Terms of Service

The following terms, when used in this Agreement will have the following meanings:

Provision of Peppermint Product. Subject to this Agreement, Peppermint will make the Peppermint Product available to Customer pursuant to this Agreement and the applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the Peppermint Product for its internal business purposes during the applicable subscription term. Customer may permit Users to use the Peppermint Product on its behalf. Customer is responsible for provisioning and managing its User accounts, for actions conducted under any such User accounts through the Peppermint Product and for their compliance with this Agreement.

Data Security.

Customer Responsibilities.

Third-Party Platforms. The Peppermint Product may interface with Third Party Platforms. Customer has the discretion to utilize these Third Party Platforms in conjunction with our Peppermint Product. If required for integration of the Peppermint Product with any Third Party Platform, Customer will be responsible for providing its login information to Peppermint solely for the purpose of enabling Peppermint to provide the Peppermint Product. Customer affirms that it has the authority to provide such information without violating any terms and conditions governing use of the Third Party Platform. Peppermint does not endorse any Third Party Platforms. Customer acknowledge that this Agreement does not cover the use of Third Party Platforms, and Customer enters into separate agreements with the providers of these Third Party Platforms. Peppermint expressly disclaims all representations and warranties concerning Third Party Platforms. Customers must direct any warranty claims or other disputes directly to the providers of the Third Party Platforms. The use of Third Party Platforms is at Customer's own risk. Peppermint shall not be liable for any issues arising from the use or inability to use Third Party Platforms.

Affiliates. Any Affiliate of Customer will have the right to enter into an Order Form executed by such Affiliate and Peppermint and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement. With respect to such Order Forms, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate. Each Order Form is a separate obligation of the Customer entity that executes such Order Form, and no other Customer entity has any liability or obligation under such Order Form.

Fees. Customer will pay Peppermint the fees set forth in the applicable Order Form. Customer will pay those amounts due and not disputed in good faith within thirty (30) days of the date of receipt of the applicable invoice (the “Payment Period”), unless a specific date for payment is set forth in such Order Form, in which case payment will be due on the date specified. Except as otherwise specified herein or in such Order Form, payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. If Customer disputes an invoice in good faith, it will notify Peppermint within the Payment Period and the parties will seek to resolve the dispute as soon as reasonably practicable. Peppermint may provide Customer with written notice of a change or increase in pricing for such Order Form at least sixty (60) days prior to the end of the then-current subscription term, and such modified pricing will become effective thereafter at the time of the renewal.

Late Payment. Peppermint may suspend access to the Peppermint Product immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date. If Peppermint has not received payment within five (5) days after the applicable due date, interest will accrue on past due amounts at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Peppermint.

Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively, “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Peppermint. Customer will not withhold any Taxes from any amounts due to Peppermint.

Proprietary Rights. As between the parties, Peppermint exclusively owns all right, title and interest in and to the Peppermint Product, System Data and Peppermint’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Materials, output produced specifically for Customer via the use of the Peppermint Product by Customer (which will constitute Customer Materials for purposes hereof) and Customer’s Confidential Information. “System Data” means data collected by Peppermint regarding the Peppermint Product that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Peppermint Product.

Feedback. Customer may from time to time provide Peppermint suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Peppermint Product. Peppermint will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Peppermint will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services. All Feedback is provided “AS IS” and Peppermint will not publicly identify Customer as the source of Feedback without Customer’s permission.

Product Improvement and Aggregated Statistics. Customer further agrees that, notwithstanding anything herein, Peppermint is hereby granted the right to aggregate, collect, retain and analyze information relating to the performance of the Peppermint Product and will be free (during and after the term hereof) to (a) use such data and other information to provide and improve Peppermint’s products and services, and (b) disclose such data and other information solely in an aggregated and anonymized format that does not identify Customer or any individual.

Confidentiality. Each receiving party agrees that it will use the Confidential Information of the disclosing party solely in accordance with the provisions of this Agreement and it will not disclose the same to any third party without the disclosing party’s prior written consent, except as otherwise permitted hereunder. However, the receiving party may disclose such Confidential Information (a) to its employees and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers.

Technology Restrictions. Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Peppermint Product; (b) attempt to probe, scan or test the vulnerability of the Peppermint Product, breach the security or authentication measures of the Peppermint Product without proper authorization or wilfully render any part of the Peppermint Product unusable; (c) use or access the Peppermint Product to develop a product or service that is competitive with Peppermint’s products or services or engage in competitive analysis or benchmarking; (d) transfer, distribute, resell, lease, license, or assign the Peppermint Product or otherwise offer the Peppermint Product on a standalone basis; or (e) otherwise use the Peppermint Product in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form.

Injunctive Relief. In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.

Mutual. Each party warrants that (a) it has the legal power and authority to enter into this Agreement and (b) it will use industry-standard measures to avoid introducing viruses or other malicious code into the Peppermint Product.

Peppermint. Peppermint warrants that the Peppermint Product will perform materially as described in the Documentation and Peppermint will not materially decrease the overall functionality of the Peppermint Product during the applicable subscription term (the “Performance Warranty”). Peppermint will use reasonable efforts to correct a verified breach of the Performance Warranty reported by Customer. If Peppermint fails to do so within 30 days after Customer's warranty report, then either party may terminate the applicable Order Form as it relates to the non-conforming Peppermint Product, in which case Peppermint will provide Customer a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term. To receive these remedies, Customer must report a breach of warranty in reasonable detail within 30 days after discovering the issue in the Peppermint Product. These procedures are Customer’s exclusive remedies and Peppermint’s sole liability for breach of the Performance Warranty.

Customer. Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Peppermint to use the same as contemplated hereunder.

DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT THE PEPPERMINT PRODUCT IS INTENDED TO AUGMENT THE EFFICIENCY OF, BUT NOT REPLACE, CUSTOMER’S MODELING SYSTEMS AND PROCESSES. PEPPERMINT DOES NOT REPRESENT OR WARRANT THAT THE PEPPERMINT PRODUCT WILL BE ERROR-FREE AND CUSTOMER ACKNOWLEDGES THAT THE INSIGHTS PROVIDED BY THE PEPPERMINT PRODUCT DO NOT CONSTITUTE PROFESSIONAL ADVICE OR COUNSEL. PEPPERMINT IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY PLATFORMS AND DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF.

NO-CHARGE PRODUCTS. From time to time, Customer may have access to free accounts or trial use, pre-release, alpha or beta versions or features (collectively, “No-Charge Products”) offered by Peppermint. Customer’s use of No-Charge Products is subject to any additional terms that Peppermint may specify. Except as otherwise set forth in this Section, this Agreement applies to No-Charge Products. Peppermint may modify or terminate Customer’s right to use No-Charge Products at any time. NOTWITHSTANDING ANYTHING TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PEPPERMINT DISCLAIMS ALL OBLIGATIONS, WARRANTIES AND LIABILITIES WITH RESPECT TO NO-CHARGE PRODUCTS, INCLUDING ANY SERVICE LEVEL OR INDEMNITY OBLIGATIONS.

Indemnity by Peppermint. Peppermint will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Peppermint Product as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by Peppermint) in connection with any such Claim; provided that (a) Customer will promptly notify Peppermint of such Claim, (b) Peppermint will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Peppermint may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Peppermint in connection therewith. If the use of the Peppermint Product by Customer has become, or in Peppermint’s opinion is likely to become, the subject of any claim of infringement, Peppermint may at its option and expense (i) procure for Customer the right to continue using and receiving the Peppermint Product as set forth hereunder; (ii) replace or modify the Peppermint Product to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the applicable Order Form and provide Customer a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term. Peppermint will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) designs, guidelines, configurations, plans or specifications provided by Customer; (B) use of the Peppermint Product by Customer not in accordance with this Agreement; (C) modification of the Peppermint Product by or on behalf of Customer; (D) Customer Materials, or (E) the combination, operation or use of the Peppermint Product with other products or services where the Peppermint Product would not by itself be infringing (clauses (A) through (E), “Excluded Claims”). This Section states Peppermint’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.

Indemnification by Customer. Customer will defend Peppermint against any Claim made or brought against Peppermint by a third party arising out of any Excluded Claims, and Customer will indemnify Peppermint for any damages finally awarded against Peppermint (or any settlement approved by Customer) in connection with any such Claim; provided that (a) Peppermint will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Peppermint’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Peppermint of all liability) and (c) Peppermint reasonably cooperates with Customer in connection therewith.

Term. The term of this Agreement will commence on the date of the initial Order Form and continue until terminated as set forth below. The initial term of each Order Form will begin on the Order Form start date indicated in such Order Form and will continue for the subscription term set forth therein. Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.

Termination. Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement or the applicable Order Form upon written notice (a) in the event the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party becomes the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.

Survival. Upon expiration or termination of this Agreement (a) all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the terms and conditions relating to payment, proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below, and (b) each receiving party will return or destroy, at the disclosing party’s option, any Confidential Information of such disclosing party in the receiving party’s possession or control.

Customer Materials Retrieval. Upon Customer’s written request made on or prior to expiration or termination of the applicable Order Form, Peppermint will give Customer limited access to the Peppermint Product for a period of up to thirty (30) days after such expiration or termination, at no additional cost, solely for purposes of retrieving Customer Materials. Subject to such retrieval period and Peppermint’s legal obligations, Peppermint has no obligation to maintain or provide any Customer Materials and will, unless legally prohibited, delete Customer Materials after such expiration or termination; provided, however, that Peppermint will not be required to remove copies of the Customer Materials from its backup media and servers until such time as the backup copies are scheduled to be deleted, provided further that in all cases Peppermint will continue to protect the Customer Materials in accordance with this Agreement. For clarity, during the term of the applicable Order Form, Customer may extract Customer Materials using Peppermint’s standard web services as described in the Documentation.

Publicity. Customer agrees that Peppermint may refer to Customer’s name and trademarks in Peppermint’s marketing materials and website; however, Peppermint will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email). If Customer does not agree to Peppermint’s use of Customer’s name or trademark in Peppermint’s marketing materials, Customer may opt-out of such use by providing written notice to Peppermint within fourteen (14) days of the date of the initial Order Form.

Assignment. Neither party hereto may assign this Agreement without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.

Amendment; Waiver. Peppermint reserves the right in its sole discretion and at any time and for any reason to modify these Terms and Conditions. With respect to each Order Form, any modifications to these Terms and Conditions shall become effective upon the date of Customer’s next renewal of such Order Form. It is Customer’s responsibility to review these Terms and Conditions from time to time for any changes or modifications. If Customer does not agree to the modified Terms and Conditions, Customer may provide notice of Customer’s non-renewal at any point prior to the Customer’s next renewal. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. The section headings used herein are for convenience only and shall not be given any legal import. The section headings used herein are for convenience only and shall not be given any legal import.

Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.

Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.

Governing Law. This Agreement will be governed by the laws of the State of Delaware, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the Customer must be sent to the respective address set forth in the signature blocks listed on the Customer’s applicable Order Form, or such other email address provided by Customer when Customer creates its Peppermint account. Notices to Peppermint must be sent to the following: 455 Market St Ste 1940 PMB 490882 San Francisco, California 94105-2448 US

Entire Agreement. This Agreement comprises the entire agreement between Customer and Peppermint with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Peppermint, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.

Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations (excluding payment obligations) due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.

Interpretation. For purposes hereof, “including” means “including without limitation”.