Last updated April 29, 2025. Freshpaint has recently updated its Terms of Service. For more information on this update please visit the Freshpaint Terms of Service Update - FAQs page.
These Freshpaint Terms of Service (the “Agreement”) are entered into by and between Perfalytics, Inc. doing business as Freshpaint (“Freshpaint”) and the organization identified as the customer (the “Customer”) on the applicable Order Form (defined below) and constitute an agreement governing use of the Service (defined below). Freshpaint and Customer are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
Access to the Service is purchased by a written order form, statement of work, or other written ordering document describing it and any related services provided by Freshpaint to Customer in detail (in each case, an “Order Form”). The “Effective Date” of this Agreement is the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
1. DEFINITIONS
“Affiliate” means with respect to the applicable Party, any entity that directly or indirectly controls, is controlled by, or is under common control with either Party. For purposes of the preceding sentence, “control” means direct or indirect ownership or control of fifty percent (50%) or more of the voting interests of the subject entity.
“Aggregated Anonymous Data” is defined below.
“Authorized User(s)” is defined below.
“Confidential Information” is defined below.
“Customer” is defined above.
“Customer Data” means any data, content or information that Customer submits to the Service, including data that it collects from Customer Properties (defined below) or retrieves from other Sources (defined below) through the Service.
“Customer Properties” is defined below.
"Destinations” means third party destinations to which Customer chooses to transmit Customer Data using the Service.
“Disclosure” has the meaning set forth in 45 CFR § 160.103.
“Documentation” means the end user technical documentation provided with the Service, as well as any Service documentation or descriptions of product features made available to Customer by Freshpaint in tangible or electronic form, as may be modified by Freshpaint from time to time.
“Effective Date” is defined above.
“Feedback” is defined below.
“Freshpaint API(s)” means Freshpaint’s proprietary application programming interfaces made available to Customers for use pursuant to an applicable Order Form.
“Freshpaint Code” is defined below.
“HIPAA” is defined below.
“Individual(s)” has the meaning set forth in 45 CFR § 160.103.
“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
“Monthly Tracked Users” or “MTUs” means the number of unique users engaging with the Customer Properties each month.
“Order Form” is defined above.
“Overage(s)” is defined below.
“Privacy and Security Rules” means the Health Information Technology Economic and Clinical Health Act (“HITECH”), Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and the related privacy and security regulations issued thereunder, including but not limited to the Privacy, Security, Breach Notification and Enforcement Rules (45 C.F.R. Parts 160, 162 and 164), as may be amended from time to time.
“Professional Services” means services other than the Service described in an Order Form such as consulting, configuration, customization, project management and/or training services.
“Prohibited Personal Information“ means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS“); (ii) to the extent such information would not be considered PHI under the Privacy and Security Rules, social security numbers, driver’s license numbers or other government ID numbers; (iii) to the extent such information would not be considered PHI under the Privacy and Security Rules, any of the following “special categories of data” of an EU resident (prior to May 25, 2018, as such term is defined in EU Data Protection Directive 95/46/EC; and on and after May 25, 2018, as defined in European Union Regulation 2016/679): personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person; or (iv) to the extent such information would not be considered PHI under the Privacy and Security Rules, any other personal or sensitive personal information subject to regulation or protection under the Gramm-Leach-Bliley Act, Children’s Online Privacy Protection Act or other foreign or domestic Laws. For clarity, Prohibited Personal Information does not include protected health information as defined by HIPAA.
“Protected Health Information” or “PHI” shall have the same meaning as the term protected health information in 45 C.F.R. §160.103, but is limited to that subset of Protected Health Information that is created, received, maintained, or transmitted by Freshpaint on behalf of Customer pursuant to this Agreement.
“Service” means the specific Freshpaint proprietary hosted service solution(s) specified on an Order Form, including the Freshpaint dashboard and any related Freshpaint Code and API(s).
“Sources” means owned, controlled, or third-party sources from which Customer chooses to retrieve Customer Data.
“Subscription Term” means the period during which Customer is entitled to access and use the Service as specified in an Order Form and may be used to refer to the initial service term as well as any renewal service terms.
“Taxes” is defined below.
“Use” has the meaning set forth in 45 CFR § 160.103.
“Usage Data” means Freshpaint’s technical logs, account and login data, data and learnings about Customer’s use of the Services (e.g., frequency of logins, volume of Customer Data collected or sent to Destinations). For clarity, Usage Data does not include Customer Data.
2. THE FRESHPAINT SERVICE
2.1. Overview
The Service acts as a centralized hub for Customer Data, allowing Customer to collect Customer Data from its selected Sources, such as its own or third-party websites or properties, and send the Customer Data to Customer’s chosen Destinations, such as Customer’s databases or its accounts with third-party applications or services, for Customer’s further use. Sources and Destinations supported by Freshpaint are identified in the Documentation. As is further described below and in the Documentation, Customer maintains control over which Sources and Destinations it uses with the Service, as well as the types and content of Customer Data it shares between its Sources and Destinations.
2.2. Freshpaint Code
For Sources owned or controlled by Customer (“Customer Properties”), Customer will enable the collection of Customer Data by implementing Freshpaint’s Autotrack JavaScript, SDK, or other code (“Freshpaint Code”) on the Customer Properties.
2.3. Access to the Service
Subject to the terms of this Agreement and any Order Form signed by both Parties, Freshpaint grants Customer a non-exclusive, non-sublicensable, non-transferable (except as set forth herein) right during the Subscription Term to access and use the Service solely for its internal business operations and in accordance with this Agreement, the Documentation and any scope of use restrictions on the applicable Order Form. This includes the right to implement Freshpaint Code on Customer Properties in order to collect Customer Data for use with the Service. Both Customer and Customer’s Affiliates may enter into Order Forms for the Services, provided that any Customer Affiliate that enters into an Order Form shall be bound by this Agreement, even though such Affiliate did not sign this Agreement. In the event that a Customer Affiliate signs an Order Form, Customer shall be liable for its obligations thereunder.
2.4 Authorized Users
For the purpose of this Agreement “Authorized User” means each of Customer’s employees, contractors, agents and Affiliates authorized or otherwise enabled by Customer to use the Service on its behalf. Customer and its Authorized Users must register for a Freshpaint account in order to access or use the Service. Customer agrees to provide Freshpaint with accurate, current and complete account registration information. Customer is responsible for maintaining the confidentiality of any passwords or user IDs used to access the Service, and for any use of the Service by its Authorized Users, as well as their compliance with this Agreement and any applicable Order Forms. Customer agrees to promptly notify Freshpaint in the event of any actual or reasonably suspected unauthorized use of Customer’s account(s).
2.5. Customer Use Restrictions
Customer shall not (and shall not permit any Authorized User or third party to): (a) sell, resell, license, distribute, rent, or lease the Service or include the Service in a service bureau or outsourcing offering; (b) use the Service to provide, or incorporate the Service into, any product or service provided to a third party; (c) use or attempt to use the Service for competitive analysis or benchmarking or to build a competitive product or service; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Service, except to the extent expressly permitted by applicable law (and then only upon advance notice to Freshpaint); (e) alter, adapt, copy, modify or create any derivative work of the Service; (f) remove or obscure any proprietary or other notices contained in the Service (including any reports or data printed from the Service); (g) use the Service to store or transmit any “viruses,” “worms,” “Trojan horses,” “e-mail bombs,” “cancelbots” or other harmful computer code, files, scripts, agents or programs; (h) use the Service to store or transmit deceptive, infringing, defamatory or otherwise unlawful or tortious materials, or to store or transmit material in violation of (1) third-party privacy or other rights, or (2) confidentiality obligations to third parties; or (i) unless in accordance with the terms herein, make the Services available to anyone other than Authorized Users for use for its benefit as intended under this Agreement.
2.6. Storage and Processing of Customer Data
Freshpaint may store certain Customer Data submitted from Sources to enable various features and functionality of the Service, including for “Replay” and backfilling Customer Data to Destinations at Customer’s direction. Customer acknowledges that Customer Data transmitted through the Service will be stored and processed by Freshpaint in the United States.
2.7. Updates
Customer acknowledges that the Service is an online, subscription-based product, and that in order to provide improved customer experience Freshpaint reserves the right to update, upgrade or otherwise modify the Service, and Freshpaint will update the applicable Documentation accordingly.
3. BETA RELEASES
From time to time, Freshpaint may grant Customer access to “alpha”, “beta”, “early access” or other early-stage products on an evaluation basis to Customer (“Beta Releases”). While Freshpaint may, at its discretion, provide assistance with Beta Releases, notwithstanding anything to the contrary in this Agreement, Freshpaint will have no liability for any harm, damage or losses of any kind arising out of or in connection with the Beta Services, and CUSTOMER AGREES THAT ANY BETA RELEASE IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH FRESHPAINT WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT CUSTOMER’S SOLE RISK AND DISCRETION. Freshpaint makes no promises that future versions of a Beta Release will be released for purchase or general availability. Freshpaint, in its sole discretion, may terminate Customer’s right to use any Beta Release at any time or for any reason or no reason, without liability.
4. FEES AND PAYMENT
4.1. Fees and Payment
All fees are as set forth in the applicable Order Form and shall be paid by Customer in accordance with the payment terms set forth in the Order Form. If no payment terms are specified in the Order Form, then the following payment terms apply: for the initial service term Customer will pay all fees within thirty (30) days of effective date specified in the Order Form, and all future invoices, fees and any other applicable charges will be due and payable to Freshpaint within thirty (30) days of the date of Freshpaint’s applicable invoice. Except as expressly set forth in Section 2.7 (Updates) and Section 8 (Term and Termination), all fees are non-refundable. Freshpaint reserves the right to increase the fees specified in the Order Form upon any renewal of a Subscription Term. Fees do not include any taxes, levies, duties, import or export fees, or other governmental assessments of any nature, including but not limited to sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, imposed or assessed by any jurisdiction (“Taxes”). Unless otherwise set forth in an applicable Order Form, Customer is responsible for the payment of all applicable Taxes relative to its subscription to the Service, with the exception of taxes assessable against Freshpaint based on its income, property or employment. Freshpaint may collect and remit Taxes on Customer’s behalf where required by law. In the event that Freshpaint is legally obligated to collect and remit such Taxes, in addition to its payment of fees, Customer agrees to reimburse Freshpaint for the applicable amount invoiced by Freshpaint for such Taxes. Any failure by Customer to make payments (not disputed in good faith) when due shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
4.2. Overages
If Customer exceeds its permitted usage of Monthly Tracked Users for two (2) consecutive months of its then-current Subscription Term as specified in an applicable Order Form (an “Overage”), Freshpaint reserves the right to charge Overage fees in respect of such excess usage at the Overage rates set forth in the applicable Order Form. Unless otherwise set forth in an Order Form, such Overage fees will be prorated monthly for the remainder of the then-current Subscription Term and billed to Customer by Freshpaint.
5. CUSTOMER OBLIGATIONS
5.1. Data Collection
Subject to this Agreement and as further described in the Documentation, Customer may configure the Customer Data elements to be collected from Sources and shared with different Destinations. In some instances, as referenced in the Service dashboard and Documentation, enabling a third-party Destination involves implementing the third-party provider’s own SDK or code on Customer Properties. As a result, in these cases, certain default data designated by that Destination’s provider may be sent directly to Customer’s accounts with that Destination, rather than passing through the Service.
5.2. Rights in Customer Data
Customer is solely responsible for the accuracy, quality, content and legality of all Customer Data. Customer represents and warrants to Freshpaint that (1) Customer will comply with all applicable Laws in its use of the Services (including, if applicable, the California Consumer Privacy Act (CCPA), European Union Regulation 2016/679 and similar Laws governing cross-site tracking or automated decision-making) and (2) Customer has provided all disclosures and obtained all necessary rights, consents and permissions to collect, share and use Customer Data as contemplated in this Agreement (including granting Freshpaint the rights in Section 7.1(Customer Data) and Customer’s building, tracking, using, or sharing of any user profiles, traits, or audiences), without violation or infringement of (i) any third-party intellectual property, publicity, privacy, or other rights, or (ii) any terms of service, privacy policies, or other agreement governing the Customer Properties or Customer’s accounts with third-party Sources or Destinations. By enabling use of the Services with any Source or Destination, Customer authorizes Freshpaint to access Customer’s accounts with such Source or Destination solely for the purposes described in this Agreement. In addition, and solely to the extent necessary for Freshpaint to provide the Services to Customer and maintain Freshpaint’s integrations with Sources and Destinations, Customer agrees that Freshpaint may disclose Customer’s status as a Freshpaint customer and related technical Services data to the third-party providers of Customer’s Sources and Destinations.
5.3. No Prohibited Personal Information
Customer specifically agrees not to use the Services to collect, store, process or transmit any Prohibited Personal Information, unless otherwise set forth in Customer’s applicable Order Form. Customer agrees and acknowledges that Freshpaint is not a payment card processor and that the Service is not PCI DSS compliant. For the avoidance of doubt, Freshpaint shall have no liability under this Agreement for claims arising from or related to Prohibited Personal Information submitted by Customer to the Service in violation of this Agreement or an applicable Order Form.
5.4. Protected Health Information
Customer agrees not to use the Services to collect, store, process or transmit any patient, medical or other Protected Health Information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”), unless and until a Business Associate Agreement (“BAA”) is executed and in place between Customer and Freshpaint.
5.5. Customer HIPAA Obligations
Customer agrees that it:
(a) will promptly notify Freshpaint of any restriction to the Use or Disclosure of PHI that Customer has agreed to or must comply with in accordance with 45 C.F.R. § 164.522 and HITECH § 13405(a), to the extent that such restriction may affect Freshpaint;
(b) will promptly notify Freshpaint of any changes in, or revocation of, permission by Individuals to Use or Disclose their PHI, if such changes affect Freshpaint’s permitted or required Uses or Disclosures hereunder or in any BAA between the Parties;
(c) will promptly notify Freshpaint of any limitation(s) in Customer’s Notice of Privacy Practices in accordance with 45 C.F.R. § 164.520, to the extent that such limitation(s) may affect Freshpaint’s Use or Disclosure of PHI; and
(d) has obtained, and will obtain, from Individuals any consents, authorizations, or other permissions necessary or required by Law for Freshpaint and Customer to fulfill their obligations hereunder.
5.6. Customer Security Responsibilities
Customer is responsible for security relating to its environment and databases and security relating to its configuration of the Services as well as the configuration of access permissions and security controls for third parties engaged to perform professional services related to the Services. This includes implementing and managing procedural, technical, and administrative safeguards on its software and networks sufficient to: (a) ensure the confidentiality, security, integrity, and privacy of PHI in transit, at rest, and in storage; (b) protect against any anticipated threats or hazards to the security and integrity of PHI; (c) protect against any unauthorized processing, loss, use, disclosure or acquisition of or access to PHI; and (d) meet their Privacy and Security Rules obligations. Notwithstanding any other provision of this Agreement or any other agreement related to the Services (including, without limitation, a Business Associate Agreement between the parties), Freshpaint will have no obligations or liability as to any breach or loss resulting from: (x) Customer’s environment, databases, systems, or software, (y) Customer’s security configuration or administration of the Services, or (z) Customer’s transmission of PHI outside of the Service or other secure transmission methods expressly authorized by Freshpaint (e.g. Freshpaint’s email notification service intended for customer support or via support chat).
5.7. Appropriate Use and Controls of the Service
Customer is responsible for implementing appropriate privacy and security safeguards in order to protect Customer’s PHI in compliance with HIPAA, this Agreement, and any Business Associate Agreement between the parties. Customer is solely responsible for configuring certain aspects of the Services, including: (a) assigning user access based on individuals permitted to access PHI and other sensitive data; (b) deauthorizing personnel who no longer need access to the Services in a timely manner; (c) not sharing PHI via the Services with a third-party unless a Business Associate Agreement is in place with the third-party; (d) not including PHI in any event names; (e) not including PHI in any Autotrack event filters; (f) configuring any destinations in a secure way; (g) maintaining configuration of destinations and removing destinations that are no longer used, can no longer access PHI, or other security or privacy concerns; (h) setting up any API usage in a secure way; (i) not allowing PHI to be transmitted to Freshpaint outside of the Service or other secure transmission methods expressly authorized by Freshpaint (e.g. via Freshpaint’s email notification service or support chat); (j) at least quarterly, performing an audit on all users, groups, permissions, roles, API keys, Destinations, Sources, and additional access avenues for appropriateness.
5.8. Customer’s Database Security Controls
In some instances, in order to use the Services, Customer must authorize the Services to access Customer’s databases or other third-party Sources and Destinations. When granting authorization, Customer shall follow the principle of least privilege to Customer database information that is accessible by the Services. Customer shall also ensure that all connections to the database are encrypted in transit, and if using an SSH tunnel connection, that a tunnel server is employed. Customer shall allowlist external access to permit Freshpaint specific IP addresses. To the extent enabled by Customer, Freshpaint shall not be responsible for any breach or loss of PHI to the extent Customer provides the Services with insecure access to Customer’s databases.
6. INFORMATION SECURITY AND PRIVACY COMPLIANCE
Freshpaint’s performance under this agreement will be in compliance with all applicable privacy Laws. Freshpaint will maintain appropriate, commercially reasonable technical and organizational measures to protect the security, confidentiality and integrity of all Customer Data and prevent unauthorized access, use, alteration, or disclosure of the Service or Customer Data. Freshpaint will not materially decrease the overall security of the Service during the term of the Agreement.
7. OWNERSHIP
7.1. Customer Data
As between the Parties, Customer shall retain all right, title, and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Freshpaint. Subject to the terms of this Agreement, Customer hereby grants to Freshpaint a non-exclusive, worldwide, royalty-free and fully paid license during the Subscription Term to use, copy, store, transmit, modify, create derivative works of, and display the Customer Data solely to the extent necessary to provide the Service to Customer.
7.2. Freshpaint Technology
This is a subscription agreement for access to and use of the Service. Customer agrees that Freshpaint or its suppliers retain all right, title, and interest (including all patent, copyright, trademark, trade secret, and other intellectual property rights) in and to the Service, all Documentation, and any and all related and underlying technology and documentation and any derivative works, modifications, or improvements of any of the foregoing, including as may incorporate Feedback (as defined below). Except as expressly set forth in this Agreement, no rights in the Service or any Freshpaint technology are granted to Customer.
7.3. Feedback
Customer, from time to time, may submit comments, questions, suggestions, or other feedback relating to any Freshpaint product or service to Freshpaint (“Feedback”). Customer grants Freshpaint a worldwide, perpetual, irrevocable, royalty-free license to use and to incorporate such Feedback into the Service, provided that Customer and Customer’s Authorized Users shall not be personally identified in connection with any such Feedback.
7.4. Aggregated Anonymous Data
Notwithstanding anything to the contrary herein, Customer agrees that Freshpaint may obtain, process, anonymize and aggregate Usage Data (“Aggregated Anonymous Data”), and Freshpaint may use the Aggregated Anonymous Data to maintain, analyze, improve, support, and operate the Service. Aggregated Anonymous Data does not contain Customer Data and does not in any way personally identify Customer or Customer’s Authorized Users.
8. TERM AND TERMINATION
8.1. Term
This Agreement is effective as of the Effective Date and unless earlier terminated as provided in this Section, will continue in full force and effect until the Subscription End Date of the last active Order Form in effect between the Parties.
8.2 Renewal
Unless otherwise set forth in the applicable Order Form, upon the expiration of each Order Form, the Order Form will automatically renew for a consecutive renewal Subscription Term of the same duration as the initial Subscription Term or then-current renewal Subscription Term. Either Party may terminate such Order Form by providing the other Party written notice of such termination at least thirty (30) days prior to the Subscription End Date of any then-current Order Form.
8.3. Termination for Breach
Either Party may terminate this Agreement (including all related Order Forms) if the other Party (a) materially breaches this Agreement or an Order Form and fails to cure such material breach (including a failure to pay fees not disputed in good faith or comply with applicable scope of use restrictions set forth herein) within thirty (30) days after receiving written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against such Party and not dismissed within sixty (60) days thereafter. For clarity, nothing in this Section 8.3 limits Freshpaint’s right to Suspend Customer’s or any Authorized User’s access to the Service pursuant to Section 8.4 (Effect of Termination) below. If an Order Form or Agreement is terminated by Customer due to Freshpaint’s material breach, any related prepaid fees for Service(s) not yet provided to Customer by Freshpaint will be refunded.
8.4. Effect of Termination
Upon any expiration or termination of this Agreement for any reason whatsoever, all rights granted to Customer under this Agreement will cease to exist and Customer shall immediately stop any and all use of and access to the Service (including any and all related Freshpaint technology), cease distributing any Freshpaint Code installed on Customer Properties, and delete (or, at Freshpaint’s request, return) any and all copies of the Documentation, any Freshpaint passwords or access codes and any other Freshpaint Confidential Information in its possession.
Upon termination of this Agreement or an applicable Order Form, Freshpaint shall, within thirty (30) business days of Customer’s written request (provided such request is made within five (5) business days of termination), provide Customer, without charge, a final extract of Customer Data in a commercially reasonable format. Further, Freshpaint shall, upon Customer’s written request, certify to Customer the destruction of any Customer Data within the possession or control of Freshpaint, but such destruction shall occur only after the Customer Data has been returned to Customer. Customer acknowledges that following termination, it shall have no further access to any Customer Data in the Service, and Freshpaint may securely and permanently delete such data at any time after termination (provided that Freshpaint has responded to Customer’s timely written request for the return of Customer Data). Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
8.5. Suspension of Service
In addition to Freshpaint’s termination and other rights under this Agreement, Freshpaint reserves the right to suspend Customer’s access to the Service (and any related services), in whole or in part, without liability to Customer and with immediate effect: (i) if Customer’s account is ninety (90) days or more overdue; (ii) if Customer exceeds any scope of use restrictions set forth in the applicable Order Form; (iii) if Customer has materially breached its express obligations under Sections 2.5 (Customer Use Restrictions) or 5 (Customer Obligations); or (iv) to prevent imminent harm to the Service or other Freshpaint customers.
8.6. Survival
The following Sections shall survive any expiration or termination of this Agreement: Section 2.5 (Customer Use Restrictions), Section 3 (Beta Releases), Section 4 (Fees and Payment), Section 5.2 (Rights in Customer Data), Section 7 (Ownership), Section 8 (Term and Termination), Section 9 (Freshpaint Warranty and Warranty Disclaimer), Section 10 (Indemnification Obligations), Section 11 (Limitation of Liability), Section 12 (Confidentiality), and Section 14 (General Terms).
9. FRESHPAINT WARRANTY AND WARRANTY DISCLAIMER
Freshpaint Warranty. Freshpaint represents and warrants that it: (a) owns or otherwise properly licenses the Service and has the full power and authority required to use, publish, transfer and/or license any rights and interests in and to the Service to Customer; (b) the Service will be provided to and performed for Customer in a professional and workmanlike manner in accordance with prevailing industry standards for similar services; and (c) the Service and its performance of the Service shall be in compliance with all applicable Laws.EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SERVICE AND ALL RELATED SERVICES ARE PROVIDED “AS IS”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FRESHPAINT SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. FRESHPAINT DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES FRESHPAINT WARRANT THAT IT WILL REVIEW CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN CUSTOMER DATA WITHOUT LOSS. CUSTOMER UNDERSTANDS THAT CUSTOMER DATA IS SHARED WITH DESTINATIONS AT CUSTOMER’S ELECTION AND FRESHPAINT MAKES NO REPRESENTATIONS OR WARRANTIES FOR AND TAKES NO RESPONSIBILITY FOR ANY DESTINATION’S USE OR PROTECTION OF CUSTOMER DATA ONCE IT HAS BEEN SHARED. CUSTOMER UNDERSTANDS THAT FRESHPAINT MAKES NO REPRESENTATIONS OR WARRANTIES FOR AND TAKES NO RESPONSIBILITY FOR CUSTOMER DATA SHARED BY CUSTOMER WHEN UTILIZING FRESHPAINT’S VIDEO SERVICE AND THAT CUSTOMER IS SOLELY RESPONSIBLE FOR THE CONTENT OF ANY CUSTOMER DATA IT ELECTS TO DISPLAY USING THE FRESHPAINT VIDEO SERVICE. FRESHPAINT SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF FRESHPAINT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
10. INDEMNIFICATION OBLIGATIONS
10.1. Freshpaint Indemnification.
Freshpaint shall indemnify, defend and hold harmless Customer from and against any and all third-party claims costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs), except where caused in whole or in part by Customer’s use of Service in violation of this Agreement, to the extent such claim: (a) alleges that the Service infringes or misappropriates any such third-party’s intellectual property rights under U.S. patent, copyright, trademark or other applicable intellectual property law. The foregoing notwithstanding Freshpaint shall have no obligation under this section and will not otherwise be liable to the extent any such claim is based on: (i) use of the Service in combination with any other hardware, software, data, or content not authorized by Freshpaint, (ii) Customer Data, or (iii) use of the Service in a manner not in accordance with this Agreement and the Documentation; or(b) is based on or alleges Freshpaint’s violation of applicable Laws.
10.2. Customer Indemnification. Customer shall indemnify, defend, and hold harmless Freshpaint from and against any and all third-party claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) to the extent such claim alleges, arises from or is related to:
(a) any Customer Data ingested or consumed into the Service;
(b) Customer’s breach of this Agreement ; or
(c) Customer’s violation of applicable Laws.
10.3 Indemnification Procedures.
The obligations of each indemnifying Party are conditioned upon receipt of the following from the Party seeking indemnification: (i) prompt, detailed written notice of such claim (the indemnifying Party will not be obligated to indemnify only the extent it is materially prejudiced by any delay in such notice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonable cooperation of the indemnified Party, at the indemnifying Party’s expense.
11. LIMITATION OF LIABILITY
11.1. Consequential Damages Waiver
EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
11.2. Liability Cap
EACH PARTY’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE SERVICE OR THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO FRESHPAINT DURING TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE INITIAL EVENT RESULTING IN SUCH LIABILITY.
11.3. Nature of Claims and Failure of Essential Purpose
The Parties agree that the waivers and limitations specified in this Section 11 (Limitations of Liability) apply regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
12. CONFIDENTIALITY
Each party (as “Receiving Party”) agrees and acknowledges that the Confidential Information (as defined below) of the disclosing party (“Disclosing Party”) constitutes valuable confidential and proprietary information. “Confidential Information” means information in any form that is either identified as proprietary or confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Confidential Information includes but is not limited to information such as code, inventions, know-how, trade secrets, business, technical and financial information, and any information that provides a competitive advantage. Any non-public aspects of the Service, and all Order Forms (including pricing) shall be deemed Confidential Information of Freshpaint without any marking or further designation. Customer Confidential Information includes Customer Data. Except as expressly authorized herein, the Receiving Party shall (1) hold in confidence and not disclose any Confidential Information to third parties; (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement; and (3) use the same degree of care as it uses to protect its own Confidential Information of a like nature, but in any event not less than a reasonable degree of care to prevent the unauthorized use or disclosure of the Disclosing Party’s Confidential Information.
The Receiving Party may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know to such information for the purpose of performing their respective duties (including, for Freshpaint, the subcontractors referenced in Section 14.10); provided that each such person is bound to confidentiality obligations no less restrictive than those in this Agreement, and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 12. The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided, to the extent permissible under applicable law, the Receiving Party notifies the Disclosing Party in advance of any such disclosure and cooperates in any reasonable effort to obtain confidential treatment at the Disclosing Party’s expense. The Receiving Party acknowledges that unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such use or disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. The Parties acknowledge, intend, and agree that this Section 12 and the obligations set forth herein supersede any and all prior confidentiality, non-disclosure, or similar agreements between the Parties.
13. MARKETING
Customer grants Freshpaint the right to use its name and logo as a reference for marketing or promotional purposes on Freshpaint’s website and in other public or private communications or disclosures with its existing or potential customers, subject to Customer’s standard trademark usage guidelines as provided by Customer to Freshpaint from time to time. Freshpaint will promptly stop doing so upon Customer’s written request via email to legal@freshpaint.io.
14. GENERAL TERMS
14.1. Assignment
This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either Party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such Party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 14.1 will be null and void.
14.2. Severability
If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
14.3. Governing Law; Jurisdiction and Venue
This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. 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.
14.4. Attorneys’ Fees and Costs
The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
14.5. Notice
Any notice or communication to Freshpaint that is required or permitted under this Agreement shall be in writing to Freshpaint at the address set forth for Freshpaint in Section 14.6 (Contact Information) below or at such other address as directed by Freshpaint, and shall be deemed to have been received by Freshpaint (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch; (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; or (iv) if given by email on the next business day after such notice is sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered. Freshpaint may send non-legal notices to Customer through Customer’s email address designated on an applicable Order Form or through the Service. All such non-legal notices given to Customer shall be deemed to have been received by Customer upon delivery. Any legal notices to Customer that are required or permitted under this Agreement shall be in writing to Customer using the Customer contact information set forth in Customer’s then-current Order Form, and shall be deemed to have been received by Customer (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch; (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; or (iv) if given by email on the next business day after such notice is sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered.
14.6. Contact Information
Any Customer questions, complaints or claims regarding the Service should be sent to the following address:
Perfalytics, Inc.
5214F Diamond Heights Blvd
#3502
San Francisco, CA 94131
Cc (Email):
legal@freshpaint.io
14.7. Waivers
No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the Party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
14.8. Entire Agreement
This Agreement (including any Order Form incorporated herein) and its exhibits and attachments constitutes the entire understanding of the Parties relating to the subject matter hereof and supersedes and cancels all previous written and oral agreements and communications relating to such subject matter.
14.9. Force Majeure
Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure, or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
14.10. Subcontractors
Freshpaint may use the services of subcontractors and permit them to exercise the rights granted to Freshpaint in order to provide the Service under this Agreement. These subcontractors may include, for example, Freshpaint’s hosting, infrastructure, and CDN providers. Freshpaint remains responsible for compliance of any such subcontractor with the terms of this Agreement and the overall performance of the Service as required under this Agreement.
14.11 Changes to this Agreement
Freshpaint may modify this Agreement from time to time, by posting an updated version of this Agreement to Freshpaint’s website. For Customers subject to the terms of this Agreement, any updated Agreement will take effect when Customer enters into a new Order Form with Freshpaint and/or upon renewal, unless either Party elects not to renew pursuant to Section 8.2 (Renewal). Freshpaint may specify that an updated Agreement or portions thereof become effective during a then-current Subscription Term if the Agreement has been updated to comply with applicable law or is required to reflect updates to the Service or the introduction of new features or functionality to the Service.
14.12 Independent Contractors
The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other party’s behalf without the other Party’s prior written consent.
14.13. Export Control
In its use of or provision of the Service, each Party agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer shall not (and shall not permit any of its users to) access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer shall not submit to the Service any information that is controlled under the U.S. International Traffic in Arms Regulations.
14.14. Support Terms
Freshpaint offers the SLA available online at
http://www.freshpaint.io/sla, as applicable.
