Terms of Service
These Terms of Service (the "Agreement") are entered into by and between ScaleMate LLC, a Wyoming limited liability company (the "Company," "we," "us," or "our") and the entity or person accessing or using any Services (the "Customer" or "you"). 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 "Customer" or "you" reference your company.
The "Effective Date" of this Agreement is the date at which the Customer is granted access to any Services.
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.
1. DEFINITIONS
The following terms have the meanings set forth below:
"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.
"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.
"Documentation" means the technical user documentation provided with the Services.
"Feedback" means comments, questions, suggestions, or other feedback relating to the Services, but excluding any Customer Data.
"Initial Term" means the subscription term designated in an Order Form during which the Services are provided to the Customer.
"Intellectual Property Rights" include all valid patents, trademarks, copyrights, trade secrets, moral rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of any state, country, or other jurisdiction.
"Laws" mean all applicable local, state, federal, and international laws, regulations, and conventions.
"Managed Services" means the optional managed service offering where Company operates the Services on Customer's behalf through Customer's account access.
"Order Form" means a written or electronic form to order the Services referencing this Agreement.
"Party" means either the Company or the Customer; the "Parties" means both the Company and the Customer.
"Permitted User" means an employee or contractor of the Customer or its Affiliate who is authorized to access the Services.
"Services" means the Company's proprietary software-as-a-service platform for sales development and outreach automation, including all products, services, features, and software provided by the Company to the Customer.
"Subscription Term" means the period during which Customer has access to the Services, including any Initial Term or renewal period.
"Third-Party Platform" means any software, software-as-a-service, data sources or other products or services not provided by the Company that are integrated with or otherwise accessible through the Services, including but not limited to CRM systems, LinkedIn, and other sales and marketing platforms.
2. SERVICES
2.1 Provision of Services
The Services are provided on a subscription basis. The Customer will purchase, and the Company will provide the Services as agreed upon in the applicable Order Form or through the platform interface.
2.2 Access to Services
The Customer may access and use the Services solely for its own internal business purposes and in accordance with the terms and conditions of this Agreement and Documentation. Use of and access to the Services is permitted only by Permitted Users. Customer is responsible for all activities that occur under Customer's account and must maintain the confidentiality of account credentials. Customer will notify Company immediately of any unauthorized use of its account.
2.3 Managed Services
If Customer subscribes to Managed Services, Company will operate the Services on Customer's behalf through Customer's authorized account access on the platform. Customer grants Company permission to access Customer's account solely for the purpose of performing the Managed Services. Company will never request or require Customer's login credentials for any Third-Party Platform. Customer remains solely responsible for its use of Third-Party Platforms and compliance with their terms of service.
2.4 General Restrictions
Customer will not (and will not permit any third party to):
Rent, lease, provide access to, or sublicense the Services to a third party
Use the Services to provide, or incorporate the Services into, any product or service provided to a third party
Reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services
Copy or modify the Services or Documentation, or create any derivative work from any of the foregoing
Remove or obscure any proprietary or other notices contained in the Services
Use the Services in violation of any applicable Laws, including without limitation laws governing unsolicited communications, spam, data protection, or privacy
Use the Services in any manner that could damage, disable, overburden, or impair the Services
Attempt to gain unauthorized access to any Services, accounts, computer systems, or networks
Use the Services for any illegal, harmful, or abusive purpose
2.5 Trial Period
Company offers a trial period during which Customer may use the Services without payment. Billing will commence only after Customer successfully books a qualified sales meeting through the Services and that meeting is held. Company reserves the right, in its sole discretion, to determine what constitutes a qualified meeting and to refuse service or terminate accounts for Customers not using the Services in good faith or for legitimate business purposes. Company may terminate any trial access at any time for any reason.
3. CUSTOMER DATA AND OBLIGATIONS
3.1 Customer Data Ownership
As between the parties, Customer retains all right, title, and interest in and to the Customer Data. Subject to the terms of this Agreement, Customer grants to Company 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 Customer.
3.2 Customer Representations and Warranties
Customer represents and warrants that:
It has all necessary rights, consents, and permissions to collect, share, and use all Customer Data as contemplated in this Agreement
No Customer Data will violate or infringe any third party rights or any Laws
It will comply with all applicable Laws in its use of the Services, including without limitation the Telephone Consumer Protection Act (TCPA), CAN-SPAM Act, GDPR, CCPA, and any other laws governing marketing communications, data protection, and privacy
It will obtain all necessary consents from individuals before sending them communications through the Services
Customer will not use the Services to send unsolicited communications or engage in spam or other prohibited activities
3.3 Prohibited Data
Customer will not submit, store, or process through the Services any:
Credit card, debit card, or other payment card data subject to PCI DSS
Protected health information regulated by HIPAA
Social Security numbers, driver's license numbers, or other government-issued identification numbers
Any other special categories of personal data as defined under applicable data protection Laws, unless expressly agreed in writing
3.4 Third-Party Platforms
Customer is solely responsible for complying with the terms of service, privacy policies, and other agreements of any Third-Party Platforms that Customer uses in connection with the Services. Customer acknowledges that Company has no responsibility for Third-Party Platforms or how they use or process Customer Data. Company may disable integrations with any Third-Party Platform at any time. To the extent Customer uses features that integrate with Third-Party Platforms, Customer uses such features at its own risk.
3.5 Customer Indemnification
Customer will defend Company from and against any claim arising from or relating to any Customer Data, Customer's use of a Third-Party Platform, or Customer's use of the Services in violation of Laws, and will indemnify and hold Company harmless from and against any damages and costs awarded against Company or agreed in settlement by Customer (including reasonable attorneys' fees) resulting from such claim.
3.6 Anonymized Data
Notwithstanding anything to the contrary herein, Company may collect and aggregate technical and other data about Customer's use of the Services that is non-personally identifiable ("Anonymized Data"). Company may use Anonymized Data to analyze, improve, support, and operate the Services and otherwise for any business purpose, including to generate industry benchmarks, best practices, or reports for distribution to Company's customers.
4. SECURITY AND DATA PROTECTION
4.1 Security Measures
Company will maintain commercially reasonable technical and organizational measures designed to protect Customer Data against unauthorized access, use, alteration, or disclosure. However, Company will have no responsibility for errors in transmission, unauthorized third-party access, or other causes beyond Company's control.
4.2 Data Processing
All data processing activities by the Services will be governed by Company's data processing practices. Company processes Customer Data as a processor on behalf of Customer in accordance with Customer's instructions as set forth in this Agreement. Customer acknowledges that Company uses third-party service providers to host and operate the Services, and that Customer Data may be transferred to and processed in the United States and other jurisdictions where Company or its service providers maintain facilities.
4.3 Security Incidents
Upon becoming aware of any security breach involving Customer Data, Company will notify Customer without undue delay and provide such information as Customer may reasonably require. Company's notification of or response to a security breach shall not be construed as an acknowledgement of any fault or liability.
5. INTELLECTUAL PROPERTY
5.1 Company Ownership
This is a subscription agreement for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to use the Services and that no ownership rights are being conveyed to Customer under this Agreement. Company and its licensors retain all right, title, and interest (including all Intellectual Property Rights) in and to the Services, Documentation, and all related technology, including any derivative works, modifications, or improvements thereof.
5.2 Feedback
Customer may submit Feedback to Company. Company may freely use or exploit Feedback in connection with the Services and may disclose such Feedback to third parties. Company will not disclose Customer's name in connection with any use of Feedback without Customer's consent.
6. FEES AND PAYMENT
6.1 Subscription Fees
Fees for the Services are as set forth in the applicable Order Form or as presented through the platform interface. Company uses a subscription model where billing commences after Customer successfully books a qualified sales meeting through the Services that is held. Pricing scales based on usage as further described in the platform.
6.2 Payment Terms
All fees will be charged to Customer's payment method on file. Customer authorizes Company and its payment processor (Stripe, Inc.) to charge Customer's payment method for all fees. If Customer's primary payment method fails, Company may use a secondary payment method on file. All fees are non-refundable except as expressly set forth in this Agreement.
6.3 Payment Processing
Company uses Stripe, Inc. and its affiliates ("Stripe") as its third-party payment processor. Payment processing services are provided by Stripe and are subject to the Stripe Connected Account Agreement (available at https://stripe.com/legal) and Stripe's Privacy Policy (available at https://stripe.com/privacy). By agreeing to these Terms, Customer also agrees to be bound by Stripe's terms. Company assumes no liability for payment processing.
6.4 Taxes
All fees are exclusive of taxes. Customer is responsible for paying all applicable sales, use, GST, value-added, withholding, and similar taxes. If Company is required by law to withhold any taxes from payments, the fees will be increased so that Company receives the full amount after withholding.
6.5 Suspension for Non-Payment
Company reserves the right to suspend Customer's access to the Services immediately upon any late payment, without liability to Customer. Access will be restored once payment is received and the account is current.
7. TERM AND TERMINATION
7.1 Term
This Agreement is effective as of the Effective Date and continues until terminated in accordance with this Section 7.
7.2 Termination for Cause
Either party may terminate this Agreement if the other party:
Fails to cure any material breach within thirty (30) days after written notice
Ceases operation without a successor
Seeks protection under any bankruptcy, receivership, or similar proceeding, or if any such proceeding is instituted against that party and not dismissed within sixty (60) days
7.3 Termination by Company
Company may suspend or terminate Customer's access to the Services immediately if:
Customer breaches Section 2.4 (General Restrictions) or Section 3 (Customer Data and Obligations)
Company reasonably believes Customer is using the Services fraudulently or for illegal purposes
Continued provision of Services would violate applicable Laws
Customer's account is thirty (30) days or more overdue
7.4 Effect of Termination
Upon termination:
Customer will immediately cease all use of the Services
All outstanding fees become immediately due and payable
Customer will have thirty (30) days to export Customer Data from the Services
After thirty (30) days, Company may delete all Customer Data
7.5 Survival
The following Sections will survive any termination: 2.4 (General Restrictions), 3.5 (Customer Indemnification), 3.6 (Anonymized Data), 5 (Intellectual Property), 6 (Fees and Payment), 8 (Disclaimers), 9 (Limitation of Liability), 10 (Indemnification), 11 (Confidential Information), and 12 (Dispute Resolution).
8. DISCLAIMERS
THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
COMPANY DOES NOT WARRANT THAT:
The Services will be uninterrupted, secure, or error-free
The Services will meet Customer's requirements
Any defects will be corrected
The Services are free of viruses or other harmful components
Customer will achieve any particular results from using the Services
COMPANY IS NOT RESPONSIBLE FOR ANY RESULTS OR ADVICE PROVIDED VIA THE SERVICES. COMPANY DISCLAIMS ALL LIABILITY WITH RESPECT TO THE PERFORMANCE OR AVAILABILITY OF THIRD-PARTY PLATFORMS.
9. LIMITATION OF LIABILITY
9.1 CONSEQUENTIAL DAMAGES WAIVER
TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY (NOR ITS AFFILIATES) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, LOST SAVINGS, LOSS OF BUSINESS OPPORTUNITY, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
9.2 LIABILITY CAP
EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), COMPANY'S ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO COMPANY DURING THE PERIOD IN WHICH THE LIABILITY AROSE, UP TO A MAXIMUM OF TWELVE (12) MONTHS OF FEES.
9.3 EXCLUDED CLAIMS
"Excluded Claims" means any claim arising from:
Customer's breach of Section 2.4 (General Restrictions)
Customer's breach of Section 3 (Customer Data and Obligations)
Either party's breach of Section 11 (Confidential Information)
Either party's indemnification obligations
Death or bodily injury caused by either party's negligence
9.4 ESSENTIAL PURPOSE
The parties agree that the waivers and limitations in this Section 9 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
10. INDEMNIFICATION
10.1 Company Indemnification
Company will defend Customer from and against any claim by a third party alleging that the Services infringe any U.S. patent, copyright, or trademark, and will indemnify Customer from damages and costs finally awarded or agreed in settlement (including reasonable attorneys' fees), provided that Company receives:
Prompt written notice of the claim
Exclusive control of the defense and settlement
Reasonable cooperation from Customer
This indemnification does not apply if the claim arises from:
Modification of the Services by anyone other than Company
Combination of the Services with non-Company products
Customer Data
Customer's use of Third-Party Platforms
Customer's violation of this Agreement
If Customer's use of the Services is enjoined or Company determines necessary to avoid liability, Company may: (a) obtain rights for Customer to continue using the Services; (b) replace or modify the Services to be non-infringing; or (c) terminate this Agreement and refund prepaid fees for the unused portion of the Subscription Term.
10.2 Customer Indemnification
Customer will defend Company from and against any claim arising from Customer Data, Customer's use of Third-Party Platforms, or Customer's violation of Laws, and will indemnify Company from damages and costs finally awarded or agreed in settlement (including reasonable attorneys' fees), provided that Customer receives prompt written notice, exclusive control of the defense, and reasonable cooperation from Company.
11. CONFIDENTIAL INFORMATION
11.1 Definition
"Confidential Information" means all non-public information disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") that is marked as confidential or that reasonably should be understood to be confidential given the nature of the information and circumstances of disclosure. Company's Confidential Information includes the Services, Documentation, performance information, and the terms of this Agreement.
11.2 Obligations
The Receiving Party will:
Hold Confidential Information in confidence
Not disclose Confidential Information to third parties except to employees, contractors, and advisors who need to know and are bound by confidentiality obligations
Not use Confidential Information except to fulfill its obligations under this Agreement
11.3 Exceptions
Confidential Information does not include information that:
Was rightfully known to the Receiving Party before disclosure
Is or becomes publicly available through no fault of the Receiving Party
Is rightfully obtained from a third party without breach of confidentiality obligations
Is independently developed without access to Confidential Information
Must be disclosed by law (with prior notice to Disclosing Party if legally permitted)
11.4 Duration
These confidentiality obligations survive for three (3) years after termination of this Agreement.
12. DISPUTE RESOLUTION
12.1 IMPORTANT NOTICE
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS AND REQUIRES YOU TO RESOLVE DISPUTES THROUGH BINDING ARBITRATION RATHER THAN IN COURT. YOU WAIVE YOUR RIGHT TO A JURY TRIAL AND TO PARTICIPATE IN CLASS ACTIONS.
12.2 Agreement to Arbitrate
Any dispute, claim, or controversy arising out of or relating to this Agreement or the Services (each, a "Dispute") will be resolved exclusively through final and binding arbitration, rather than in court, except that either party may assert claims in small claims court if the claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this arbitration agreement.
12.3 Prohibition of Class Actions
YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS AND MAY NOT PRESIDE OVER ANY FORM OF CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF FOR THAT PARTY'S INDIVIDUAL CLAIMS.
12.4 Pre-Arbitration Dispute Resolution
Before initiating arbitration, the complaining party must first send a written Notice of Dispute to the other party describing the nature and basis of the claim and the specific relief sought. Notices to Company should be sent to: ScaleMate LLC, 777 NW 72nd Avenue Unit 2143, Miami, FL 33126, Attn: Legal. The parties will attempt to resolve the Dispute through good faith negotiation for sixty (60) days after receipt of the Notice. If the Dispute is not resolved within sixty (60) days, either party may commence arbitration.
12.5 Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") Consumer Arbitration Rules, as modified by this Agreement. The AAA Rules are available at www.adr.org. The arbitrator must follow the provisions of this Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration agreement.
Unless Company and Customer agree otherwise, any arbitration hearings will take place in Miami-Dade County, Florida, or another mutually convenient location. If Customer's claim is for $10,000 or less, Customer may choose whether the arbitration will be conducted solely based on documents, through a telephonic hearing, or by an in-person hearing. The arbitrator will issue a reasoned written decision sufficient to explain the findings and conclusions.
12.6 Costs of Arbitration
Payment of filing, administration, and arbitrator fees will be governed by the AAA Rules. If the value of relief sought is $75,000 or less, Company will pay all such fees at Customer's request. If the value exceeds $75,000 and Customer demonstrates inability to pay, Company will pay Customer's portion of the fees.
12.7 Governing Law
This Agreement will be governed by the laws of the State of Florida, without regard to conflict of laws principles. Any arbitration or court proceeding will take place in Miami-Dade County, Florida.
12.8 Severability
If any portion of this Section 12 is found to be unenforceable, the remainder will remain in full force and effect. If the class action waiver is found invalid, this entire arbitration agreement will be unenforceable and Disputes will be resolved in court.
12.9 Changes to Arbitration Agreement
If Company makes any future change to this arbitration agreement (other than a change to the notice address), Customer may reject the change by sending written notice to Company within thirty (30) days of the change. By rejecting the change, Customer agrees to arbitrate under the version of this Section 12 in effect when Customer first accepted this Agreement.
13. GENERAL PROVISIONS
13.1 Entire Agreement
This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements, understandings, and communications regarding the subject matter hereof. No provision of any purchase order or other business form will supersede the terms of this Agreement.
13.2 Modifications
Company may modify this Agreement from time to time. Company will provide notice of material changes through the Services, by email, or other reasonable means. Continued use of the Services after changes become effective constitutes acceptance of the modified Agreement. If Customer objects to changes, Customer's sole remedy is to terminate this Agreement.
13.3 Assignment
Neither party may assign this Agreement without the other party's prior written consent, except that either party may assign this Agreement in connection with a merger, acquisition, or sale of all or substantially all of its assets. Any unauthorized assignment is void.
13.4 Waiver
No waiver of any provision of this Agreement will be effective unless in writing and signed by the waiving party. No failure or delay in exercising any right will constitute a waiver.
13.5 Severability
If any provision of this Agreement is held to be invalid or unenforceable, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
13.6 Notices
All notices under this Agreement must be in writing and sent to:
To Company: ScaleMate LLC, 777 NW 72nd Avenue Unit 2143, Miami, FL 33126, Attn: Legal
To Customer: The address provided in Customer's account
Notices will be deemed received: (i) if by hand, upon receipt; (ii) if by overnight courier, the next business day; (iii) if by certified mail, two business days after mailing; or (iv) if by email, the next business day.
13.7 Independent Contractors
The parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture, agency, or employment relationship.
13.8 Force Majeure
Neither party will be liable for any delay or failure to perform due to causes beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, war, or failures of telecommunications or data networks.
13.9 Export Control
Customer agrees to comply with all export and import laws. Customer represents that it is not located in (or a national of) a country subject to U.S. government embargo or designated as a "terrorist supporting" country, and is not on any U.S. government list of prohibited or restricted parties.
13.10 U.S. Government Rights
If Customer is a U.S. government entity, the Services are "commercial computer software" and "commercial computer software documentation" as defined in FAR 12.212 and DFARS 227.7202, provided with "RESTRICTED RIGHTS."
13.11 Telecommunications Consent
Customer expressly consents to be contacted by Company by SMS, email, phone calls (including using prerecorded messages or automatic dialing systems), or other means, for any purpose arising out of or relating to this Agreement or Customer's use of the Services. Customer certifies that all phone numbers and email addresses provided to Company are accurate and that Customer is authorized to receive communications at those numbers and addresses. Customer may opt out of marketing communications but will still receive transactional and account-related communications.
13.12 Electronic Signatures and Communications
Customer agrees that electronic signatures and communications have the same legal effect as physical signatures and paper communications.
14. CONTACT INFORMATION
If you have any questions about this Agreement or the Services, please contact us at:
ScaleMate LLC
777 NW 72nd Avenue Unit 2143
Miami, FL 33126
Email: halen@scalemate.io
BY USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT.