Terms of Service
Updated 12/17/23
RESTRICTIONS AND RESPONSIBILITIES
Customer shall not engage in any of the following activities, either directly or indirectly : a. Reverse engineer, decompile, disassemble, or attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms related to the Services or any software, documentation, or data associated with the Services ("Software"). b. Modify, translate, or create derivative works based on the Services or any Software, unless expressly permitted by the Company or authorized within the Services. c. Use the Services or any Software for timesharing, service bureau purposes, or for the benefit of a third party. d. Remove any proprietary notices or labels.
Customer may not remove or export the Services, Software, or any related materials from the United States or allow their export or re-export in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
The Software and documentation provided are considered "commercial items" according to FAR section 2.101 and "commercial computer software" and "commercial computer software documentation" according to DFAR section 252.227-7014(a)(1) and (5). Any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement, in accordance with DFAR section 227.7202 and FAR section 12.212.
Customer represents, covenants, and warrants that the Services will only be used in compliance with the Company's standard published policies (the "Policy") and all applicable laws and regulations. [Customer agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) arising from a claim or action related to an alleged violation of the foregoing or Customer's use of Services.] While the Company has no obligation to monitor Customer's use of the Services, it reserves the right to do so and may prohibit any use of the Services that it believes, or is alleged to be, in violation of the aforementioned terms.
The Customer is responsible for obtaining and maintaining any necessary equipment and ancillary services required to connect to, access, or use the Services, including but not limited to modems, hardware, servers, software, operating systems, networking, web servers, etc. ("Equipment"). Customer is also responsible for maintaining the security of the Equipment, Customer account, passwords (including administrative and user passwords), and files, and will be liable for any unauthorized use of the Customer account or Equipment, whether or not done with Customer's knowledge or consent.
CONFIDENTIALITY; PROPRIETARY RIGHTS
Both parties acknowledge that one party (the "Disclosing Party") may disclose business, technical, or financial information (referred to as "Proprietary Information") related to its business. Proprietary Information of the Company includes non-public information about the Service's features, functionality, and performance. Proprietary Information of the Customer includes non-public data provided to the Company for the provision of the Services ("Customer Data"). The Receiving Party agrees to: a. Take reasonable precautions to protect the Proprietary Information. b. Not use or disclose any such Proprietary Information to any third party, except for performing the Services or as otherwise permitted in the agreement.
The obligations in point 1 above shall not apply to information that: a. Becomes publicly available after five (5) years from the disclosure. b. The Receiving Party already possessed or knew prior to receiving it from the Disclosing Party. c. Was rightfully disclosed without restrictions by a third party. d. Was independently developed without using any Proprietary Information of the Disclosing Party. e. Is required to be disclosed by law.
Customer retains all rights, titles, and interests in and to the Customer Data. The Company owns and retains all rights, titles, and interests in and to: a. The Services, Software, and any improvements or modifications. b. Any software, applications, inventions, or technology developed in connection with Implementation Services or support. c. All intellectual property rights related to the aforementioned.
Notwithstanding any other provision, the Company has the right to collect and analyze data and information regarding the provision, use, and performance of the Services and related systems and technologies. This includes information about Customer Data and derived data. The Company may: a. Use the information to improve and enhance the Services, and for development, diagnostics, and corrective purposes. b. Disclose such data in aggregate or de-identified forms for business purposes. No rights or licenses are granted unless expressly stated in the agreement.
TRIAL PERIOD AND SUBSCRIPTION START DATE
Popsicle offers a complimentary trial period to allow you to explore the platform’s full range of features before committing to an annual subscription. During this trial, you may connect your Stripe™ account to process payments. Standard payment processing fees and registration fees apply during the trial period. You will be prompted to enter your payment details during the trial. Your annual subscription term will begin once your payment information is submitted and accepted, even if the trial period has not yet expired. By submitting your payment details, you authorize Popsicle to initiate your annual subscription immediately, and your subscription will automatically renew each year unless canceled in accordance with our cancellation policy.
PAYMENT OF FEES
Customer shall pay the Company the applicable fees as described in the Service Agreement for the Services and Implementation Services ("Fees"), in accordance with the terms specified therein. If Customer's use of the Services exceeds the Service Capacity stated on the Order Form or requires additional fees as per this Agreement, Customer will be billed for the excess usage and agrees to pay the additional fees as outlined in this Agreement. The Company reserves the right to modify the Fees, applicable charges, and introduce new charges and Fees at the end of the Service Term or the current renewal term, with a notice period of thirty (30) days provided to the Customer (which may be sent via email). If the Customer believes there is an error in the billing, they must notify the Company within 60 days from the closing date of the first billing statement showing the error. This allows the Customer to request an adjustment or credit. Inquiries should be directed to the Company's customer support department. Unpaid amounts are subject to a finance charge of 1.5% per month on the outstanding balance or the maximum rate permitted by law (whichever is lower), along with all expenses of collection. Failure to pay may result in immediate termination of the Service. The Customer is responsible for all taxes associated with the Services, except for U.S. taxes based on the Company's net income.
SERVICES AND SUPPORT
Subject to the terms of this Agreement, the Company is committed to providing Customer with support for the Services detailed in the Service Agreement. The support includes a. Help Documentation that will be easily accessible to the Customer through the Company's designated support portal. b. Email Support. The Customer will have access to email support provided by the Company's support team. The Customer may submit inquiries, issues, or requests for assistance via email, and the Company will use commercially reasonable efforts to respond to such communications within a reasonable timeframe during normal business hours. However, the availability, response times, and scope of support may vary depending on the nature of the request. Support services do not cover custom development, training, or on-site assistance unless otherwise agreed upon separately and subject to additional terms and fees. The Company reserves the right to refuse registration or cancel passwords that it deems inappropriate or violates the terms of this Agreement. This measure ensures the security and integrity of the Services.
TERM AND TERMINATION
This Agreement is effective for the Service Term specified in the Service Agreement and will automatically renew for additional periods of the same duration as the initial Service Term (collectively referred to as the "Term"), unless either party requests termination at least sixty (60) days prior to the end of the current term. The Company may terminate this Agreement with or without notice in the case of nonpayment or if the Customer materially breaches any terms or conditions of this Agreement. In the event of termination, Customer shall pay for the Services provided up to and including the last day of service.
Upon termination, the Company will make all Customer Data available for electronic retrieval by the Customer for a period of seven (7) days. However, the Company may, at its discretion, delete stored Customer Data after this period. Certain sections of this Agreement, including accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability, will survive termination, as required by their nature.
WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
MISCELLANEOUS
If any provision of this Agreement is deemed unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary, while the remaining provisions of this Agreement will continue to be in full force and effect and enforceable. Customer may not assign, transfer, or sublicense this Agreement without prior written consent from the Company. However, the Company may transfer and assign its rights and obligations under this Agreement without requiring consent. This Agreement represents the complete and exclusive understanding between the parties, superseding all previous written or oral agreements, communications, and understandings pertaining to the subject matter. Any waivers or modifications to this Agreement must be in writing and signed by both parties, unless otherwise specified herein. The Company reserves the right to modify the Terms and Conditions and introduce new terms, with a notice period of thirty (30) days provided to the Customer (which may be sent via email or displayed via the software interface). This Agreement does not create any agency, partnership, joint venture, or employment relationship between the parties. The Customer does not have the authority to bind the Company in any capacity. In any action or proceeding to enforce rights under this Agreement, in the event the Company prevails, the Company shall be entitled to recover costs and attorneys' fees. All notices under this Agreement must be in writing and will be considered duly given when received: personally delivered; upon electronic confirmation if transmitted via facsimile or email; the day after being sent if using a recognized overnight delivery service for next-day delivery; or upon receipt if sent by certified or registered mail with a return receipt requested. This Agreement shall be governed by the laws of the State of Delaware, without regard to its conflict of laws provisions. The Customer agrees to reasonably cooperate with the Company by serving as a reference account upon request.