Terms Of Service (TOS)
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE POWER ACCELERATE SERVICE OFFERED BY POWER ACCELERATE BV (“POWER ACCELERATE” OR “COMPANY”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH COMPANY WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”) OR BY ACCESSING OR USING THE POWER ACCELERATE SERVICE IN ANY MANNER, YOU (“YOU” OR “CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS (THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT; IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, REFERENCES TO “CUSTOMER” AND “YOU” IN THIS AGREEMENT, REFER TO THAT ORGANIZATION OR ENTITY. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE POWER ACCELERATE SERVICE IN ANY MANNER.
“” means, with respect to a party, any entity which directly or indirectly Controls, is Controlled by, or is under common Control with such party where Control means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.
“” means all electronic data or information submitted to the Power Accelerate Service by Customer or submitted on behalf of Customer by a Third-Party Service.
“” means Customer’s and its Affiliates’ computer hardware, software and network infrastructure used to access the Power Accelerate Service.
“” means the published specifications of the Power Accelerate Service, as may be updated or amended from time to time, as determined and provided by Power Accelerate to Customer.
“” means the specific use limitations with respect to Customer’s access to and use of the Power Accelerate Service as specified in the corresponding Order, such as but not limited to: Seats and usage restrictions.
“” means a valid purchase, invoice or other ordering document specifying the Services to be provided under this Agreement, entered into between Customer (or a Partner on Customer’s behalf) and Power Accelerate or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“” means the Power Accelerate online, cloud-based feature flag management solution made available to its customer on a subscription basis, as further described in the corresponding Order and Documentation.
“” mean the fees payable to Power Accelerate for the Services, as outlined in the invoice. “” means a license granted by Power Accelerate for a single app to be migrated.
“” means the products and services that are provided by Power Accelerate and ordered by Customer hereunder, services purchased by Customer on Power Accelerate’s online purchasing portal; or services provided to Customer free of charge (as applicable) under a free trial.
“” means any data that constitutes sensitive personal data or special category data or like terms under applicable data privacy laws, intellectual property, proprietary business models, and any data which may be subject to the Gramm-Leach-Bliley Act (GLBA), the Payment Card Industry Data Security Standards (PCI Data Security Standards), or similar laws, government-issued identification numbers, account security information, individual financial account information, credit/debit/gift or other payment card information, account passwords, individual credit and income information.
“” as it relates to an Order means the applicable term described in each Order, and as it relates to this Agreement, is as defined in Section 10.1 below.
“” means any online applications, integrations, offline software products or code, or systems not developed by Power Accelerate that the Customer may choose to enable to connect with the Power Accelerate Service.
“” means Customer’s and its Affiliates and their respective employees, agents, contractors, service providers or consultants who access or use the Power Accelerate Service as authorized by Customer by the provision of a Seat.
2. POWER ACCELERATE RESPONSIBILIITES
Power Accelerate shall, upon Customer’s purchase of a subscription to the Power Accelerate Service hereunder, make the Power Accelerate Service available to Customer pursuant to this Agreement and the applicable Order during the subscription Term, and grants to Customer a limited, non-sublicensable, non-exclusive, non-transferable (except as expressly permitted in Section 12.7 (Assignment)) right during the Term to allow its Users to access and use the Service in accordance with the Documentation, solely for Customer’s internal business purposes. Power Accelerate shall provide to Customer the corresponding level of support and meet service level agreement as agreed in the applicable Order (free support tier by default. The Support process and service Levels are described at the following URL: https://poweraccelerate.com/servicelevelagreement/.
: Power Accelerate will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, as described in the Security Program Addendum found at the following URL: https://poweraccelerate.com/spa/. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). Power Accelerate will provide the Power Accelerate Service in accordance with the Security Program Addendum and this Agreement.
: Any processing of Customer Data that constitutes personal data (as defined by applicable laws) is also governed by the Power Accelerate Data Processing Addendum (“DPA”), in the form made available at the Power Accelerate website at the following URL: https://poweraccelerate.com/dpa/, unless otherwise executed by the parties.
3. CUSTOMER RESPONSIBILITIES
Services are subject to usage limits specified in Order and Documentation, including the number of Seats and credits. If Customer exceeds a contractual usage limit, Power Accelerate may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, despite Power Accelerate’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order for additional quantities of the applicable Services promptly upon Power Accelerate’s request, and/or pay any invoice for excess usage in accordance with Section 5 (Invoicing and Payment) below.
Customer will not:
Customer may choose to install or enable Third-Party Services for use with the Power Accelerate Service. Any use by Customer of any Third-Party Services is solely the responsibility of Customer and the applicable Third-Party Services provider. Customer acknowledges that, if enabled by Customer, providers of such Third-Party Services may have access to Customer or Other Data. To the extent Customer authorizes the access or transmission of Customer or Other Data through a Third-Party Service, such Third-Party Service terms will govern, and Power Accelerate will not be responsible for, any use, disclosure, modification or deletion of such Customer or Other Data by Third Party Services or for any act or omission on the part of such third-party provider or its service.
Power Accelerate may suspend Customer’s right to access or use any portion or all of the Power Accelerate Service immediately upon notice to you if we determine: (a) your use of the Power Accelerate Service (i) poses a security risk to the Power Accelerate Service or any third party, (ii) could adversely impact our systems, the Power Accelerate Service or the systems or content of any other customer, (iii) could subject Power Accelerate, our affiliates, or any third party to liability, or (iv) could be fraudulent. Additionally, Power Accelerate may suspend Customer’s right to access or use any portion or all of the Power Accelerate Services upon fifteen (15) days’ notice if Customer is in breach of either its obligations under this Section 3, or more than 30 days delinquent in its payment obligations under Section 5 below.
If we suspend your right to access or use any portion or all of the Power Accelerate Service: (a) you remain responsible for all fees and charges you incur during the period of suspension; and (b) you will not be entitled to any service credits under the Service Level Agreements for any period of suspension.
4. INTELLECTUAL PROPERTY, CUSTOMER DATA AND INFORMATION SECURITY
Power Accelerate retains all right, title and interest to all intellectual property rights in and to the Power Accelerate Service, the SDK, the Documentation, and all underlying technology, software, processes, algorithms, user interfaces, know-how and all modifications and derivative works thereof. Customer acknowledges and agrees that the Power Accelerate Service is a software-as-a-service offering, and that Customer is not entitled to a copy of the underlying software or code.
Customer hereby grant’s Power Accelerate a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, create derivative works of, and otherwise commercially exploit any suggestion, feedback or ideas Customer submits to Power Accelerate, and Customer acknowledges and agrees that Power Accelerate assumes no obligation of confidentiality or nondisclosure, express or implied with respect to such feedback or ideas submitted to Power Accelerate.
Customer hereby grants to Power Accelerate and its Affiliates a worldwide, non-exclusive, limited-term license to access, use, process, copy, distribution, perform, export, and display Customer Data only as necessary (a) for Power Accelerate to provide, maintain, and update the Service; (b) to prevent or address service, security, support, or technical issues; (c) as required by law and subject to the compelled disclosure requirements of Section 8.3 (Compelled Disclosure) below; and (d) as expressly permitted in writing by Customer. Customer is solely responsible for Customer Data, and Customer represents and warrants that it has secured all rights in and to Customer Data from its Authorized Users or third parties as may be necessary to grant this license.
Customer agrees that Power Accelerate may collect, use, and disclose anonymized or aggregated data (“Anonymized Data”) for its business purposes, including industry analysis, benchmarking, and analytics. All data collected, used, and disclosed will be in aggregate and deidentified form only and will not identify Customer, its Authorized Users, or Customer Data. The rights to Anonymized Data shall survive termination of this Agreement.
5. INVOICING AND FEES
For Orders purchased directly with Power Accelerate, Customer shall pay all fees specified (the “Fees”). Each Order with Power Accelerate shall be signed by both parties or issued by Power Accelerate and acknowledged by Customer via the issuance of a purchase order that incorporates the Order by reference only when finally accepted by Power Accelerate. Except as otherwise specified herein or in an Order: (a) Fees are based on actual credit purchase; (b) payment obligations are non-cancellable, and (c) all Fees paid are non-refundable. Customer is responsible for ensuring that it has provided Power Accelerate with the most current billing information. In the event Customer issues purchase orders in its normal course of business and furnishes Power Accelerate with a purchase order number in advance of the invoice date, Power Accelerate will make every reasonable effort to reference such PO number on the invoice Invoices will be sent via email to the email indicated in the Billing Information section of each Order Form. Unless otherwise specified in the Order, payment for any fees will be due within thirty (30) days of the date of invoice.
For any Services purchased by Customer through a Partner, the pricing and payment terms are established through the order or agreement entered into by and between Customer and the Partner and all payments will be made directly to Partner. If a Partner is entitled to terminate or suspend any Services purchased by Customer due to non-payment and notifies Power Accelerate, Power Accelerate may suspend or terminate the Services identified by the Partner. Subsequently, if Partner notifies Power Accelerate that Customer is entitled to reinstatement of any Services purchased by Customer pursuant to the Order, and Customer is otherwise in compliance with the terms of this SaaS Agreement, Power Accelerate shall reinstate the Services as soon as reasonably practicable. Power Accelerate shall not be liable to Customer or to any third party for any liabilities, claims, or expenses arising from or relating to any suspension or termination of Services in accordance with this Section 5.2.
Customer agrees that its subscription or other purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Power Accelerate regarding future functionality or features.
6. REPRESENTATIONS AND WARRANTIES
Each party represents and warrants that it has all necessary right, title and authority to enter into and perform under this Agreement. Customer warrants that it has the rights to provide and use any and all Customer and Other Data in accordance with the terms of the Agreement. Each party warrants that it will conform to all applicable laws in its performance hereunder.
Power Accelerate warrants that the operation of the Power Accelerate Service will substantially conform in all material respects to the Documentation during the Term. Customer will provide prompt written notice of any non-conformity.
. As Customer’s sole and exclusive remedy, and Power Accelerate’s entire liability for any breach of the foregoing warranty, Power Accelerate will remedy the nonconformance, or if Power Accelerate is unable to do so, terminate the applicable Order(s) and refund any unused, prepaid Fees with respect to the applicable Order calculated on a pro-rata basis.
Customer shall defend, indemnify and hold Power Accelerate and its Affiliates (collectively, “Power Accelerate BV”) harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against Power Accelerate and any member of Power Accelerate BV, by a third party either (a) alleging that the Customer or Other Data created and stored by Customer in the Power Accelerate Service or otherwise provided to Power Accelerate in connection with the Agreement violates any applicable law or regulation; or (ii) arising out of Customer’s obligations under Section 3 (Customer Responsibilities).
Power Accelerate agrees to (a) promptly give written notice of the Claim to Customer (provided that the obligations under this Section 7 shall not be reduced by the failure to give such notice except to the extent the Customer is materially prejudiced by such failure); (b) give the Customer sole control of the defence and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases Power Accelerate of all liability and obligation); and (c) provide to Customer, at Customer’s cost, all reasonable assistance.
As used herein, “Confidential Information” means all non-public information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential, including the terms and conditions of this Agreement, Power Accelerate’s technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any confidentiality obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any confidentiality obligation owed to Disclosing Party or access to or reliance on Disclosing Party’s Confidential Information; or (iv) is received from a third party without breach of any confidentiality obligation owed to Disclosing Party.
. Receiving Party shall not disclose or use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except as allowed by the terms of this Agreement or with Disclosing Party’s prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own Confidential Information of like kind (but in no event using less than reasonable care). Power Accelerate represents and warrants that it will maintain the confidentiality of Customer and Other Data and, except as required by applicable law, will not disclose Customer or Other Data to any third party for any purpose other than to provide the Power Accelerate Service. However, Power Accelerate may compile aggregate data related to Customer’ s usage of the Power Accelerate Service and may use and/or disclose such aggregate data to third parties, to the extent that Customer is not identified as the source of such data and as long as the data does not reveal the identity, whether directly or indirectly, of any individual, or specific data entered by or relating to any individual. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party’s Confidential Information.
If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with (a) prior written notice of such compelled disclosure (to the extent legally permitted) and (b) reasonable assistance in contesting the disclosure, at Disclosing Party’s option and cost. Any actual disclosure shall be limited to the minimum amount of information necessary to comply with the disclosure demand as advised by legal counsel.
If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of confidentiality protections hereunder, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate.
Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party’s Confidential Information and, upon request and to the extent practicable, return to the Disclosing Party or destroy (at the Disclosing Party’s election) all materials containing such Confidential Information.
9. LIMITATION OF LIABILITY
EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND CLAIMS ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID OR PAYABLE TO POWER ACCELERATE DURING THE (12) TWELVE MONTHS PRIOR TO THE DATE OF THE CLAIM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. TERM AND TERMINATION.
This Agreement commences on the Effective Date and unless terminated as otherwise provided herein, shall continue until all Orders entered into under this Agreement have expired or been terminated. The Term applicable to each Order commences upon the effective date of such Order.
A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice to the other party of a material breach of this Agreement if such breach remains uncured at the expiration of such period; or (ii) immediately upon notice for an incurable material breach; (iii) immediately upon notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding.
The parties’ rights and obligations under Sections 1, 4, 5, 7.4, 8-12, and 13 shall survive termination of this Agreement.
Upon the effective date of termination of this Agreement Customer’s authorization to access and use the Power Accelerate Service will cease. Thirty (30) days following the termination of this Agreement Power Accelerate will have no obligation to maintain any Customer Data and will not retain copies or records of Customer Data in its system or otherwise.
If this Agreement is terminated by Customer in accordance with 11.2 above, Power Accelerate will refund Customer (or Partner if purchase was made through a Partner) any prepaid fees covering the remainder of the term of all Orders after the effective date of termination reduced with any costs made by Power Accelerate to deliver products or services to date. If this Agreement is terminated by Power Accelerate in accordance with the 11.2 above, Customer will pay any unpaid fees covering the remainder of the Term of all Orders to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to Power Accelerate for the period prior to the effective date of termination.
11. TRIAL USE / PROOF OF TECHNOLOGY
If Customer obtains a free trial or proof of technology from Power Accelerate, Power Accelerate will make the applicable Services available to Customer on a trial basis free of charge with limited functionality until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Service(s), or (b) the start date of any Order for such Services; or (c) termination by Power Accelerate in its sole discretion.
THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND POWER ACCELERATE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES DURING THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE POWER ACCELERATE’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $100.00. WITHOUT LIMITING THE FOREGOING, POWER ACCELERATE DOES NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION ABOVE, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO POWER ACCELERATE AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third-party beneficiaries to this Agreement.
Notices shall be in writing and delivered as indicated below. Notice may be delivered by either (a) nationally recognized overnight delivery service or certified or registered Mail, or (b) electronic mail. Notices are effective upon receipt.
Power Accelerate reserves the right, in its sole discretion, to modify or replace this Agreement at any time. To the extent of any conflict between this Agreement and any Order Form, the Order Form shall prevail. In the event of a conflict between this Agreement and any other Exhibit or document referenced herein, this Agreement shall prevail unless expressly stated otherwise. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or similar ordering document (other than a Statement of Work or other mutually executed order document expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void. This Agreement represents the entire agreement of the parties, and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. If there is any conflict between the terms of this Agreement and any Order or similar ordering document with a Partner, the terms of this SaaS Agreement shall control. Where Power Accelerate is required to “click through” or otherwise accept any online terms to register as Customer’s vendor, to provide the Services to Customer, or to enable Customer’s receipt of the Services (as a condition to its provision, vendor registration or receipt of Services), the terms are not binding and shall not be deemed to modify this Agreement.
Customer hereby authorizes Power Accelerate to list Customer’s name and logo on Power Accelerate’s website and in related marketing materials to identify Customer as a Power Accelerate customer, provide that no Customer Confidential Information is disclosed. Additionally, Customer agrees to participate in customer reference and related programs, to the extent so authorized in writing by Customer (email shall suffice).
No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.
Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to a natural disaster, pandemics, civil unrest, actions or decrees of governmental bodies or communications failure which (i) hinders, delays or prevents a party in performing any of its obligations, (ii) is beyond the control of, and without the fault or negligence of, such party, or (iii) by the exercise of reasonable diligence such party is unable to prevent or provide against (“Force Majeure Event”).
. Neither party may assign or transfer any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing either party may, upon notice to the other party, assign or transfer this Agreement in its entirety (including all Orders hereunder), in connection with a merger, reorganization, or sale of all or substantially all assets or equity with respect to this Agreement. Any attempted assignment in breach of this Section 12.7 shall be void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Each party agrees to comply with all applicable regulations of the Belgium Department of Commerce and with the Belgium Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the provision and use of the Power Accelerate Service.
This Agreement shall be governed exclusively by the internal laws of Belgium, without regard to its conflicts of laws rules. Any dispute arising hereunder shall be brought exclusively in the courts located in Belgium. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.