Data Points LLC
Customer Terms of Service
Last Modified 5.25.18
This is a contract between you (the Customer) and us (DataPoints). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. By using the Subscription Service you are agreeing to these terms.
We periodically update these terms. If you have an active DataPoints subscription, we will let you know when we do via an email or in-app notification.
"Agreement" means these Customer Terms of Service and all materials referred to and incorporated by reference in this document.
“Paid Users” means those types of Users (defined below) that pay a fee to use the Subscription Service.
"Billing Period" means the period for which you agree to prepay fees to use the Subscription Service.
"Contact" means a single individual (other than a User) whose Contact Information is stored by you in the Subscription Service.
"Contact Information" means the name, email address, telephone number, and any similar information submitted by visitors to your landing pages created using the Subscription Service or uploaded by you to the Subscription Service.
"Customer Data" means all information that you submit or collect via the Subscription Service.
"DataPoints", "we", "us" or “our” means Data Points LLC.
"DataPoints Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service.
“Free Services” means the Subscription Service or other products or features made available by us to you on an unpaid trial or free basis.
"Maximum Contacts" means the maximum number of Contacts you are permitted to use with the Subscription Service as identified in your Order Form, plus any Contacts added as part of an upgrade.
"Order" or "Order Form" means the DataPoints-approved form or online subscription process by which you agree to subscribe to the Subscription Service. Most Orders are completed through our online payment process.
"Sensitive Information" means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under EU data protection laws as “Sensitive Personal Data.”
"Subscription Fee" means the amount you pay for the Subscription Service.
"Subscription Service" means all of our web-based psychometric and behavioral assessment applications and inbound marketing tools and platforms that you have subscribed to by an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via http://measure.datapoints.com.
"Subscription Term" means the initial term of your subscription to the applicable Subscription Service, as specified on your Order Form(s), and each subsequent renewal term (if any). For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.
"Users" means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.
"You", "your", or “Customer” means the person or entity using the Subscription Service and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer.
B. GENERAL COMMERCIAL TERMS
1. Access. During the Subscription Term, we will provide you access to use the Subscription Service as described in this Agreement and the applicable Order. We may also provide you access to use our Free Services at any time by activating them in your DataPoints account. We might provide some or all elements of the Subscription Service through third party service providers.
2. Additional Features. You may subscribe to additional features of the Subscription Service by placing an additional Order or activating the additional features from within your DataPoints account (if this option is made available by us.). This Agreement will apply to all additional Order(s) and all additional features that you activate from within your DataPoints account.
3. Availability. We try to make the Subscription Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance.
4. Fees and Payments
a. Subscription Fees. The Subscription Fee will remain fixed during the Subscription Term unless you: (i) exceed your Maximum Contacts, Users, or other applicable limits (see the “Limits” section below), (ii) upgrade products or base packages, (iii) subscribe to additional features or products, including additional Contacts, or (iv) unless otherwise agreed to in the Order.
b. Payment by credit card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
c. Payment against invoice. If you are paying by invoice, we will invoice you no more than forty-five (45) days before the beginning of the Subscription Term and each subsequent Billing Period, and other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form.
d. Payment Information. You will keep your contact information, billing information, and credit card information (where applicable) up to date. Changes may be made on your Billing Page within your DataPoints account. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term.
e. Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you are subject to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
5. Use and Limitations of Use
a. Prohibited and Unauthorized Use. You will not (i) use or launch any automated system, including, "robots," "spiders," or "offline readers," that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (ii) use the Subscription Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party's use of the Subscription Service; (iii) attempt to gain unauthorized access to the Subscription Service; (iv) access the Subscription Service other than through our interface; or (v) use the Subscription Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.
You may not use the Subscription Service if you are legally prohibited from receiving or using the Subscription Service under the laws of the country in which you are resident or from which you access or use the Subscription Service.
You will notify us promptly of any unauthorized use of your Users’ identifications and passwords or your account.
b. No Sensitive Information. You agree not to use the Subscription Service to collect, manage, or process Sensitive Information. We will not have any liability that may result from your use of the Subscription Service to collect or manage Sensitive Information.
6. Subscription Term, Termination, Suspension
a. Term and Renewal. Your initial subscription period will be specified in your Order, and your subscription will automatically renew for the subscription period you select unless cancelled. If you add products during the Subscription Term, the fees for these additional products will be pro-rated and they will renew along with your subscription, unless otherwise indicated in your Order.
The renewal pricing set forth in your Order will apply, subject to adjustment as specified in the “Fees and Payments” section above. If renewal pricing is not included in your Order, then our standard pricing available in our product and services details page on the date of renewal will apply.
See the “Limits” section below for the applicability of product limits on renewal.
b. No Early Termination; No Refunds. The Subscription Term will end on the expiration date and the subscription cannot be cancelled early. We do not provide refunds if you decide to stop using the DataPoints subscription during your Subscription Term.
c. Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Subscription Services: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
d. Suspension for Prohibited Acts. We may suspend any User’s access to any or all Subscription Services without notice for use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement.
e. Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Services five (5) days after such notice.
f. Suspension and Termination of Free Services. We may suspend, limit, or terminate the Free Services for any reason at any time without notice. We may terminate your subscription to the Free Services due to your inactivity.
Upon termination or expiration of this Agreement, you will stop all use of the affected Subscription Service and DataPoints Content. We may or may not provide you the opportunity to retrieve Customer Data after termination or expiration, depending on the type of applicable subscription as specified in the “Retrieval of Customer Data” section below. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term.
C. SUBSCRIPTION TYPE TERMS
1. Subscription Types. We offer two main types of subscriptions: (i) Paid Subscriptions and (ii) Free-Trial Subscriptions. These are defined as follows:
(i) Paid Subscriptions: Any subscription where you pay for access to any service level of the Subscription Service.
(ii) Free-Trial Subscriptions: Any free-trial period or permitted use of the Subscription Service where you have not paid for the access granted, including any basic or extended free-trial periods.
2. Limits. The limits that apply to you will be specified in your Order Form, this Agreement or in our product and services details pages on the website. You must be 18 years of age or older to use the Subscription Service.
For our Paid Subscriptions, if we make modifications to the limits set forth in the product and services details that would negatively impact you, these modifications will not apply to you until the start of your next renewal Subscription Term. On renewal, the current product usage limits in our product and services details page will apply to your subscription, unless you and we otherwise agree.
For our Free-Trial Subscriptions, we may change the limits that apply to your use at any time in our sole discretion without notice to you, regardless of whether or not these are used in conjunction with other products or services for which you pay us a fee. If your subscription remains active (i.e., has not been cancelled by you) at the end of the stated free-trial period, you will be charged the subscription rate for the subscription level service you selected at registration on the Order Form. If you exceed the Maximum Contacts uploaded during the Free-Trial Subscription period, your Free-Trial Subscription will be converted to a Paid Subscription and you will be charged the subscription rate for the subscription level service you selected at registration on the Order Form. Each user can only use a Free-Trial Subscription once, absent express consent from us.
3. Modifications. We modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience.
For our Paid Subscriptions, we will not make changes to the Subscription Service that materially reduce the functionality provided to you during the Subscription Term.
For our Free-Trial Subscriptions, we may make changes that materially reduce the functionality provided to you during the Subscription Term.
4. Customer Support. We attempt to respond to email and in-app support questions within one business day; in practice, our responses are generally even faster. We do not promise or guarantee any specific response time.
5. Notice of Non-Renewal. Your subscription will automatically renew according to the “Term and Renewal” section above unless you cancel your subscription prior to the end of the Subscription Term.
6. Retrieval of Customer Data. For our Paid Subscriptions, as long as you have paid all fees owed to us, if you make a written request within thirty (30) days after termination or expiration of your subscription, we will provide you with temporary access to the Subscription Service to retrieve all Customer Data then in our possession or control. We may withhold access to Customer Data until you pay any fees owed to us. Thirty (30) days after termination or expiration of your Subscription, we will have no obligation to maintain or provide you with temporary access to the Customer Data and may, unless legally prohibited, delete all Customer Data in our systems or otherwise in our control.
For our Free-Trial Subscriptions, we will not provide you with any access to Customer Data after termination or expiration of your subscription.
D. GENERAL LEGAL TERMS
1. Customer Data
b. Aggregate Data. We may monitor use of the Subscription Service by all of our customers and use the data gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify you.
c. Safeguards. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the United States.
d. Sub-processors. We use third-party service providers to host the Subscription Service and to provide data processing services related to the provision of the Subscription Service. You expressly authorize us to use third-party data processors subject to the same level of security safeguards specified in paragraph (c) above.
2. DataPoints’ Proprietary Rights. This is an Agreement for access to and use of the Subscription Service, and you are not granted a license to any software by this Agreement. The Subscription Service is protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the DataPoints Content or the Subscription Service in whole or in part, by any means, except as expressly authorized in writing by us.
3. Customer’s Proprietary Rights. As between the parties, you own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Subscription Service to you and as permitted by this Agreement. If you are using the Subscription Service on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
4. Indemnification. You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Subscription Service by you, (b) your noncompliance with or breach of this Agreement, or (c) the unauthorized use of the Subscription Service by any other person using your User information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
5. Disclaimers; Limitations of Liability
a. Disclaimer of Warranties. WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SUBSCRIPTION SERVICE, DATA MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE OR DATAPOINTS CONTENT FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE AND DATAPOINTS CONTENT ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH REGARD TO THE SUBSCRIPTION SERVICE INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
b. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES.
c. Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE “INDEMNIFICATION” SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF TWO THOUSAND (2,000) U.S. DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO FIFTY (50) U.S. DOLLARS.
d. Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.
a. Amendment; No Waiver. We may update and change any part or all of these Customer Terms of Service, including the fees and charges associated with the use of the Subscription Service (but, your fees and charges won’t change during the Subscription Term except as we explain in the “Fees and Payments” section above.) If we update or change these Customer Terms of Service, the updated Customer Terms of Service will be posted at http://www.DataPoints.com/terms-of-service and we will let you know via email or in-app notification. The updated Customer Terms of Service will become effective and binding on the next business day after it is posted. When we change these Customer Terms of Service, the "Last Modified" date above will be updated to reflect the date of the most recent version. We encourage you to review these Customer Terms of Service periodically.
If you do not agree with a modification to the Customer Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Customer Terms of Service prior to modification for the remainder of your current term. Upon renewal, the Customer Terms of Service published by us on our website will apply.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
b. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
c. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
d. Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
e. Compliance with Laws. We will comply with all U.S. state and federal laws (where applicable) in our provision of the Subscription Service and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Subscription Service including any applicable export laws. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Subscription Service to prohibited countries or individuals or permit use of the Subscription Service by prohibited countries or individuals.
f. Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
g. Notices. Notice will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.
To DataPoints: 4880 Lower Roswell Road, Suite 165-134, Marietta, GA 30068-4385, Attention: General Counsel
To you: your address as provided in our DataPoints Subscription account information for you. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance, or website. Our obligations are not contingent on the delivery of any future functionality or features of the Subscription Service or dependent on any oral or written public comments made by us regarding future functionality or features of the Subscription Service. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
i. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
j. No Third Party Beneficiaries. With the exception of rights granted in the DPA, where applicable, nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
k. Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
l. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
m. Precedence. In the event of a conflict between the terms of this Agreement and an Order, the terms of the Order shall control, but only as to that Order.
E. JURISDICTION SPECIFIC TERMS
EU/EEA and Switzerland Data Processing
To the extent that DataPoints processes any Personal Data as part of Customer Data that is subject to the General Data Protection Regulation (the “GDPR”), on Customer’s behalf, in the provision of the services hereunder, the terms of the DataPoints Data Processing Addendum (“DPA”), which are hereby incorporated by reference, shall apply. For customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses governing Controller-to-Processor data export adopted by the European Commission and included in the DPA, which provide adequate safeguards with respect to the personal data processed by us under this Agreement and pursuant to the provisions of our DPA, shall apply. You acknowledge in all cases that DataPoints acts as the data processor of Customer Data and you are the data controller of Customer Data under applicable data protection regulations in the European Union and European Economic Area. Customer will obtain and maintain any required consents necessary to permit the processing of Customer Data under this Agreement. If you are subject to the GDPR you understand that if you give an integration provider access to your DataPoints account, you serve as the data controller of such information and the integration provider serves as the data processor for the purposes of those data laws and regulations that apply to you. In no case are such integration providers our sub-processors.