Terms of Service
Last Updated August 27, 2018
These PromoPrep Terms of Service (this “Agreement”) are entered into by PromoPrep LLC (“PromoPrep”) and the entity executing this Agreement (“You” or “Customer”). This Agreement governs Your use (a “User”) of the PromoPrep (the “Service”). This Agreement permits you to create and configure an Account and invite other Users to join. If you have been invited to an Account created by a Customer, you acknowledge and agree that the Customer owns all content that you submit or upload to the Services and controls your use of the Services in accordance with applicable local laws, including but not limited to adding or removing you from an Account, enabling or disabling third-party integrations, managing permissions, and accessing, modifying, or removing content that you submit or upload to the Services. BY CLICKING THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, OR USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THIS AGREEMENT AND ARE AUTHORIZED TO ACT ON BEHALF OF, AND BIND TO THIS AGREEMENT, THE OWNER OF THIS ACCOUNT. In consideration of the foregoing, the parties agree as follows:
“Account” refers to the billing account for the Service. Fees will be aggregated for all User Profiles linked to a single Account before determining any charge for the Service for that Account, if applicable.
“Confidential Information” includes any proprietary data and any other information disclosed by one party to the other in writing and marked “confidential” or disclosed orally and, within five business days, reduced to writing and marked “confidential”. However, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party’s possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information.
“Customer Data” or “PromoPrep Data” means the data You transfer, collect, process or store using the Service.
“Documentation” means any accompanying documentation made available to You by PromoPrep for use with the Software, including any documentation available online.
“Platform” means the user interface through which You can access certain PromoPrep Platform-level functionality.
“Software” means the PromoPrep server-side software and any upgrades to functionality within the platform.
“Profile” means the collection of settings that together determine the information to be included in, or excluded from, a particular users access to the software. There can be multiple Profiles established under a single account.
“Report” means any resulting analysis shown for an account.
“Servers” means the servers controlled by PromoPrep (or its wholly owned subsidiaries) on which the Software and Customer Data are stored.
“Third Party” means any third party (i) to which You provide access to Your Account or (ii) for which You use the Service to collect information on the third party’s behalf.
“User” means users of the Service under Customer’s account.
The words “include” and “including” mean “including but not limited to.”
2. Fees and Service.
Subject to the terms of this agreement, the Service is provided without charge to You for up to three user profiles under a single account, as a “Starter Account”. Additional user profiles as well as access to enhanced platform features, are available to You as a “Paid Account”, in accordance with the fees published for the Service and terms of the PromoPrep Paid Account Agreement. PromoPrep may change its fees and payment policies for the Service from time to time including the addition of costs for technology development, data, or other fees charged to PromoPrep or its wholly-owned subsidiaries by third party vendors for the software. The changes to the fees or payment policies are effective upon Your acceptance of those changes, which will be posted at www.PromoPrep.com. Unless otherwise stated, all fees are quoted in U.S. Dollars. Any outstanding balance becomes immediately due and payable upon termination of this Agreement and any collection expenses (including attorneys’ fees) incurred by PromoPrep will be included in the amount owed, and may be charged to the credit card or other billing mechanism associated with Your account.
3. Member Account, Password, and Security.
To register for the Service, You must complete the registration process by providing PromoPrep with current, complete and accurate information as prompted by the registration form, including Your e-mail address (username) and password. You will protect Your passwords and take full responsibility for Your own, and third party, use of Your accounts. You are solely responsible for any and all activities that occur under Your Account. You will notify PromoPrep immediately upon learning of any unauthorized use of Your Account or any other breach of security. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account. PromoPrep will not be liable for any loss, damages, liability, expenses or attorneys’ fees that you may incur as a result of someone else using your password or account, either with or without your knowledge and/or authorization, and regardless of whether you have or have not advised us of such unauthorized use. You will be liable for losses, damages, liability, expenses and attorneys’ fees incurred by PromoPrep or a third party due to someone else using your account. PromoPrep’s (or its wholly-owned subsidiaries’) support staff may, from time to time, log in to the Service under Your customer password in order to maintain or improve service, including to provide You assistance with technical or billing issues.
4. Nonexclusive License And Our Proprietary Rights
Subject to the terms and conditions of this Agreement, (a) PromoPrep grants You a limited, revocable, non-exclusive, non-sublicensable license to use the software solely as necessary for You to use the Service on Your Account of third party’s Account; and (b) You may remotely access, view and download reports within the platforform. You will not (and You will not allow any third party to) (i) copy, modify, adapt, translate or otherwise create derivative works of the Software or the Documentation; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software, except as expressly permitted by the law in effect in the jurisdiction in which You are located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Software, the Documentation or the Service; (iv) remove any proprietary notices or labels on the Software or placed by the Service; (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software; or (vi) use data labeled as belonging to a third party in the Service without their consent. You will comply with all applicable laws and regulations in Your use of and access to the Documentation, Software, and Service.
The Services are fully owned and operated by PromoPrep and contain materials (including all software, design, text, editorial materials, informational text, photographs, illustrations, audio clips, video clips, artwork and other graphic materials, and names, logos, trademarks and services marks) which are derived in whole or in part from materials supplied by PromoPrep and its partners, as well as other sources, and is protected by United States copyright laws, international treaty provisions, trademarks, service marks and other intellectual property laws. The Services are also protected as a collective work or compilation under U.S. copyright and other law and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in the Services. You acknowledge that the Services have been developed, compiled, prepared, revised, selected, and arranged by PromoPrep and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitute valuable intellectual property of PromoPrep and such others. You agree to protect the proprietary rights of PromoPrep and all others having rights in the Services during and after the term of these Terms and to comply with all reasonable written requests made by PromoPrep of content or otherwise to protect their and others’ contractual, statutory, and common law rights in the Services. You agree to notify PromoPrep immediately upon becoming aware of any claim that the Services infringe upon any copyright, trademark, or other contractual, statutory, or common law rights. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including without limitation rights in and to all applications and registrations relating to the Services shall, as between you and PromoPrep, at all times be and remain the sole and exclusive property of PromoPrep. Any unauthorized use of any material contained on or through the Services may violate copyright laws, trademark laws, the laws of privacy and publicity and communications regulations and statutes.
Neither party will use or disclose the other party’s Confidential Information without the other’s prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order; in which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing the Confidential Information.
6. Information Rights and Publicity.
You must not circumvent any privacy features (e.g., an opt-out) that are part of the Service. You will comply with all applicable PromoPrep policies (or such other URL as PromoPrep may provide) as modified from time to time (the “PromoPrep Policies”).
To the extent permitted by applicable law, You will indemnify, hold harmless and defend PromoPrep and its wholly owned subsidiaries, at Your expense, from any and all third-party claims, actions, proceedings, and suits brought against PromoPrep or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys’ fees and other litigation expenses) incurred by PromoPrep or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) Your breach of any term or condition of this Agreement, (ii) Your use of the Service, (iii) Your violations of applicable laws, rules or regulations in connection with the Service, (iv) any representations and warranties made by You concerning any aspect of the Service, the Software or Reports to any Third Party; (v) any claims made by or on behalf of any Third Party pertaining directly or indirectly to Your use of the Service, the Software or Reports; (vi) violations of Your obligations of privacy to any Third Party; and (vii) any claims with respect to acts or omissions of any Third Party in connection with the Service, the Software or Reports. PromoPrep will provide You with written notice of any claim, suit or action from which You must indemnify PromoPrep. You will cooperate as fully as reasonably required in the defense of any claim. PromoPrep reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by You.
9. Third Parties.
If You use the Service on behalf of the Third Party or a Third Party otherwise uses the Service through Your Account, whether or not You are authorized by PromoPrep to do so, then You represent and warrant that (a) You are authorized to act on behalf of, and bind to this Agreement, the Third Party to all obligations that You have under this Agreement, (b) PromoPrep may share with the Third Party any Customer Data that is specific to the Third Party’s Properties, and (c) You will not disclose Third Party’s Customer Data to any other party without the Third Party’s consent.
PromoPrep does not warrant or support any third party service (e.g., a third party service that utilizes PromoPrep in connection with Customer’s use of the Service) and will not be responsible for any act or omission on the part of such third party or its service.
10. DISCLAIMER OF WARRANTIES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, PROMOPREP MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT.
11. LIMITATION OF LIABILITY.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, PROMOPREP WILL NOT BE LIABLE FOR Your LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF PromoPrep OR ITS SUBSIDIARIES AND AFFILIATES HAVE BEEN ADVISED OF, KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. PromoPrep’S (AND ITS WHOLLY OWNED SUBSIDIARIES’ TOTAL CUMULATIVE LIABILITY TO You OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED $100 (USD).
12. Proprietary Rights Notice.
The Service, which includes the Software and all Intellectual Property Rights therein are, and will remain, the property of PromoPrep (and its wholly owned subsidiaries). All rights in and to the Software not expressly granted to You in this Agreement are reserved and retained by PromoPrep and its licensors without restriction, including, PromoPrep’s (and its wholly owned subsidiaries’) right to sole ownership of the Software and Documentation. Without limiting the generality of the foregoing, You agree not to (and not to allow any third party to): (a) sublicense, distribute, or use the Service or Software outside of the scope of the license granted in this Agreement; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Software or otherwise attempt to discover any source code or trade secrets related to the Service; (c) rent, lease, sell, assign or otherwise transfer rights in or to the Software or the Service; (d) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software; (e) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of PromoPrep; (f) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with PromoPrep (or its wholly owned subsidiaries) other than in the name of PromoPrep (or its wholly owned subsidiaries, as the case may be); (g) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service; or (h) seek, in a proceeding filed during the term of this Agreement or for one year after such term, an injunction of any portion of the Service based on patent infringement.
PromoPrep may incorporate into the Service any suggestions or feedback received from the Customer without any obligation to Customer and any such modifications to the Service shall be the sole and exclusive property of PromoPrep. PromoPrep may also share and publish aggregate, anonymized data about the use of our Service by our customers.
13. Term and Termination.
Either party may terminate this Agreement at any time with notice. Upon any termination of this Agreement, PromoPrep will stop providing, and You will stop accessing the Service. In the event of any termination (a) You will not be entitled to any refunds of any usage fees or any other fees, and (b) any outstanding balance for Service rendered through the date of termination will be immediately due and payable in full and (c) all of Your Account data will no longer be available to You.
In addition to any other remedies that may be available to us, PromoPrep reserves the right to immediately suspend or terminate your account or your access to the Services upon notice and without liability for PromoPrep should you fail to abide by the terms of this agreement. If you are a third party user, PromoPrep reserves the right to notify the account owner of any violations of this agreement, and the Account owner retains the right to terminate your access to the account for any reason.
14. Modifications to Terms of Service and Other Policies.
PromoPrep may modify these terms or any additional terms that apply to the Service to, for example, reflect changes to the law or changes to the Service. You should look at the terms regularly. PromoPrep will post notice of modifications to these terms at www.PromoPrep.com, the PromoPrep Policies at www.PromoPrep.com/policies/, or other policies referenced in these terms at the applicable URL for such policies. You must check this page periodically for updates as to terms of service. Changes will not apply retroactively and will become effective no sooner than 14 days after they are posted. If You do not agree to the modified terms for the Service, You should discontinue Your use of PromoPrep. No amendment to or modification of this Agreement will be binding unless (i) in writing and signed by a duly authorized representative of PromoPrep, (ii) You accept updated terms online, or (iii) You continue to use the Service after PromoPrep has posted updates to the Agreement or to any policy governing the Service.
15. Eligibility and Scope
To use the Services you must be, and represent and warrant that you are, at least 13 years of age and competent to agree to these Terms. If you are agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity). If PromoPrep has previously prohibited you from accessing or using the Services, you are not permitted to access or use the Services.
Use Outside the United States of America. The Services are controlled and operated by PromoPrep from its offices in the United States of America. PromoPrep makes no representations that the Services are appropriate for use in other locations. Those who access or use the Services from other locations do so at their own risk and are responsible for compliance with local law. PromoPrep may offer services in other jurisdictions in which case a different version of these Terms may apply and will be presented to you on such services.
16. Acceptable Use
All users of the PromoPrep Service are expected to comply with the following to use the Services:
Disruption of the Service. You may not: access, tamper with, or use non-public areas of the Service, PromoPrep’s computer systems, or the technical delivery systems of PromoPrep’s providers; probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measure; access or search the Service by any means other than PromoPrep’s publicly supported interfaces (for example, “scraping”); attempt to disrupt or overwhelm our infrastructure by intentionally imposing unreasonable requests or burdens on our resources (e.g. using “bots” or other automated systems to send requests to our servers at a rate beyond what could be sent by a human user during the same period of time) interfere with or disrupt the access of any user, host or network, including, without limitation, by sending a virus, overloading, flooding, spamming, mail-bombing the Service, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Service.
Misuse of the Service. You may not utilize the Service to carry out, promote or support: any unlawful or fraudulent activities; the impersonation of another person or entity or the misrepresentation of an affiliation with a person or entity in a manner that does or is intended to mislead, confuse, or deceive others; activities that are defamatory, libelous or threatening, constitute hate speech, harassment, or stalking; the publishing or posting other people’s private or personally identifiable information, such as credit card numbers, street address or Social Security/National Identity numbers, without their express authorization and permission; the sending unsolicited communications, promotions advertisements, or spam; the publishing of or linking to malicious content intended to damage or disrupt another user’s browser or computer; or promotion or advertisement of products or services other than your own without appropriate authorization.
Content Standards Within the Service. You may not post any Content on the Service that: violates of any applicable law, any third party’s intellectual property rights, or anyone’s right of privacy or publicity; is deceptive, fraudulent, illegal, obscene, pornographic (including child pornography, which, upon becoming aware of, we will remove and report to law enforcement, including the National Center for Missing and Exploited children), defamatory, libelous or threatening, constitutes hate speech, harassment, or stalking; contains viruses, bots, worms, or similar harmful materials; or contains any information that you do not have a right to make available under law or any contractual or fiduciary duty.
Violations of this Acceptable Use Policy. In addition to any other remedies that may be available to us, PromoPrep reserves the right to immediately suspend or terminate your account or your access to the Service upon notice and without liability for PromoPrep should you fail to abide by this Acceptable Use Policy. If you are a user of the Service under your employer or organization’s account, PromoPrep reserves the right to notify your employer or organization of any violations of this Acceptable Use Policy.
Modifications. PromoPrep may amend or modify this Acceptable Use Policy from time to time in its sole and reasonable discretion. We will post any such changes on our website. If you object to any such change(s), your sole recourse shall be to cease using the Service. Continued use of the Service following notice of any such changes shall constitute your acknowledgement and acceptance of such changes.
17. Third Party Links and Services
The Services may provide (1) information and content provided by third parties; (2) direct integrations with and/or links to third-party websites or resources, such as sellers of goods and services; and (3) third-party products and services for sale directly to you. PromoPrep is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for (i) any content, advertising, products, or other materials on or available from such sites or resources, (ii) any errors or omissions in these websites or resources, or (iii) any information handling practices or other business practices of the operators of such sites or resources. You further acknowledge and agree that PromoPrep shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any linked sites or resources. Your interactions with such third parties will be governed by the third parties’ own terms of service and privacy policies, and any other similar terms.
18. Miscellaneous, Applicable Law and Venue.
PromoPrep will be excused from performance in this Agreement to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. This Agreement (including any amendment agreed upon by the parties in writing) represents the complete agreement between You and PromoPrep concerning its subject matter, and supersedes all prior agreements and representations between the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision will be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement will be governed by and construed under the laws of the state of Colorado without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and Colorado law, rules, and regulations, Colorado law, rules and regulations will prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Denver County, Colorado. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement. The Software is controlled by U.S. Export Regulations, and it may be not be exported to or used by embargoed countries or individuals. Any notices to PromoPrep must be sent to: PromoPrep LLC, 1942 Broadway Street STE 314C, Boulder, CO 80302, USA, with a copy to Legal Department, via first class or air mail or overnight courier, and are deemed given upon receipt. A waiver of any default is not a waiver of any subsequent default. You may not assign or otherwise transfer any of Your rights in this Agreement without PromoPrep’s prior written consent, and any such attempt is void. The relationship between PromoPrep and You is not one of a legal partnership relationship, but is one of independent contractors. This Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. The following sections of this Agreement will survive any termination thereof: 1, 4, 5, 6 (except the last two sentences), 7, 8, 9, 10, 11, 12, 14, and 18.