforts to correct the applicable issue(s) within a reasonable period of time. 

9.3.Disclaimer
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 9, PROPEL AND ITS AFFILIATES, SUBCONTRACTORS AND THIRD-PARTY LICENSORS MAKE NO OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. PROPEL DOES NOT WARRANT THE PLATFORM WILL BE FREE OF ERRORS OR DEFECTS.

The Agreement will commence on the Effective Date of the sign up or of an Order Form and continue in full force and effect for the Service Term indicated in such Order Form. Each Party may terminate this Agreement upon thirty (30) days prior written notice to the other Party (ten (10) days in the case of non-payment) if the other Party materially breaches this Agreement and fails to correct the breach within such notice period (provided that, such notice provides sufficient detail regarding the breach and expressly states the intent to terminate if not cure). In the event of any termination, all amounts due under an Order Form for services and access to the Platform provided prior to the date of termination shall be paid within ten (10) days of such termination. In addition, Propel may suspend access to the Platform in the event any fees are delinquent (such suspension will be lifted after such amounts have been paid). All sections of this Agreement which by their nature should survive termination will survive termination, including but not limited to Sections 1 (Definitions), 3 (Use Restrictions), 5 (Platform Security), 6 (Fees, Taxes, and Payment Terms), 7 (Ownership), 8 (Confidential Information), 9.3 (Disclaimer), 10 (Term and Termination), 11 (Indemnification), 12 (Limitations) and 14 (Miscellaneous).

Propel will indemnify, defend and hold harmless Customer and its Affiliates from and against any third-party claims (and all resulting, to the extent payable to unaffiliated third parties: loss, damage or expense) resulting from infringement by the Platform (except for third party software, including without limitation open source software) of any U.S. intellectual property right; provided that

  1. (i) Propel is notified in writing of such claim promptly after such claim is made upon Customer; and
  2. (ii) Propel shall have the right to solely control any defense, settlement, and investigation of the claim.

In no event shall Customer settle any such claim without Propel’s prior written approval. Propel shall have no liability or obligation if the claim arises from

  1. (i) any alteration or modification to the Platform requested or implemented by or on behalf of Customer or its Affiliates,
  2. (ii) any combination of the Platform by the Customer with other technology or data not furnished by Propel, or
  3. (iii) any use by the Customer of the Platform not in accordance with this Agreement.

If the Platform becomes or Propel believes it may become the subject of a claim of intellectual property infringement, Propel, at its option and expense, may:

  1. (i) procure the right for the Customer to continue to use the Platform;
  2. (ii) replace or modify the Platform so as to make it non-infringing; provided, however, that the Platform continues to conform to the specifications provided in the applicable Order Form; or
  3. (iii) terminate this Agreement and refund to the Customer the fees paid in advance by Customer for the Platform and not provided by Propel.

This Section sets forth the entire liability of Propel to the Customer for any infringement by the Platform of any intellectual property right.Customer will indemnify, defend and hold harmless Propel and its Affiliates from and against any third party claims (and all resulting, to the extent payable to unaffiliated third parties: loss, damage or expense) resulting from Customer Data.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL PROPEL OR ITS LICENSORS OR PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY IN CONNECTION HEREWITH: (A) FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, PROFITS, REVENUE OR INCOME), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (B) FOR ANY AMOUNT, IN THE AGGREGATE, EXCEEDING THE FEES PAID AND PAYABLE IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY (BUT FOR INDEMNITY ABOVE, SUCH CAP IS HEREBY INCREASED BY FOUR TIMES (4x)), WHETHER BASED ON BREACH OF WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, (C) FOR THE COST OF PROCUREMENT OF SUBSTUTYTE TECHNOLOGY OR SERVICES, OR (D) FOR ANY MATTERS BEYOND PROPEL’S REASONABLE CONTROL. WITHOUT LIMITING THE FOREGOING, CUSTOMER ACKNOWLEDGES THAT PROPEL SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER THIRD PARTY SYSTEMS OUTSIDE THE REASONABLE CONTROL OF PROPEL.

Customer agrees to participate in reasonable marketing activities that promote the benefits of the Services to other potential customers. Propel may use Customer’s name and logo on the Propel website and in Propel promotional materials. Customer agrees that Propel may disclose Customer as a customer of Propel.

14.1. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules.  Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Rules of the Judicial Arbitration and Mediation Service (“JAMS”) in accordance with such Rules.  To the extent the JAMS streamlined rules are available – they shall apply. The arbitration shall take place in San Francisco, California, in the English language and the arbitral decision may be enforced in any court. To the extent a claim cannot legal be arbitrated (as determined by an arbitrator), 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.

14.2. Notices
Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email or facsimile (provided delivery is confirmed), or U.S. Mail (registered or certified only), return receipt requested, in each case to the address set forth on the Order Form or at such other addresses as shall be designated in writing by either Party to the other in accordance with this Section. Such notice will be deemed to be given when received.

14.3. Entire Agreement
These Terms of Service, together with any Order Form executed by and between you and Propel, constitute the entire agreement between you and us with respect to the Platform and supersede all prior or contemporaneous communications and proposals (whether oral, written, or electronic) between you and us with respect to the Platform. If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will remain in full force and effect. The failure of either Party to exercise in any respect any right provided for in the Agreement shall not be deemed a waiver of any further rights under this Agreement.

14.4. Injunctive Relief
You agree that a breach of Section 3 of these Terms will cause irreparable injury to Propel for which monetary damages would not be an adequate remedy and Propel shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.

14.5. Assignment
This Agreement will inure to the benefit of and will be binding upon each Party’s successors and assigns. The Agreement and the licenses granted hereunder may be assigned by Propel but may not be assigned by you without the prior express written consent of Propel. Any attempt by you to assign this Agreement without the written consent of Propel shall be null and void.

14.6. Independent Contractors
Nothing contained in this Agreement will be deemed to constitute either Party as the agent or representative of the other Party or both Parties as joint venturers or partners for any purpose.

14.7. Modifications
We may occasionally update these Terms of Service. When we do update these Terms of Service, we will notify you via email or account notification. If you continue to use the Platform after such notice, you are bound by the updated Terms of Service.

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