Terms of Service
Effective as of Jan 28, 2025.
These Terms of Service together with its Exhibits (the “Agreement”) are entered into by and between Howitzer Inc., a Delaware corporation (the “Provider”) and the entity or person placing an order for or accessing any Services (the “Customer”). If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company.
The "Effective Date" of this Agreement is the date which is the earlier of (a) Customer's initial access to any Services (as defined below) or (b) the effective date of the first Order Form referencing this Agreement.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT. THIS AGREEMENT CONTAINS MANDATORY ARBITRATION PROVISIONS THAT REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS. PLEASE READ IT CAREFULLY.
1. DEFINITIONS
Other than the terms defined in the body of this Agreement, these terms have the following meaning:
“Affiliate” means any entity under the control of a Party where “control” means ownership of or the right to direct greater than 50% of the voting securities of such entity.
“Beta Offerings“ mean pre-release services, features, or functions identified as alpha, beta, preview, early access, or words or phrases with similar meanings.
“Code” means certain JavaScript code, software development kits (SDKs) or other code provided by the Provider for deployment on Customer Properties.
“Contractor” means an independent contractor or consultant of the Customer who is not a competitor of the Provider.
“Customer Data” means any data of any type that is submitted to the Services by or on behalf of the Customer, including without limitation data submitted, uploaded, or imported to the Services by the Customer (including from Third-Party Platforms).
“Customer Properties” mean Customer's websites, servers, apps, or other offerings owned and operated by (or for the benefit of) Customer through which Customer uses the Services.
“Dashboard” means Provider's user interface for accessing and administering the Services that Customer may access via the web or the Apps.
“DPA” means the data processing addendum attached hereto as Exhibit A.
“Documentation” means the technical user documentation provided with the Services.
2. PROVIDER SERVICES
2.1. Provision of Services. The Services are provided on a subscription basis for a Subscription Term. The Customer will purchase, and the Provider will provide the Services identified and agreed upon in the applicable Order Form.
2.2. Access to Services. The Customer may access and use the Services solely for its own benefit and in accordance with the terms and conditions of this Agreement, the Documentation, and any scope of use restrictions designated in the applicable Order Form. Use of and access to the Services is permitted only by Permitted Users. If Customer is given API keys or passwords to access the Services on the Provider's systems, the Customer will require that all Permitted Users keep API keys, user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons, and may not be shared. If the Customer is accessing the Services using credentials provided by a third party (e.g., Google), then the Customer will comply with all applicable terms and conditions of such third-party regarding provisioning and use of such credentials. The Customer will be responsible for all actions taken using Customer's accounts and passwords. If a Permitted User who has access to a user ID is no longer an employee or Contractor of the Customer, then the Customer will promptly delete such user ID and otherwise terminate such Permitted User's access to the Services.
2.3. Contractors and Affiliates. The Customer may permit its Affiliates and Contractors to serve as Permitted Users, provided the Customer remains responsible for compliance by such individuals with all the terms and conditions of this Agreement, and all use of the Services by such individuals is for the sole benefit of the Customer.
3. CUSTOMER DATA
3.1. Data Processing by the Provider. All data processing activities by the Services will be governed by the DPA.
3.2. Rights in Customer Data. As between the parties, the Customer will retain all right, title, and interest (including all Intellectual Property Rights) in and to the Customer Data as provided to the Provider. Subject to the terms of this Agreement, the Customer hereby grants to the Provider a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, and display the Customer Data solely to the extent necessary to provide the Services to the Customer.
3.3. Storage of Customer Data. The Provider does not provide an archiving service. The Provider agrees only that it will not intentionally delete any Customer Data from the Services prior to termination of the Customer's applicable Subscription Term and expressly disclaims all other obligations with respect to storage.
Exhibit A
Data Processing Addendum
1. INITIAL PROVISIONS
1.1. Agreement. This Data Processing Addendum including its annexes and the Standard Contractual Clauses, (the "DPA") is made by and between HOWITZER INC. (the "Provider"), and Customer, pursuant to the Master SaaS Subscription Agreement, the Terms of Service or other written or electronic agreement between the parties (as applicable) (the "Agreement").
1.2. Data Processing Agreement. By entering into the Agreement with the Provider You, the Customer, acknowledge that you have read and understood this DPA and agree to be bound by it.
2. DEFINITIONS
Any capitalized term used but not defined in this DPA has the meaning provided to it in the Agreement.
"Account Data" means Personal Data that relates to Customer’s relationship with Provider, including to access Customer’s account and billing information, identity verification, maintain or improve performance of the Services, provide support, investigate and prevent system abuse, or fulfill legal obligations.
"Applicable Data Protection Legislation" refers to laws and regulations applicable to Provider's processing of personal data under the Agreement, including but not limited to (a) the GDPR, (b) in respect of the UK, the GDPR as saved into United Kingdom law by virtue of section 3 of the United Kingdom's European Union (Withdrawal) Act 2019 ("UK GDPR") and the Data Protection Act 2018 (together, "UK Data Protection Laws"), (c) the Swiss Federal Data Protection Act and its implementing regulations ("Swiss DPA"), (d) CCPA & CPRA, and (e) Australian Privacy Principles and the Australian Privacy Act (1988), in each case, as may be amended, superseded or replaced.
"CCPA" or "CCPA and CPRA" means the California Consumer Privacy Act of 2018 and any binding regulations promulgated thereunder, in each case, as may be amended from time to time. This includes but it is not limited to the California Privacy Rights Act of 2020.
3. APPLICABILITY AND SCOPE
3.1. Applicability. This DPA will apply only to the extent that Provider processes, on behalf of Customer, Personal Data to which Applicable Data Protection Legislation applies.
3.2. Scope. The subject matter of the data processing is the provision of the Services, and the processing will be carried out for the duration of the Agreement. Schedule A (Details of Processing) sets out the nature and purpose of the processing, the types of Personal Data Provider processes and the categories of data subjects whose Personal Data is processed.