Effective Date: May 25, 2018
Sustainer.io, Inc (“Sustainer.io”) operates the Sustainer.io payment processing service (the “Service”) on the Salesforce platform. The following Terms and Conditions, and any additional documents specifically incorporated thereby set forth the entire agreement regarding the use of the Service between each customer of the Service (each “Customer”) and Sustainer.io (collectively, this “Agreement”). By installing, clicking the “I Accept” button displayed within the Sustainer.io Salesforce application, clicking on a downloadable link of the application provided by Sustainer.io, continued use of the application, Customer agrees to the provisions of this Agreement. By using our Services, you are agreeing to these terms. Please read them carefully.
1 Provision of Service.
1.1 Service. Sustainer.io will provide the Service to Customer as provided to within the Sustainer.io software application.
1.2 Term & Renewal. Except as otherwise set forth by Sustainer.io, this agreement will automatically renew on a monthly basis unless Sustainer.io receives written notice of intent to terminate at least 30 days prior to the end of service as provided in Section 9.
1.3 Handling of Customer Data. Customer recognizes and agrees that: (a) the Service operates within the Salesforce platform to transmit payment instructions from within Salesforce to the payment processing gateway that Sustainer.io is connected to; (b) the Service does not collect or store any data, information (including without limitation personally identifiable information), content, templates, forms, or material provided, made available, or submitted to the Service or retrieved by the Service from Customer’s Salesforce.com account (“Customer Data”); and (c) security of Customer Data is the responsibility (if any) of Salesforce.com and not of Sustainer.io.
1.4 Availability of Salesforce. Customer recognizes and agrees that the Service runs entirely within Salesforce and connects directly to payment gateways, and that Sustainer.io will be unable to provide the Service and will have no liability in the event Salesforce or a customers’ payment gateway is unavailable for any reason. Sustainer.io is not responsible or liable for any nonperformance of Service arising from planned or unplanned downtime of Salesforce or payment gateways.
1.5 Third Parties. Sustainer.io utilizes payment gateways to process payment transactions through the application. Customer agrees to use a payment processing company that Sustainer.io has integrated to. This includes setting up a merchant account and paying the fees associated with processing payments. If requested you will receive a quote for pricing by our payment processing partners before an account is created on your behalf. Sustainer.io is not responsible for any of the billing for payment processing, you will work with the payment processor to remedy any discrepencies you may find.
2.1 Payment. Sustainer.io does not charge a fee for the use of the software. Sustainer.io does reserve the right to make changes to their fee structure to include a monthly or annual fee with reasonable notification to customer. The customer will have the option to terminate its use of the software at that time if they do not agree with the new fee structure.
3 Customer Data, Materials, Software, & IP.
3.1 Customer Data. Customer retains all right, title and interest in and to the Customer Data. Customer is solely responsible for Customer Data, including without limitation the accuracy, quality, integrity, legality, reliability, security and appropriateness of Customer Data, and any intellectual property ownership or right to use Customer Data. Sustainer.io is not responsible for the deletion, alteration, or loss of, or failure to store any Customer Data. Customer hereby agrees to take all measures necessary to protect and encrypt sensitive Customer Data in accordance with local, state and federal laws, including the routine deletion of sensitive cardholder payment data. Customer is solely responsible for determining whether it is required to seek PCI compliance or other security certification measures, and for obtaining and maintaining such certification. Customer recognizes and agrees that: (a) Sustainer.io does not own or have access to Customer Data in the ordinary course of its business; (b) Salesforce provides a tool that permits Customer to allow Sustainer.io to log in to the Service as Customer in order to provide support services; and (c) if Customer provides such access to Sustainer.io, Sustainer.io will be able to view Customer Data. Sustainer.io will use all such Customer Data, if at all, only in order to provide support. Customer Data received pursuant to this Section 3.1 is Customer’s Confidential Information and Sustainer.io is bound by the obligations in Section 6 in regard to all such information. Except as set forth in the preceding sentence, Sustainer.io will have no responsibility or liability for any exposure, disclosure, or loss of Customer Data, or for any loss arising out of or related to Customer Data.
3.2 IP in General. Sustainer.io retains all right, title, and interest in and to the Service and all software used to provide the Service, including without limitation all updates, modifications, and customizations, all software or other assets created through setup or configuration, and all text, photographs, illustrations, designs, logos, trademarks and other content reproduced through the Service, whether provided by Sustainer.io, Salesforce, or any other third party, used to provide the Service or presented through the Service (collectively, “Materials”). Customer recognizes and agrees that: (a) the Materials are the property of Sustainer.io or its licensors and are protected by copyright, trademark, and other intellectual property laws; and (b) Customer does not acquire any right, title, or interest in or to the Materials except the limited and temporary right to use them as necessary for Customer’s use of the Service. This Agreement does not grant Customer any intellectual property rights in or to the Service or any of its components.
3.3 Acceptable Use. Customer agrees not to and will not encourage or assist any third party to:
(a) use the Service to harm others or the Service, for example, by using the Service to harm, threaten, or harass another person, organization, or Sustainer.io and/or to build a similar service or website.
(b) damage, disable, overburden, or impair the Service (or any network connected to the Service); resell or redistribute the Service or any part of it unless otherwise approved by Sustainer.io in writing; use any unauthorized means to modify, reroute, or gain access to the Service or attempt to carry out these activities; or use any automated process or Service (such as a bot, a spider, or periodic caching of information stored by Sustainer.io) to access or use the Service;
(c) modify, alter, tamper with, repair or otherwise create derivative works of any software provided as part of the Service;
(d) reverse engineer, disassemble or decompile the software used to provide or access the Service or attempt to discover or recreate the source code used to provide or access the Service;
(e) sell, lend, rent, resell, lease, sublicense, frame, mirror or otherwise transfer any of the rights granted to you with respect to the Service to any third party;
(f) remove, obscure or alter any proprietary rights notice pertaining to the Service;
(g) access or use the Service in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas;
(h) use the Service to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) store or transmit inappropriate Customer Data, such as Customer Data: containing unlawful, defamatory, threatening, abusive, libelous or otherwise objectionable material of any kind or nature, containing any material that encourages conduct that could constitute a criminal offense, or that violates the intellectual property rights or rights to the publicity or privacy of others; (iv) store or transmit any Customer Data that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; or (v) abuse, harass, stalk or otherwise violate the legal rights of a third party;
(i) interfere with or disrupt servers or networks used to access the Service, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another user’s full use and enjoyment of the Service;
(j) access or attempt to access Sustainer.io’s other accounts, computer systems or networks;
(k) share passwords or other access information or devices or otherwise authorize any third party to access or use the Service.
Sustainer.io reserves the right, in its sole discretion, to determine whether and what action to take in response to violations of this Section 3.3. Any action or inaction in a particular instance will not dictate or limit Sustainer.io’s response to a future complaint.
4 Performance of Duties and Obligations.
Customer hereby grants to Sustainer.io all licenses and rights in and to Customer Data necessary for Sustainer.io to provide the Service to Customer or as required by law. Customer is responsible for providing all Customer Data required for the proper operation of the Service.
5 Representations, Warranties, & Remedies.
5.1 Right to Do Business. Each party warrants that (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement; and (b) that the person executing this Agreement on behalf of such party has been authorized to execute this Agreement and bind such party to its terms.
5.2 IP Remedies. In the event of any third party claim that the Service, as provided, infringes a United States patent, copyright or trademark. Sustainer.io shall, at its option and expense and as Customer’s exclusive remedy: (a) procure for Customer the right to continue using the Service; (b) replace or modify the Service so that it is no longer infringing but continues to provide comparable functionality; or (c) terminate this Agreement and Customer’s access to the Service and refund any amounts previously paid for the Service attributable to the remainder of the then-current term of this Agreement. Sustainer.io will have no liability to Customer for any infringement action that arises out of a breach of the terms and conditions of this Agreement by Customer or of the use of the Service (i) after it has been modified by Customer or a third party without Sustainer.io’s prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by Sustainer.io where the combination is the basis for the infringing activity. THIS SECTION SETS FORTH THE ENTIRE OBLIGATION OF SUSTAINER.IO AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY ALLEGED OR ACTUAL INFRINGEMENT OF INTELLECTUAL PROPERTY.
5.3 Disclaimers. Except for the express warranties specified in Section 5.1 above, THE SERVICE IS PROVIDED “AS IS” AND AS AVAILABLE, AND SUSTAINER.IO MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. Without limiting the generality of the foregoing: (a) Sustainer.io does not warrant that the Service will perform without error or immaterial interruption; and (b) Sustainer.io does not warrant the security or protection of any Customer Data.
6 Confidential Information.
6.1 “Confidential Information” (a) any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, which is marked or otherwise designated “confidential,” including, without limitation, algorithms, business plans, customer lists, customer names, designs documents, drawings, engineering information, financial analysis, forecasts, formulas, hardware configuration information, know-how, ideas, inventions, market information, marketing plans, processes, products, product plans, research, specifications, software, source code, trade secrets or any other information; and (b) any information otherwise obtained, directly or indirectly, by a receiving party through inspection, review or analysis of the materials described in Subsection 6.1(a). Information disclosed orally shall be considered Confidential Information only if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information may also include information of a third party that is in the possession of one of the parties and is disclosed to the other party under this Agreement. Confidential Information includes, without limitation, documentation, specifications, pricing, disclosures in connection with the Service and the terms and conditions of this Agreement. Confidential Information shall remain the sole property of the disclosing party or its licensors.
6.2 Nondisclosure. Information and materials will not be considered as Confidential Information if the receiving party can establish by documentary evidence that the information is or was: (a) lawfully available to the public through no act or omission of the receiving party; (b) in the receiving party’s lawful possession prior to disclosure by the disclosing party and not obtained either directly or indirectly from the disclosing party; (c) lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) independently developed by the receiving party. The parties agree, both during the term of this Agreement and for a period of five (5) years (or, as applicable, with respect to Confidential Information that is a trade secret, for an indefinite period) after its termination, to hold each other’s Confidential Information in confidence and not to disclose such information in any form to any third party without the express written consent of the disclosing party, except to employees and consultants performing services for the benefit of the receiving party who are under a written non-disclosure agreement protecting the applicable Confidential Information in a manner no less restrictive than this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of this Agreement. A receiving party facing legal action to disclose Confidential Information of the disclosing party shall promptly notify and provide the disclosing party the opportunity to oppose such disclosure or obtain a protective order and shall continue to treat such information as Confidential Information. This Section 6.2 shall not be construed as granting or conferring any rights to either party by license or otherwise, expressly or implicitly, to any Confidential Information.
Customer will indemnify, defend, and hold harmless Sustainer.io, as well as its licensors parents, subsidiaries, affiliates, officers, directors, shareholders, employees, attorneys and agents (collectively the “Sustainer.io Parties”) from and against any and all losses, claims, suits, actions, liabilities, costs, and expenses (including taxes, fees, fines, penalties, interest, expenses of investigation, and attorneys’ fees and disbursements) arising out of or related to Customer’s use of the Service, including without limitation: (a) claims that Sustainer.io’s processing, management, or use of Customer Data violates any contract or any law, rule, or regulation in any jurisdiction; and (b) claims by Customer’s own customers or its employees, Users, business partners, or affiliates.
8 Limitation of Liability.
WITH REGARD TO LIABILITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT: (a) SUSTAINER.IO’S AGGREGATE, CUMULATIVE LIABILITY, AND THAT OF THE SUSTAINER.IO PARTIES, IS AND WILL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO SUSTAINER.IO PURSUANT TO THIS AGREEMENT DURING THE TWELVE MONTHS BEFORE THE EVENT GIVING RISE TO THE LIABILITY; AND (b) NEITHER SUSTAINER.IO NOR THE SUSTAINER.IO PARTIES IS OR WILL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES.THE LIABILITIES LIMITED BY THIS SECTION 8 APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (iii) EVEN IF THE PARTY TO BE CHARGED IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iv) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 8, Sustainer.io’s and the Sustainer.io Parties’ liability will be limited to the maximum extent permissible.
9.1 Non-Renewal & Termination. Either party may terminate this Agreement, effective upon the expiration of the then-current term, by notifying the other party in writing at least 30 business days prior to the expiration of such term.
9.2 Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after 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)). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
9.3 Effects of Termination. The following provisions will survive termination of this Agreement: (a) Sections 2, 3.1 – 3.3, 6 – 8, 9.3, 10, 11 of this Agreement; and (b) any other provision of this Agreement that must survive termination to fulfill its essential purpose.
10.1 Integration; Severability. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof. If any provision of this Agreement is adjudicated invalid or unenforceable, the remaining provisions will remain in effect and the Agreement will be amended to the minimum extent necessary to achieve, to the maximum extent possible, the same legal and commercial effect originally intended by the parties. This Agreement shall supersede the terms of any other business form. Other terms shall be void.
10.2 Notices. Every notice or other communication required or contemplated by this Agreement by either party shall be delivered to the other party at the address indicated within the Sustainer.io application: (a) personal delivery; (b) postage prepaid, return receipt requested, registered or certified mail; (c) internationally recognized express courier, such as Federal Express, UPS or DHL; or (d) email with a confirmation copy sent simultaneously by postal mail. Sustainer.io may also provide notices through the email address provided on the applicable Signup Form, Business information form within Sustainer.io application or such alternative email address as Customer may provide. Notice not given in writing shall be effective only if acknowledged in writing by a duly authorized representative of the party to whom it was given.
10.3 Amendment. This Agreement may be amended only by a written instrument executed by all parties hereto.
10.4 Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way.
10.5 No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (a) by a duly authorized representative of each party and (b) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
10.6 Force Majeure. Neither party shall be liable to the other for its failure to perform its obligations under this Agreement, except for payment obligations, during any period in which such performance is delayed or rendered impracticable or impossible due to unforeseen circumstances beyond its reasonable control.
10.7 Assignment & Successors. This Agreement shall not be assignable by Customer without the written consent of Sustainer.io. Any purported assignment in violation of this Section 10.7 is void. Upon assignment, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the parties, their legal representatives, assignees and successors in interest.
10.8 Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of Missouri, without reference to such State’s principles of conflicts of law. The parties consent to the personal and exclusive jurisdiction of the federal and state courts in St. Louis County, Missouri. In the event of any action or proceeding between the parties, whether by suit or arbitration, as to their rights and obligations under this Agreement, each party will bear its own costs incurred in connection therewith, including attorney’s fees.
11 EU User Consent (General Data Protection Regulation GDPR). If your agreement with Sustainer.io incorporates this policy, you must ensure that certain disclosures are given to, and consents obtained from, end users in the European Economic Area. If you fail to comply with this policy, we may limit or suspend your use of the Sustainer.io product and/or terminate your agreement.
11.1 Duties for End Users in the European Economic Area. You must obtain end users’ legally valid consent to: (a) the use of any local storage where legally required, (b) the collection, sharing, and use of personal data for personalization of ads or other services. When seeking consent you must: (a) retain records of consent given by end users and (b) provide end users with clear instructions for revocation of consent. You must clearly identify each party that may collect, receive, or use end users’ personal data as a consequence of your use of a Sustainer.io product. You must also provide end users with prominent and easily accessible information about that party’s use of end users’ personal data.
11.2 Sustainer.io’s Duties to Customer. Sustainer.io will update and make necessary changes to the Sustainer.io application and every effort to comply with the GDPR, however, it is up to the customer to validate and maintain their own compliance to the law.
11.3 You agree to the following third party terms of service that may affect your users:
Amazon Web Services