When you use Bold Penguin Terminal these are the Terms of Service.
Last updated: November 30, 2022
YOUR USE OF THE PROPRIETARY BOLD PENGUIN TERMINAL (“TERMINAL”), IS SUBJECT TO THESE SUPPLEMENTAL TERMS OF SERVICE, THE STANDARDS OF CONDUCT AND THE BOLD PENGUIN CUSTOMER TERMS OF SERVICE (“CUSTOMER TERMS”) (COLLECTIVELY, “AGREEMENT”). THE TERMINAL IS AN “ADDITIONAL SERVICE” UNDER THE CUSTOMER TERMS. TO USE THE TERMINAL, YOU MUST AGREE TO BE BOUND BY THE AGREEMENT WITH BOLD PENGUIN, INC. AND/OR BOLD PENGUIN COMPANY, LLC OR OTHER BOLD PENGUIN SUBSIDIARY, AS APPLICABLE (COLLECTIVELY, “BOLD PENGUIN”, "WE", "US", AND "OUR"). IF YOU DO NOT ACCEPT THIS AGREEMENT, DO NOT USE THE TERMINAL, AS YOUR USE OF THE TERMINAL IS DEEMED TO BE YOUR ACCEPTANCE OF THE AGREEMENT IN FULL.
The Bold Penguin Privacy Notice (available here) is incorporated herein by reference. This Agreement governs your use of the Terminal, however accessed, including via an internet browser, smartphone, tablet, or other internet connected device.
By signing up for the Terminal on behalf of an agency or other legal entity, you confirm that (a) you are duly authorized to represent the legal entity and any affiliates of the legal entity who will be using the Terminal, (b) you accept the terms of this Agreement on behalf of such legal entity and affiliates, and (c) any references to “you” in this Agreement refer to such legal entity, affiliates and all of the employees, consultants and agents of those respective parties. You are responsible for all activity on the Terminal that occurs under your account.
1.1 Additional Services. The Terminal is a subscription service that you enroll with directly through our website (“Additional Services”). Some of these Additional Services have specific additional terms that apply to your use of those Additional Services (the “Supplemental Terms”), and those Supplemental Terms become part of this Agreement. In the event a Supplemental Term directly conflicts with any term in this Agreement, the Supplemental Term will apply to your use of the Additional Service instead of the term contained in this Agreement. For the avoidance of doubt, any reference to the Terminal in this Agreement will include any applicable Additional Service(s).
1.2. Modification of Agreement. Subject to Article 5 of these Supplemental Terms, Bold Penguin may modify or update the Customer Terms or the Supplemental Terms at any time. You may review the most current version of the Customer Terms here.
2.1 Term. These Supplemental Terms take effect on your Terminal Activation Date (defined below) and will remain in effect for as long as you have an active subscription for the Terminal (the "Term").
2.2 Activation and Renewal.
2.2.1 Terminal Activation Date. Your Terminal Activation Date is the date when you enroll for your Terminal subscription and complete your Payment Method on File (as defined in Section 3.2 of the Customer Terms) online.
2.2.2 Terminal Term Start Date (Monthly Option). If you select the monthly payment option on your Terminal Order Form, the Terminal subscription is a month-to-month subscription (see Section 2.2.5 for annual pay option). As such, the Terminal Term Start Date is the same day of each month as the Terminal Activation Date. If a subsequent month does not have the same date as your Terminal Activation Date, the last day of the affected calendar month will be substituted (e.g., if your Terminal Activation Date is the 30th of the month, in February, the 28th would be used for the Terminal Term Start Date for the month of February).
2.2.3 Terminal Subscription Monthly Due Date. The Monthly Due Date is the same day of each month as the Terminal Term Start Date. Bold Penguin will charge your Payment Method on File the amount of your Monthly Terminal License Fee, as indicated on your Terminal Order Form, within two (2) business days of each Terminal Term Start Date.
2.2.4 Terminal Non-Renewal. Your Terminal subscription will auto renew monthly on your Terminal Term Start Date unless you provide us at least thirty (30) days prior notice (“Non-Renewal Notice”) before the next Terminal Term Start Date to Notices@boldpenguin.com. Once you provide Non-Renewal Notice, the Termination Effective Date will be the Terminal Term Start Date that follows at least 30 days after the date of your Non-Renewal Notice.
2.2.5. Terminal Term (Annual Option). If you select the annual payment option on your Terminal Order Form, the Terminal subscription is an annual subscription, and these terms apply:
a. Your Terminal Term Start Date is the same date as your Terminal Activation Date, and Bold Penguin will charge your Payment Method on File the amount of your Annual Terminal License Fee, as indicated on your Terminal Order Form, within two (2) business days of your Terminal Term Start Date.
b. Your Terminal subscription will auto renew every year on the anniversary of your Terminal Term Start Date unless you provide us Non-Renewal Notice before your next Terminal Term Start Date to Notices@boldpenguin.com. Once you provide Non-Renewal Notice as provided herein, the Termination Effective Date will be your Terminal Term Start Date that follows at least 30 days after the date of your Non-Renewal Notice.
2.3 Additional Terminals. If you add another Terminal subscription after your Terminal Term Start Date (“Additional Terminal”), the Additional Terminal will be subject to Section 2.2 and dates assigned pursuant to those terms as designated by the Terminal Activation Date of the Additional Terminal. For avoidance of doubt, if you would like a separate instance of the Terminal for an affiliate, each affiliate must purchase its own subscription to the Terminal and separately accept the terms of this Agreement.
3.1 Recurring Authorization. YOUR SUBSCRIPTION TO THE TERMINAL AUTOMATICALLY RENEWS AS SET FORTH IN SECTION 2.2 AND AS INDICATED ON YOUR TERMINAL ORDER FORM. YOUR PAYMENT METHOD ON FILE WILL BE AUTOMATICALLY CHARGED ON YOUR TERMINAL TERM START DATE IN ACCORDANCE WITH YOUR TERMINAL ORDER FORM AND YOUR PAYMENT OPTION (MONTHLY OR ANNUAL) UNLESS YOU PROPERLY NON-RENEW AS SET FORTH ABOVE (see Section 2.2.4 and 2.2.5(b)). You expressly authorize Bold Penguin to debit or charge, as applicable, your Payment Method on File in accordance with these Supplemental Terms.
3.2 Suspension for Non-Payment. If your Payment Method on File cannot be debited or charged, Bold Penguin will notify you to update your payment information. In the event you do not update your Payment Method on File promptly upon Bold Penguin’s notice, your access to the Terminal may be suspended or terminated. You acknowledge that your Terminal License Fee (Monthly or Annual) is non-refundable, and that Bold Penguin will not issue refunds or credits for partial months of access to the Terminal absent Bold Penguin’s material breach of these Supplemental Terms.
3.3 Discount Recovery. We may offer you certain discounts, whether for prepayment or otherwise. If you non-renew your Terminal subscription or your subscription is suspended for nonpayment before you fully satisfy the requirements of the applicable discount program, to the extent you no longer qualify for the applicable discount, you will be charged the difference between market rates at the time of suspension or non-renewal and the discount pricing for the number of months your subscription was active. If you owe Bold Penguin any funds on the date of non-renewal, you expressly authorize Bold Penguin to charge your Payment Method on File or invoice you for any remaining balance due to Bold Penguin.
3.4 Subscription Charge Adjustments. Bold Penguin may at any time, upon notice of at least 30 days, or a longer period if required by Applicable Law, change the price of your Additional Service(s), or institute new charges or fees. Price changes and institution of new charges will apply to your next renewal term after the 30 days' notice and the updated fees will be subtracted from your prepayment. If you do not agree to any such price changes, then you must timely cancel your Terminal subscription in accordance with Section 2.2.4 or 2.2.5(b), above and stop using the Terminal prior to the commencement of the renewal subscription period for which the price change applies.
4.1 Suspension or Termination for Material Breach. In addition to Bold Penguin’s rights under Section 3.2 (Suspension for Non-Payment) of these Supplemental Terms, the parties acknowledge Bold Penguin’s rights under Section 2.5 of the Customer Terms (Suspension and Termination of Additional Services). Bold Penguin may also downgrade, suspend, or terminate your access to the Terminal without liability, after providing you with 30 days’ advance written notice, if (a) you fail to affirmatively agree to material modifications of this Agreement pursuant to Section 5.1 below, or (b) you do not log in to or otherwise use the Terminal for a period of 180 days or more. Notices via email from Bold Penguin will be sent to you at the email address you have provided to us, which you are responsible to keep updated.
4.2 Your Services Data Portability and Deletion. After the effective date of termination of these Supplemental Terms, we will have no obligation to maintain or provide your data, and may, in our sole discretion, delete or destroy all copies of your data in our systems or otherwise in our possession or control, unless legally prohibited.
5.1. Modification of Supplemental Terms. Bold Penguin may modify or update these Supplemental Terms at any time. In the event Bold Penguin determines it is necessary to make a material modification to these Supplemental Terms, you will be notified of such change and may be asked to affirmatively agree to such modified version. Note, however, that your use of the Terminal after modifications to the Supplemental Terms take effect constitutes your binding acceptance of such changes. You may review the most current version of these Supplemental Terms here.
5.2 Exclusive Remedy. If you are dissatisfied with the terms of these Supplemental Terms or any modifications to them or the Terminal, you agree that your sole and exclusive remedy is to terminate your Terminal subscription and discontinue use of the Terminal.
6.1 Terminal License. During the Term, Bold Penguin grants you a limited, revocable, non-transferable, non-sublicensable, non-exclusive right to access and use the hosted software products and related documentation included in the Terminal and all modifications and/or enhancements to any of the foregoing (collectively, the “Software”) via a web browser or other device owned or controlled by you for your internal business use. Nothing in this Agreement obligates Bold Penguin to deliver or make available any copies of computer programs or code from the Software to you, whether in object code or source code form. You agree to use the Terminal only in compliance with these Supplemental Terms and all applicable local, state, national, and international laws, rules and regulations (“Applicable Law”).
6.2 Permitted Users. You agree that only authorized users may access your Terminal subscription and that each user must be a named individual and have unique credentials. You understand and agree that multiple users are not permitted to utilize the same credentials, and you agree to assign a unique username and password to each authorized user on your account. You may add additional named users (seat licenses) through the Terminal, in addition those included with your paid Licensing Fee (Monthly or Annual). Bold Penguin will grant immediate access to seat licenses that you add (“Added Seat Licenses”) during any given month, and you authorize us to charge the cost for any Added Seat License(s) to your Payment Method on File on your next Monthly Due Date (for Monthly Pay Option) or within two (2) business days of the date you requested the Added Seat Licenses (for Annual Pay Option), each Option as defined in Section 2.2, above, which will be prorated through the end of your then-current Annual Term, as applicable. Any Added Seat License may not be removed until expiration of the then-current Monthly or Annual Term, as applicable to your subscription.
6.3 Terminal Availability. The Terminal will be available 99.9% of the time, excluding the Scheduled Maintenance Windows (“Service Windows”) as measured monthly (“Availability SLA”). All such Service Windows will be scheduled during the hours of 12:00 a.m. to 6:00 a.m. Monday through Sunday, Eastern Time and shall not exceed eight (8) hours per month. Any unavailability caused by circumstances beyond Bold Penguin’s reasonable control, including, but not limited to, acts of God, acts of government, floods, fires, earthquakes, pandemics, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), internet Terminal provider failures or delays, or as necessary to update the Terminal to ensure its security and integrity shall not constitute “unavailability” pursuant to this Section 6.3, and (c) provide the Terminal only in accordance with Applicable Law. Bold Penguin’s hours for basic support are 8:00 a.m. to 6:00 p.m., Eastern Time, on weekdays, in the English language via telephone and email.
6.4 Security Safeguards. Bold Penguin shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the Terminal, and the security of your data. Bold Penguin shall not (a) disclose your data except as compelled by Applicable Law or as you expressly authorize in writing, or (b) access your data except to provide the Terminal and prevent or address Terminal or technical problems, or at your express request in connection with customer support matters. In the event Bold Penguin is compelled by Applicable Law to disclose your data, we will provide you with notice thereof, (in advance, if possible) if permitted by Applicable Law.
6.5 Your Responsibility. You are solely responsible for your data, and all uses of your data that occur through your account.
6.6 API Integration. If you integrate with Bold Penguin using our API, you must use efficient programming, which will not cause an excessive number of requests to be made in too a short period of time, as-determined solely by Bold Penguin. If this occurs Bold Penguin reserves the right to throttle your API connections or suspend or terminate your Bold Penguin account.