These Business Terms are an agreement between Embeddable (TMD Technology Limited) and you (“Customer”) that governs your use of our Services (as defined below). By signing up to use the Services, you agree to be bound by these Business Terms. You represent to us that you are lawfully able to enter into contracts and, if you are entering into these Business Terms for an entity, that you have legal authority to bind that entity. These Business Terms also refer to and incorporate the Acceptable Use Policy, and any other guidelines or policies we may provide in writing (the “Embeddable Policies”) and any ordering document signed by you and Embeddable (collectively, the “Agreement”).
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1.1 Use of Services. “Services” means any services for businesses and developers we make available for purchase or use via Embeddable.com, along with any of our associated software, tools, developer services, documentation, and websites.
We grant you a non-exclusive right to access and use the Services during the Term (as defined below). This includes the right to use Embeddable’s platform, Software Development Kit (SDK), and APIs, to integrate the Services into your applications, products, or services (each a “Customer Application”) and to make the Services and Customer Applications available to Collaborators (as defined below) and your own users and customers (”End Users”).
1.2 Responsibilities for Your Account. You must provide accurate and up-to-date account information. You are responsible for all activities that occur under your account, including the activities of any collaborator (each, an “Collaborator”) who is provisioned with an account under your account (an “Collaborator Account”) or accesses the Services through your Customer Application. You may not make account access credentials available to third parties, share individual login credentials between multiple users on an account, or resell or lease access to your account or any Collaborator Account. You will promptly notify us if you become aware of any unauthorized access to or use of your account or our Services.
We own all right, title, and interest in and to the Services. You only receive rights to use the Services as explicitly granted in this Agreement. You will not, and will not permit Collaborators to:
(a) use the Services or Embeddable Content (as defined below) in a manner that violates any applicable laws or Embeddable Policies;
(b) use the Services or Customer Content in a manner that infringes, misappropriates, or otherwise violates any third party’s rights;
(c) send us any personal information of children under 13 or the applicable age of digital consent or allow minors to use our Services without consent from their parent or guardian;
(d) reverse assemble, reverse compile, decompile, translate, engage in stealing attacks, or otherwise attempt to discover the source code of the Services, algorithms, and systems of the Services (except to the extent these restrictions are contrary to applicable law);
(e) use any method to extract data from the Services other than as permitted.
3.1 Customer Content. You and Collaborators may use the Services to build analytics experiences using our Builder (”Embeddable Content”) and embed these in other websites or applications. To do this, you may connect data to the Services and define charting or other components in code (”Customer Input”). Together, this is known as “Customer Content”. As between you and Embeddable, and to the extent permitted by applicable law, you (a) retain all ownership rights in Customer Input and (b) are permitted to use Embeddable Content during the Term.
3.2 Our Obligations for Customer Content. We will only use Customer Content as necessary to provide you with the Services, comply with applicable law, and enforce Embeddable Policies.
3.3 Your Obligations for Customer Content. You are responsible for all Customer Input and represent and warrant that you have all rights, licenses, and permissions required to provide Customer Input to the Services. You are solely responsible for all use of Embeddable Content and evaluating this for accuracy and appropriateness for your use case, including by utilizing human review as appropriate.
4.1 Use and Nondisclosure. “Confidential Information” means any business, technical or financial information, materials, or other subject matter disclosed by one party (“Discloser”) to the other party (“Recipient”) that is identified as confidential at the time of disclosure or should be reasonably understood by Recipient to be confidential under the circumstances. Recipient agrees it will: (a) only use Discloser's Confidential Information to exercise its rights and fulfill its obligations under this Agreement, (b) take reasonable measures to protect the Confidential Information, and (c) not disclose the Confidential Information to any third party except as expressly permitted in this Agreement.
4.2 Exceptions. The obligations in Section 4.1 do not apply to any information that (a) is or becomes generally available to the public through no fault of Recipient, (b) was in Recipient’s possession or known by it prior to receipt from Discloser, (c) was rightfully disclosed to Recipient without restriction by a third party, or (d) was independently developed without use of Discloser’s Confidential Information. Recipient may disclose Confidential Information only to its employees, contractors, and agents who have a need to know and who are bound by confidentiality obligations at least as restrictive as those of this Agreement. Recipient will be responsible for any breach of this Section 4 by its employees, contractors, and agents. Recipient may disclose Confidential Information to the extent required by law, provided that Recipient uses reasonable efforts to notify Discloser in advance.
5.1 Our Security Program. We will maintain an information security program (including the adoption and enforcement of internal policies and procedures) designed to (a) protect the Services and Customer Content against accidental or unlawful loss, access, or disclosure, (b) identify reasonably foreseeable and internal risks to security and unauthorized access, and (c) minimize security risks, including through regular risk assessments and testing.
5.2 Our Security Obligations. As part of our information security program, we will: (a) implement and enforce policies related to electronic, network, and physical monitoring and data storage, transfer, and access; (b) require multi-factor authentication for employees; (c) maintain a logging and incident response process; (d) conduct periodic reviews of our security and the adequacy of our information security program as aligned to industry best practices and our own policies and procedures.
6.1 Personal Data. If you use the Services to process personal data, you must (a) provide legally adequate privacy notices and obtain necessary consents for the processing of personal data by the Services, (b) process personal data in accordance with applicable law, and (c) if processing “personal data” or “Personal Information” as defined under applicable data protection laws, execute our Data Processing Addendum.
6.2. Data breach notification. In the event of a data breach or unauthorised access to Customer Data, Embeddable will promptly notify the Customer within without undue delay and, where feasible, not later than 72 hours hours of becoming aware of the breach. We will provide the Customer with sufficient information regarding the breach, its impact, and our response actions. Customers are responsible for ensuring that they maintain up-to-date contact information in their account to receive these notifications. Additionally, we will take necessary steps to mitigate any potential harm and prevent future occurrences in accordance with applicable laws and regulations.
7.1 Fees and Billing. You agree to pay all fees charged to your account (“Fees”), or sent to you via invoice, according to the prices and terms specified in your Contract, or as otherwise stated in an Order Form. We have the right to correct pricing errors or mistakes even after issuing an invoice or receiving payment. If you have provided us with a payment method, you authorize us and our third-party payment processor(s) to charge that payment method provided on your account on an agreed-upon periodic basis, but we may reasonably change the date on which the charge is posted. Fees are payable in U.S. dollars and are due upon invoice issuance, unless otherwise agreed in an Order Form. Payments are nonrefundable except as provided in this Agreement.
7.1 Taxes. Fees are exclusive of taxes, which we will charge as required by applicable law in connection with the Services.
7.4 Disputes and Late Payments. To dispute an invoice, you must contact our team within thirty (30) days of issuance. Overdue undisputed amounts may be subject to a finance charge of 1.5% of the unpaid balance per month, and we may suspend the Services immediately after providing written notice of late payment.
8.1 Term. The term of this Agreement will commence upon the earlier of your online acceptance of these Business Terms, the Effective Date or Start Date of an Order Form or Contract, or the date you first use the Services, and will remain in effect until terminated pursuant to this Section 8 (“Term”). If you purchase a subscription to the Services, the subscription term will automatically renew for successive periods unless either of us gives the other notice of its intent not to renew. That notice must be given at least thirty days before the start of the next renewal period.
8.2 Termination. Unless you purchase Services for a committed duration, you may request termination of this Agreement at any time by deleting your account or letting us know in writing. The termination will take place at the end of the billing period in which you are in. For example, if you pay for the services on a monthly basis, and request termination half way through your billing month, termination will take effect at the end of the billing month, and no more payments will be taken. Both you and Embeddable may terminate this Agreement upon written notice (a) if the other party materially breaches this Agreement and does not cure the breach within thirty (30) days after receiving written notice of the breach or (b) if the other party ceases its business operations or becomes subject to insolvency proceedings. We may suspend your or any Collaborator’s access to the Services or terminate this Agreement or any Order Form or Contract: (i) if required to do so by law; (ii) to prevent a security risk or other credible risk of harm or liability to us, the Services, or any third party; or (iii) for repeated or material violations of the Embeddable Policies. We will use reasonable efforts to notify you of any suspension or termination and give you the opportunity to resolve the issue prior to suspension or termination.
8.3 Effect of Termination. Termination or expiration will not affect any rights or obligations, including the payment of amounts due, which have accrued under this Agreement up to the date of termination or expiration. Upon termination or expiration of this Agreement, the provisions that are intended by their nature to survive termination will survive and continue in full force and effect in accordance with their terms, including confidentiality obligations, limitations of liability, and disclaimers. Upon termination of this Agreement, we have the right to delete all Customer Content from our systems within 30 days, unless we are legally required to retain it.
The Services are provided “as is” and we disclaim all warranties, express or implied, including all implied warranties of merchantability, fitness for a particular purpose and title, non-infringement, and any warranties arising out of course of dealing or trade usage. Despite anything to the contrary, we make no representations or warranties (a) that use of the Services will be uninterrupted, error free, or secure, (b) that defects will be corrected, (c) that Customer Content will be accurate, or (d) with respect to Third Party Offerings.
You expressly understand and agree that Embeddable shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Embeddable has been advised of the possibility of such damages), resulting from your usage of the Service.
You agree to hold harmless and indemnify Embeddable, and its affiliates, officers, agents, and employees from and against any third party claim arising from or in any way related to your use of the Service, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, Embeddable will provide you with written notice of such claim, suit or action. The failure of Embeddable to exercise or enforce any right or provision of the Terms of Use shall not constitute a waiver of such right or provision. The Terms of Use constitutes the entire agreement between you and Embeddable and govern your use of the Service, superseding any prior agreements between you and Embeddable (including, but not limited to, any prior versions of the Terms of Use).
11.1 Limitations on Indirect Damages. Except for (i) a party’s gross negligence or wilful misconduct, (ii) your breach of Section 2 (Restrictions), (iii) either party’s breach of its confidentiality obligations under Section 4 (Confidentiality), (iv) our breach of Section 5 (Security), or (v) a party’s indemnification obligations under this Agreement, neither you nor Embeddable or our respective affiliates or licensors will be liable under this Agreement for any indirect, punitive, incidental, special, consequential, or exemplary damages (including lost profits) even if that party has been advised of the possibility of those damages.
11.2 *Liability Cap. *Except for (i) a party’s gross negligence or wilful misconduct or (ii) a party’s indemnification obligations under this Agreement, each party’s total liability under the Agreement will not exceed the total amount you have paid to us in the twelve (12) months immediately prior to the event giving rise to liability. The foregoing limitations will apply despite any failure of essential purpose of any limited remedy and to the maximum extent permitted under applicable law.
You must comply with all applicable trade laws, including sanctions and export control laws. Our Services may not be used in or for the benefit of, or exported or re-exported to (a) any U.S. embargoed country or territory or (b) any individual or entity with whom dealings are prohibited or restricted under applicable trade laws. Our Services may not be used for any end use prohibited by applicable trade laws, and your Input may not include material or information that requires a government license for release or export.
This Agreement shall be governed by and construed in accordance with the laws of the United Kingdom, without giving effect to any principles of conflicts of law.
YOU AGREE TO THE FOLLOWING MANDATORY ARBITRATION AND CLASS ACTION WAIVER PROVISIONS:
13.1 MANDATORY ARBITRATION. You and Embeddable agree to resolve any claims arising out of or relating to this Agreement or our Services, regardless of when the claim arose, even if it was before this Agreement existed (a “Dispute”), through final and binding arbitration.
13.2 Informal Dispute Resolution. We would like to understand and try to address your concerns prior to formal legal action. Before either of us files a claim against the other, we both agree to try to resolve the Dispute informally. We will do so by sending you notice to the email address associated with your account. If we are unable to resolve a Dispute within 60 days, either of us has the right to initiate arbitration. We also both agree to attend an individual settlement conference if either party requests one during this time. Any statute of limitations will be tolled during this informal resolution process.
13.3 Exceptions. Nothing in this Agreement requires arbitration of the following claims: (a) individual claims brought in small claims court; and (b) injunctive or other equitable relief to stop unauthorized use or abuse of the Services or intellectual property infringement.
13.4 Severability. If any part of this Section 13 is found to be illegal or unenforceable, the remainder will remain in effect, except that if a finding of partial illegality or unenforceability would allow class or representative arbitration, this Section 13 will be unenforceable in its entirety. Nothing in this section will be deemed to waive or otherwise limit the right to seek public injunctive relief or any other non-waivable right, pending a ruling on the substance of that claim from the arbitrator.
14.1 Updates. We may update these Business Terms or the Embeddable Policies by providing you with reasonable notice, including by posting the update on our website. If, in our sole judgment, an update materially impacts your rights or obligations, we will provide at least 30 days’ notice before the update goes into effect, unless the update is necessary for us to comply with applicable law, in which case we will provide you with as much notice as reasonably possible. Any other updates will be effective on the date we post the updated Business Terms or Embeddable Policies. Your continued use of, or access to, the Services after an update goes into effect will constitute acceptance of the update. If you do not agree with an update, you may stop using the Services or terminate this Agreement.
