Last updated: October 2017

Thank you for signing up for a subscription with Persado Predict. These Terms of Use (“Terms”) for the Persado products and services purchased or used through the Persado web application (collectively, the “Services”), is between Persado, Inc. (“Persado,” “we,” “us,” or “our”) and the entity purchasing Persado’s products and services (“Services”) (“you” or “your”).

These Terms permit you to purchase subscriptions to online software-as-a-service products and other services from Persado pursuant to any ordering documents, online registration, order descriptions or order confirmations referencing these Terms (the “Order(s)”) and sets forth the basic terms and conditions under which those products and services will be delivered. These Terms will govern your initial purchase on the date of purchase (the “Effective Date”) as well as any future purchases made by you that reference these Terms.

BY PLACING AN ORDER FOR SERVICES, CONFIRMING YOUR ACCOUNT REGISTRATION WITH US, OR ACCESSING OR USING ANY PERSADO SERVICES OR RELATED SERVICE, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND BECOME A PARTY TO THESE TERMS. IF YOU ARE ACCESSING THE SERVICES ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO AGREE TO THESE TERMS ON ITS BEHALF AND THE RIGHT TO BIND IT HERETO. USE OF THE SERVICES IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.

We may update or modify or replace these Terms, in whole or in part, from time to time. If we modify the Terms during your subscription term, the modified version will take effect upon your next subscription renewal except that: (i) changes to our Privacy Policy will take effect thirty (30) days from the date of posting; (ii) if we launch new products or optional features that require opt-in acceptance of new terms, those terms will apply upon your acceptance of those terms; and (iii) any updated or modified Terms will take effect immediately for any free trial subscription or if you accept the new terms following the modification. You may be required to click through the updated Terms to show acceptance; in any event, continued use of any trial subscription or any renewal of a subscription term following the update shall constitute acceptance of the updated Terms.

1. Description and Use of the Services

a) The Services.

The Services enable you to create and, if applicable, send online marketing messages for your campaign (“Campaign”) and obtain reporting and analysis about the online messages your customers respond to (“Campaign Analytics Data”).

b) License to Use the Services.

Subject to the terms and conditions of these Terms, we grant you and Authorized Users (defined below) a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access and use the applicable Services solely for your internal business purposes, and not for the benefit of any third party.

c) Third Party Services.

The Services may integrate through third party service providers and you should carefully review the terms of such third party service providers. If our Services include a third party integration or you access our Services through a third-party integration, you may experience disruptions in access to our Services, which we cannot control. The Services may also contain links or connections to third party websites or services that are not owned or controlled by us (e.g. Facebook or Email Service Providers). When you access third party websites or use third party services, you accept that there are risks in doing so, and that we are not responsible for such risks. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third party website or service that you visit or utilize.

d) Prohibited Uses.

You must not: (i) modify, copy, distribute or transfer the Services; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code of the Services; (iii) introduce into the Services any virus or harmful code; (iv) permit direct or indirect access to or use of the Services in a way that circumvents your contractual usage limit; (v) interfere with or attempt to interrupt the proper operation of the Services; (vi) use the Services to create Campaigns that are pornographic, defamatory or otherwise use any image of a person in a way that a reasonable person would find offensive; or (vii) use the Services for any unlawful purpose.

2. Your Subscription, Account and Fees

a) Subscription Term.

Unless otherwise specified in these Terms, each subscription term will automatically renew for the respective period unless you provide a cancellation request at least thirty (30) days prior to expiration of the then-current subscription.

b) Account.

The number of Authorized Users will be indicated through the Services at the time of registration (“Authorized Users”). You are responsible for the confidentiality of your account, as well as for any use and misuse of the Services made using your account. You are responsible for the use of the Services by any person who accesses the Services using your credentials, even if you did not authorize such use. Our policies with respect to the collection and use of any personally identifiable information are set forth in our Privacy Policy which may be updated from time to time.

c) Campaign Information.

The Services are made available to you through a URL. In order to use the Services, you will need to provide information about your marketing Campaigns, including the respective unique opens/click response rates for each marketing message tested in your Campaign, and any other information that may be necessary to create the optimized message for your Campaign (the “Campaign Information”). Some of our other Services (e.g. Persado Go Social) may also request access to your Facebook Ads account, including your historical ads and unpublished ad set, in order to improve the Services.

d) Payment and Fees.

Access to the Services is available for a fee, as agreed to between you and us at time of your account registration. We shall invoice you the fees on a monthly basis as agreed upon during your account registration. All fees are as set forth in the subscription agreement and will be paid by you by credit or debit card. Your credit or debit card on file will automatically be charged on the renewal date of your subscription for all fees accrued as of that date. For certain credit cards, the issues of the customer’s credit card may charge a foreign transaction fee or other charges. If you revoke authorization to charge your payment card or if for any reason your payment issuer does not submit payment, Persado will change your subscription status to unpaid on the renewal date and might continue requesting payment utilizing same payment method or any new one on file. Access to the Services will be limited at this time. You maybe change at any time your credit card information by entering updated information via the respective Billing page in the product’s My Account Portal. If your access is revoked, you must pay the remaining balance to continue using the product.

e) Cancellation.

You may cancel your subscription and remove your payment method by contacting Persado Support (via email: prosupport@persado.com). If you wish to terminate your subscription and avoid a charge for the next month, you must do so before the renewal date. If you do not cancel before the renewal date, you maybe be charged for that new period and your cancellation will then be effective for the following period. You may use your subscription until your cancellation is effective. Upon any time, including after termination or expiration of the subscription term, Persado may charge the customer’s credit card for any outstanding fees for customer’s use of the services.

f) Support.

Persado will provide email support via prosupport@persado.com.

g) Invoices.

Persado will send you an invoice with the subscription charges and any deductions for that period. Any other transactions such as refunds or statement may not appear here but will appear in the website.

3. Proprietary Rights

a) Ownership.

We own and will continue to own all right, title, and interest in and to (i) the Services, including, without limitation, all source code, object code, operating instructions, and interfaces developed for or relating to the Services; (ii) all modifications, enhancements, revisions, changes, copies, translations, compilations, improvements, and derivative works of the foregoing, and all intellectual property rights therein; and (iii) any other content and materials we make available through the Services and all copyrights, trademarks, patents, trade secrets, and other proprietary or intellectual property rights therein (collectively, the “Persado Content”). Except as expressly permitted in these Terms, you have no rights in or to any Persado Content. You own all right, title and interest in and to the Campaign Information, the Campaign Analytics Data and the optimized marketing messages generated for you.

b) Statistical Information.

You hereby grant us a world-wide, irrevocable, perpetual, non-exclusive, fully paid-up, royalty-free right and license to use, reproduce, store, modify, adapt, translate, create derivative works from, and otherwise use the Campaign Information to: (i) compile reports and statistics about the Services which can be made available solely in an aggregated anonymized form to improve the Services; (ii) comply with applicable laws; and/or (iii) protect the integrity, security and/or stability of the Services, including, without limitation, any of our computer systems, networks, platforms, infrastructures, devices, websites, databases, software or other data or property.

c) Feedback.

You may provide input and feedback to Persado regarding the Services (the “Feedback”) through conference calls, in-person and/or web-based sessions with Persado representatives intended to elicit detailed comments and suggestions regarding the Services. You hereby grant us a world-wide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license to use, view, copy, adapt, modify, distribute, license, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view or otherwise exploit any Feedback suggested by you.

4. Limited Warranty

Each party represents and warrants that: (a) it has full power and authority, and has obtained all approvals, permissions and consents necessary to enter into these Terms and to perform its obligations hereunder; (b) these Terms are legally binding upon it and enforceable in accordance with its terms; and (c) the execution, delivery and performance of these Terms do not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound. You represent and warrant to us that you own all rights, title and interest in and to the Campaign Information, or that you have otherwise secured all necessary rights in the Campaign Information as may be necessary to permit the access, use and distribution thereof as contemplated by these Terms.

5. Disclaimers

ALL CAMPAIGN INFORMATION IS PROVIDED BY YOU. PERSADO, ITS AFFILIATES, SUBSIDIARIES, OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY THE “PERSADO PARTIES”) DO NOT ENDORSE OR RECOMMEND ANY CAMPAIGN. NONE OF THE PERSADO PARTIES HAS ANY LIABILITY WITH RESPECT TO ANY CAMPAIGN INFORMATION THAT YOU PROVIDE OR FOR ANY RESULTS ACHIEVED FROM USING THE SERVICES. WE EXPRESSLY DISCLAIM ANY AND ALL LIABILITY IN CONNECTION WITH THE FOREGOING.

TO THE EXTENT PERMITTED BY LAW, THE SERVICES AND THE CAMPAIGN ANALYTICS DATA ARE PROVIDED ON AN “AS IS” AND “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE CANNOT PROMISE UNINTERRUPTED OR ERROR FREE SERVICE. Some states do not allow the disclaimer of implied warranties, so the above exclusion may not apply to you in whole or in part. The foregoing provision will survive termination of these Terms.

6. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY WILL LIMIT CLAIMS FOR DAMAGES OR OTHER MONETARY RELIEF AGAINST THE OTHER PARTY TO DIRECT AND ACTUAL DAMAGES. THIS LIMITATION AND WAIVER WILL APPLY REGARDLESS OF THE THEORY OF LIABILITY, WHETHER FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, NEGLIGENCE, PERSONAL INJURY, PRODUCT LIABILITY, INTELLECTUAL PROPERTY INFRINGEMENT, OR ANY OTHER THEORY. THIS MEANS THAT NEITHER PARTY WILL SEEK, AND HEREBY WAIVES ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES FROM THE OTHER PARTY. IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY FOR DIRECT DAMAGES ARISING UNDER THESE TERMS OR RELATING THERETO, EXCEED THE AMOUNT PAID TO PERSADO BY YOU IN THE PRECEDING TWELVE (12) MONTHS.

7. Indemnification

a) Indemnification by You.

You agree to defend, indemnify, and hold the Persado Parties harmless from and against any and all third party claims, actions, or demands and related costs, damages and liability in connection with: (i) any content you submit, post or transmit through the Services; (ii) your use of the Services in a manner that is in violation of these Terms, including a breach of any representation, warranty, covenant or other agreement made herein; or (iii) your violation of any applicable laws or regulations, or rights of any third party, including without limitation any intellectual property or privacy rights that give rise to a claim against us by a third party. This obligation shall survive the termination or expiration of these Terms and/or your use of the Services.

b) Indemnification by Persado.

Except as provided below, we agree to (i) defend you against any claim by a third party that the Services infringe a valid U.S. patent (issued as of the effective date of these Terms), or any copyright or trade secret of such third party, and (ii) indemnify you for settlement amounts or third party damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claim. If any part of the Services becomes or, in our opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, we may, at our option (1) obtain for you the right to continue using the Services, or (2) replace or modify the Services so that such services become non-infringing without substantially compromising their principal functions. If (1) and (2) are not reasonably available to us, then we may (3) terminate these Terms upon written notice to you. Fees that were pre-paid for the current term are non-refundable. We shall have no liability or obligation hereunder with respect to any claim to the extent based upon: (A) any use of the Services not strictly in accordance with these Terms or in an application or environment or on a platform or with devices for which it was not designed or contemplated; (B) modifications, alterations, combinations or enhancements of the Services not created by us; (C) any Campaign Information; (D) any portion of the Services that implements your requirements; (E) your continuing allegedly infringing activity after being notified thereof; or (F) your continuing use of any version of the Services after being provided modifications that would have avoided the alleged infringement. The foregoing states our entire liability, and your exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Services, any part thereof or its use or operation.

c) Procedures.

Any claim for indemnification hereunder requires that (i) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (ii) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party’s written consent (such consent not to be unreasonably delayed, conditioned or withheld). The indemnifying party shall not be liable for any settlement made without its prior written consent.

8. Confidential Information

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Such information includes, without limitation, Campaign Information, information related to your login identifiers and credentials for your Users and the nature and performance of your marketing programs. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as expressly permitted in the Section entitled Statistical Information) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information the Receiving Party can document: (a) is or becomes generally available to the public; or (b) was in its possession or known by it prior to receipt from the Disclosing Party without restriction; or (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party; or (e) is required by law, provided that Receiving Party will promptly notify Disclosing Party upon learning of any such legal requirement, and cooperate with Disclosing Party in the exercise of its right to protect the confidentiality of the Confidential Information before any tribunal or governmental agency. The confidentiality obligations of these Terms, as they apply to any Confidential Information disclosed prior to termination, will survive termination of any subscription for a period of five (5) years.

9. Termination

These Terms will begin as of the Effective Date and will remain in effect until the cancellation of your subscription. We reserve the right, in our sole discretion, to suspend, terminate, change or discontinue your access to the Services for the violation of these Terms. In the event of a material breach by either party, the non-breaching party can terminate the subscription thirty (30) days after notice has been given to the breaching party and the breach has not been cured. All fees will be due and payable as of the date of termination of the subscription. You will have no access to the Services if these Terms or your subscription is terminated. All provisions of these Terms, which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

10. Miscellaneous

a) Assignment.

You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without our prior written consent, provided that our consent shall not be required for an assignment of these Terms to a successor of substantially all of your assets or business. We may transfer, assign, or delegate these Terms and our rights and obligations without consent. Subject to this restriction, the Terms shall inure to the benefit of and be binding upon the heirs, successors, subcontractors, and assigns of the respective parties.

b) Notices.

If you have any questions about these Terms, please contact us at prosupport@persado.com.

c) Severability.

All provisions in these Terms are independent of each other. If any term or provision of these Terms is held to be inapplicable or unenforceable, then such term or provision shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect, and the balance of the terms and provisions shall remain unaffected and in full force and effect, unless our obligations hereunder are materially impaired, in which event we reserve the right to terminate the Terms.

d) Governing Law; Venue.

These Terms will be governed by and construed in accordance with the laws of the State of New York. The parties mutually agree that any and all disputes arising hereunder shall be resolved exclusively by state or federal courts located in the borough of Manhattan, New York City, New York, except for proceedings commenced by Persado to protect its intellectual property or confidential information which may be brought in the United Kingdom if necessary.

e) Entire Agreement.

These Terms and your registration represent the final and entire agreement between you and us regarding the Services. Except as otherwise provided in the Terms, no prior or subsequent handwritten, typed or oral change to the Terms will be valid unless we accept it in writing. Our failure at any time to require strict performance by you of any of the provisions herein shall not waive or reduce our right to thereafter require strict compliance with any provisions of the Terms. In the event of a conflict or inconsistency between these Terms and a separately executed agreement, the separately executed agreement shall control.

f) Independent Contractors.

The parties shall be independent contractors under these Terms, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

g) Force Majeure.

We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.

h) No Waiver.

Our failure to enforce any part of these Terms shall not constitute a waiver of our right to later enforce that or any other part of these Terms. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.