3811 Ditmars Blvd,
New York, 11105-1803
LAST UPDATED: 1 February 2023
If you do not agree to this Agreement, you do not have our permission to, and may not use the Services in any way. The Services are offered to you conditional on your acceptance of this Agreement.
We may make changes to this Agreement from time to time. When we do, we will revise the “Last Updated” date given above. Modifications are effective upon publication. It is your responsibility to review this Agreement frequently and to remain informed of any changes to them. The then-current version of this Agreement will supersede all earlier versions. You agree that your continued use of our Services after such changes have been published will constitute your acceptance of such revised Agreement. Disputes arising under this Agreement will be resolved in accordance with the version of these terms that was in effect at the time the dispute arose.
- Definitions and Interpretation
"Acceptable Use Policy" or "AUP" means Provider’s acceptable use policy set out in www.paddle.com/legal/retain-and-metrics-acceptable-use-policy (or such other URL that Provider may provide from time to time);
"Account" means the account you will set up on the Dashboard to use the Services and access the Content.
"Additional Services" means any other service offered by Provider or an Affiliate Entity, that may be used in conjunction with the Services.
"Affiliate Entity" means any corporation, partnership, limited liability company or other form of legal entity, which directly or indirectly controls, is controlled by or is under joint control, from time to time.
"Applicable Data Protection Laws" means:
- To the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
- To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Customer is subject, which relates to the protection of personal data.
- To the extent that the California Privacy Acts apply, the law of the state of California, which relates to the protection of personal data.
"Applicable Laws" means all applicable laws, statutes, regulation and codes from time to time in force.
"California Privacy Acts" means the California Consumer Privacy Act of 2018 (“CCPA”) and the California Privacy Rights Act of 2020 (“CPRA”).
"Confidential Information" means information, whether written or oral, in any form, including without limitation, information relating to the development, products, trade secrets, business plans, suppliers, customers, finances, personnel data, and other material or information considered proprietary by the disclosing party;
"Content" means the website, application, software, text, graphics, images, designs, Intellectual Property, analysis and data displayed in the Dashboard connection with the Services.
"Customer Data" means all data provided by Customer in their use of the Services, including all data imported from any Linked Accounts and excluding Feedback.
"Dashboard" means the dashboard found at www2.profitwell.com/acc/login/ (or such other URL that Provider may provide from time to time) where you are able to access your Account, and Content.
"Data Processing Addendum" means Provider’s data processing terms, set out at https://www.paddle.com/legal/data-processing-addendum (or such other URL that Provider may provide from time to time) that governs the processing of personal data by Provider in accordance with the Applicable Data Protection Laws.
"EU GDPR" means the General Data Protection Regulation ((EU) 2016/679), as it has effect in EU law
"Feedback" means any feedback, comments, suggestions, aggregated Customer Data and usage data, provided by Customer in conjunction with their use of the Services.
"Intellectual Property Rights" means patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
"Linked Product" means any third party platform or source of data that you link to your Account as part of Customer Data.
"Metrics" means Provider’s proprietary subscription analytics technology, made available to Customer via the Dashboard.
"Order Form" means an order form for the Services, or part thereof, that is executed by the parties.
"Retain" means Provider’s proprietary retention and subscription recovery technology, made available to Customer via the Dashboard.
"Services" means Retain and Metrics.
"Term" means subscription period stated in the Order Form.
"UK GDPR" has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
1.3 In this Agreement, unless the context requires otherwise:
(i) any clause, schedule or other headings in this Agreement is included for convenience only and shall have no effect on the interpretation of the Agreement;
(ii) a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
(iii) a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
(iv) a reference to a ’company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
(v) a reference to a gender includes each other gender;
(vi) words in the singular include the plural and vice versa;
(vii) any words that follow 'include', 'includes', 'including', ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
(viii) a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email);
(ix) a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time;
(x) a reference to legislation is a reference to such legislation as amended or re-enacted includes all subordinate legislation made from time to time under that legislation as amended or re-enacted.
- Use of the Services
2.1 Subject to the terms of this Agreement and the AUP, Provider grants Customer the non-exclusive, revocable, non-transferable right to access the Services via the Dashboard and Account solely to the extent necessary to use the Services and access Content.
2.2 Your access to the Services is conditional on your compliance with this Agreement and you agree that Customer shall:
(i) not use the Services in any unlawful manner or for any unlawful purpose;
(ii) use Metrics and Content for its internal use only;
(iii) not modify the Services or create derivative works thereof, and not otherwise copy or distribute the Services except as expressly allowed hereunder or with the express consent of Provider;
(iv) access the Services through the Dashboard;
(v) comply at all times with the AUP and this Agreement;
2.3 Provider may provide the Services in conjunction with an Additional Service and nothing in these terms shall be interpreted as amending or altering the terms under which those Additional Services are offered.
- Ownership and Data
3.1 The Services are the property of Provider, its Affiliate Entities and licensors, where applicable. Provider retains any and all rights, title and interest in and to the Services (including all Intellectual Property Rights), including all copies, modifications, extensions and derivative works thereof, unless expressly granted to Customer by this Agreement. All rights not expressly granted to Customer are reserved and retained by Provider.
3.2 Subject to clause 3.4, all Customer Data is and shall remain the property of Customer. You hereby grant to Provider a non-exclusive and non-transferable right and licence during the term of the Agreement to store, access, retrieve and process Customer Data as necessary to provide the Service, monitoring the use of the Service, improving or enhancing the Service and other services offered by Provider or its Affiliated Entities.
3.3 To the extent that you use any Linked Product in conjunction with the Services, you represent and warrant that your use of the Linked Product is in compliance with any terms associated therewith between Customer and the relevant third parties and that you shall only use a Linked Account that is yours. Provider has no responsibility or liability with respect to any Linked Account.
3.4 You acknowledge and agree that any Feedback will be the sole and exclusive property of the Company and you hereby irrevocably assign to us any right, title and interest in and to all Feedback.
- Fees and Payments
4.1 Provider may charge a fee for certain aspects and / or features of the Services, subject to an Order Form or statement of work, where applicable. Customer shall pay all fees as they are stated in the applicable Order Form or statement of work, in addition to all applicable tax.
4.2 Metrics is a free service and Provider shall not charge any fee for Metrics or the Content. In the event that there is a tax burden as a result of Customers use of Metrics (“Tax Liability”), Customer shall bear the Tax Liability in full and make Provider whole to the extent of the Tax Liability. Failure to remit any applicable Tax Liability to the Provider within a reasonable period may result in access to Metrics being temporarily suspended until the liability is paid in full.
4.3 Any Fee charged by Provider may be grossed up by any corporate withholding taxes that are applicable in the country of payment of Customer, such that Provider receives the full amount due after the deduction of withholding tax. To the extent it is available, Provider will supply a tax residence certificate in order for Customer to either reduce or mitigate the withholding tax under an applicable tax treaty between Provider and Customer's countries of tax residence.
4.4 If the Customer fails to make a payment due to Provider under this Agreement by the due date then, without limiting Provider's remedies under this Agreement, Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgement. Interest under this clause will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
5.1 Unless otherwise stated in an Order Form or statement of work, either party may terminate this Agreement at any time by giving the other party at least 30 days’ prior notice in writing.
5.2 Either party may terminate this Agreement by immediate notice in writing to the other if:
(i) the other party commits a material breach of any term of this agreement and fails to remedy that breach within a period of 14 days after being notified to do so;
(ii) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
(iii) any consent, licence or authorisation held by the other is revoked or modified such that the other is no longer able to comply with its obligations under the Agreement or receive any benefit to which it is entitled;
(iv) There is suspected fraudulent / criminal activity or non-compliance with the AUP by the Customer.
(v) the other stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so, or is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction, unless such termination is not lawful under applicable law.
5.3 Without affecting any other right or remedy available to it, the Customer may terminate this agreement with immediate effect by giving written notice to Provider if Provider commits a breach of the data protection obligations in the Data Processing Addendum.
5.4 Termination or expiry of this Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination.
5.5. Upon termination or expiration of the Agreement, Provider will, upon request return to you or destroy (i) all Customer Data; (ii) all manuals, documentation, product literature, fee schedules and other written materials provided by you; or (iii) all Confidential Information and other property of you, provided that such materials or information are in its possession or under its control, unless required to retain the data to comply with or demonstrate compliance with a legal obligation, within thirty (30) days.
- Representations and Warranties
6.1 You represent and warrant
(i) The information you provide as part of your Account is accurate and up to date;
(ii) you have the right and authority to enter into and perform its obligations under the Agreement;
(iii) You are the owner of Customer Data, including any Linked Product
(iv) to your knowledge none of the Customer Data, including Linked Product contains any content, materials, link, advertising or services that actually or potentially violate any applicable law or regulation, including data protection laws, or infringes or misappropriates any proprietary, intellectual property, contract or tort right of any person or entity;
(v) there is no action, suit or proceeding at law or in equity now pending or, to your knowledge, threatened by or against or affecting you which would substantially impair your right to carry on your business as contemplated herein or adversely affect your financial condition or operations; and
(vi) your use of the Services and the performance by you of any obligations under the Agreement do not and will not conflict with or violate any agreement or other instrument with a third party applicable to you or otherwise infringe upon the rights of any third party;
(vii) you have have complied with and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including, without limitation, any relevant data protection or privacy laws);
(viii) you will at all times comply with all Applicable Law, Applicable Data Protection Laws, applicable Provider policies and the Data Processing Addendum.
6.2 You agree to indemnify, defend and hold harmless Provider, its employees, officers and directors, or users from and against any and all claims, liabilities, penalties, settlements, judgments, fees (including reasonable legal fees) arising from or in relation to:
(i) any information that you or anyone using your Account may submit or access in the course of using the Services, including Customer Data;
(ii) your breach of any representation or warranty in, or violation of the terms of the Agreement or any agreement or other instrument with a third party applicable to you;
- Disclaimer of Warranties and Limitation of Liability
7.1 Provider disclaims any and all warranties, representations and conditions, whether express, implied or statutory regarding the Services and Content to the full extent permitted by law. Without limiting the generality of the foregoing, the Services and Content are provided "as-is" and without warranties of any kind, including, without limitation, any warranties of performance or implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. Further, Provider does not make, and has not made, any representation or warranty that the Services and Content are accurate, complete, reliable, current, error-free, or virus-free or that the operation of the Services will be uninterrupted. Some jurisdictions do not allow exclusion of an implied warranty, so this disclaimer may not apply to you.
7.2 To the fullest extent permitted by applicable law, in no event will Provider, its partners, service providers, affiliates or any of their respective directors, officers, employees or agents be liable to the other party for any special, incidental, indirect, punitive, exemplary or consequential damages, whether foreseeable or unforeseeable, which may arise out of or in connection with this Agreement, regardless of whether either party has been apprised of the possibility or likelihood of such damages occurring, or whether claims are based or remedies are sought in contract or tort otherwise.
7.3 Provider's aggregate liability, howsoever arising and whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise, under the Agreement shall not exceed $5,000.
7.4 Notwithstanding the foregoing, neither party limits its liability in respect of (i) fraud or fraudulent misrepresentation; (ii) death or personal injury caused by negligence; (iii) a breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or (iv) any matter for which it would be unlawful for the parties to exclude liability.
8.1 The parties acknowledge that they may share Confidential Information for the purposes of this Agreement. The receiving party shall not use, disclose, or otherwise take any advantage of such Confidential Information, except as expressly permitted in the Agreement.
8.2 Each party shall exercise the same degree of care to avoid the publication or dissemination of the other party's Confidential Information as it affords to its own Confidential Information of a similar nature which it desires not to be published or disseminated, which in any event shall not be less than reasonable care.
8.3 Confidential Information disclosed under the Agreement shall only be used by the receiving party for the purpose of the Agreement or the performance of its obligations hereunder. The receiving party agrees not to use the disclosing party’s Confidential Information for its own benefit or for the benefit of any third party.
8.4 The obligation of the parties not to disclose confidential information shall survive the termination or expiry of the Agreement.
8.5 Notwithstanding the foregoing, neither party shall be obliged to protect Confidential Information of the other party which:
(i) is rightfully received by the receiving party from another party without confidential obligation to such party, or
(ii) is known to or developed by the receiving party independently without use of the Confidential Information, or
(iii) is, or becomes generally known to the public by other than a breach of duty hereunder by the receiving party; and
(iv) a receiving party may disclose Confidential Information that is required to be disclosed pursuant to a requirement of a government agency or law so long as the receiving party provides prompt notice to the disclosing party of such requirement prior to disclosure (where permitted under applicable law).
9.1 Both parties represent and warrant that they will at all times comply with the Applicable Data Protection Laws
10.1 The parties agree that this Agreement constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
10.2 Each party acknowledges that it has not entered into this Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Agreement. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in this Agreement.
10.3 You may not assign, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without Provider’s prior written consent, such consent not to be unreasonably withheld or delayed. Any assignment in violation of this Clause 10.3 is void.
10.4 A party shall not be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from an event, circumstance or cause beyond a party’s reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
10.5 Unless otherwise expressly agreed, no delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
10.6 Except as expressly provided in this Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
10.7 If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.
10.8 Each party shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to it and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with this Agreement.
10.9 The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.
10.10 Any notice (save for notices given in legal proceedings or arbitration) given to a party under or in connection with this Agreement shall be in writing or by email to the address given for the relevant party herein or such other address that a party notifies the other party of at any time and shall be given and deemed received by first class post on the second Business Day after postage or, if given by hand on delivery. Provider’s email address for such purposes is firstname.lastname@example.org and the Customer email address is as provided in the Account.
- Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the law of England and the parties irrevocably agree that the English courts shall have exclusive jurisdiction over any claim or matter arising under or in connection with this Agreement.