Terms of Service

Updated on: 2021-Dec-23
Version: 1.3

1. Introduction

1.1 EqualTo GmbH (“EqualTo”) provides employee incentivization Software-as-as-Service product (“Software”) for the purpose of employee performance management, employee incentivization and automating other business processes. A business can subscribe to the Software, subject to these Terms of Service, thereby becoming a customer of EqualTo.

1.2 By accepting these Terms of Service (“ToS”) or by accessing or using Software or related services provided by EqualTo, you acknowledge and agree to these ToS and our Privacy Policy (hosted on https://www.equalto.com/privacy-policy).

1.3 Presuming you are agreeing to these Terms of Service on behalf of a company, business or other legal entity, you represent and warrant that you have the authority to bind such entity and its affiliates to these ToS.

1.4 You may not use the Software if you are a competitor of EqualTo GmbH. In particular, if you are an employee, freelancer agent or a representative of a business entity providing employee incentive software, sales incentivisation software, or related services, you may not use the Software.

2. Definitions

2.1 “EqualTo” means EqualTo GmbH, with address Urbanstr. 71 10967 Berlin, Germany .

2.2 “Software” means the employee incentivization Software-as-a-Service provided by EqualTo and available on https://app.equalto.com or a customer-specific subdomain.

2.3 “ToS” means this Terms of Service document.

2.4 “Privacy Policy” means the privacy policy hosted on https://www.equalto.com/privacy-policy.

2.5 “Services” means the Software and related services (including but not limited to: customer success, support, onboarding services).

2.6 “User” is an employee / contractor of Customer who has a user account on the Software.

2.7 “Result” is an individual achievement for which an incentive payment may be due. An example Result would be the closed opportunity.

2.8 “Reward” is the incentive payment calculated by the Software for an individual Result.

2.9 “Account Balance” is the total amount that a User is entitled to be paid according to the incentive plans they participate in.

2.10 “Customer” is the business customer who is using Software according to these ToS.

2.11 “Superuser” is a User that has been identified by Customer as having unrestricted access to the Customer’s data in the Software. A Customer must have at least one Superuser.

2.12 “Documentation” is the documentation hosted on https://support.equalto.com/hc/en-us which describes the behavior of the Software.

2.13 “Order” is an order form contract signed between the Customer and EqualTo that references these ToS and describes the Services to be provided by EqualTo to the Customer.

2.14 “Customer Data” is the data, materials, content, spreadsheets, software incentive plans or other information provided by Customer to EqualTo, whether by email, post, uploading into the Software or interaction with our Services or Personnel. Such Customer Data may be provided by Customer employees, contractors, or other individuals or companies operating on Customer’s behalf.

2.15 “Party” is either EqualTo or Customer, collectively “Parties”.

2.16 “Subscription” means the right to use the Services for a given duration of time, as outlined in an associated Order.

2.17 “Subscription Period” is the period from the Subscription start date to the Subscription end date for which the Customer has a license to use the Services, as specified in the Order.

2.18 “Subscription Tier” is specified in the Order.

2.19 “Personnel” are the employees, freelancers and agents of a Party.

Note that these ToS may use the above terms in both singular and plural form where appropriate.

3. Descriptions of services

3.1 The Software is accessible from https://app.equalto.com and includes the following capabilities:

  • Incentive plan modelling: create and maintain employee incentive plans.
  • Deploy plans: Deploy employee incentive plans to Users.
  • Approval process for Results: Review and approve individual Results for payout to Users.
  • Payroll process: Pay to Users their entitlements (typically, their respective Account Balances), exporting Customer’s data from the Software to Customer’s payroll system.

3.2 A User can avail of EqualTo support by sending an email to support@equalto.com. EqualTo commits to the support and service levels described in section 4.

3.3 A User can access Software documentation on https://support.equalto.com/hc/en-us. A separate user name and password are required, and can be obtained by contacting support@equalto.com.

3.4 EqualTo may provide onboarding services and customer success services to the Customer.

3.5 EqualTo may enter into a signed statement of work (“SOW”) with the Customer describing the configuration, implementation, onboarding, consulting, software customization or testing services provided by EqualTo to the Customer. EqualTo will provide such services in accordance with the terms outlined in the SOW. EqualTo will have no obligation to perform any services not specified in the SOW.

3.6 EqualTo may modify the Services at any time without notice. Where such changes may have an impact on Customer’s use of our Services (with the exception of changes that provide new capabilities to our Services) EqualTo will notify Customer’s Superusers in advance, presuming they have opted-in to such notifications on our platform.

4. Support and service levels

4.1 The Support and Service Levels and conditions, which are an integral part of these ToS, are defined in the following document: https://www.equalto.com/sla

5. Rights of use, restrictions

5.1 Subject to Customer’s compliance with these ToS, as well as any payment obligations that Customer may have to EqualTo, EqualTo grants to the Customer the right to use the Software for the subscription duration outlined in the associated Order. This right to use the Software is non-transferable, non-exclusive, non-sublicensable, revocable and for internal purposes only.

5.2 Customer will not (nor allow any third party to):

  • reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services;
  • modify, translate, or create derivative works based on the Service;
  • copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service;
  • use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party (excepting Users);
  • use the Services for competitive research or for scoping, benchmarking, developing or providing any similar or competitive product or services;
  • remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof,
  • use the Service to create any other product or service; or
  • use the Service in violation of any applicable laws or regulations (including any export laws, restrictions, national security controls and regulations).

5.3 The Customer will use the Services only in compliance with:

  • the Order,
  • the rights granted hereunder, and
  • in accordance with all applicable laws and regulations.

5.4 Each User will have a unique user account on the Services. Users will not share their user accounts with other users, and will maintain only a single concurrent login session. Customer is responsible for ensuring that their Personnel access the Services in a manner compliant with these ToS.

5.5 You will notify EqualTo promptly of any unauthorized use of any password or account or any other known or suspected breach of security or misuse of the Services. Customer is responsible for use of the Services by Customer’s Personnel.

5.6 You will not (and will not allow any third party to) use the Services to email or otherwise upload any content that:

  • infringes or misappropriates any intellectual property or other proprietary or privacy rights of any party;
  • you do not have a right to upload under any law or under contractual or fiduciary relationships;
  • contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
  • is unlawful, harmful, or otherwise objectionable;
  • in the reasonable judgment of EqualTo, may expose EqualTo or its users to any material harm or liability of any type.

6. Intellectual Property Rights

6.1 EqualTo owns all rights, title, and interest, including but not restricted to any intellectual property, including any invention or discovery (whether patentable or not), copyright, design right or confidential know-how in and to (i) the Software; (ii) its further development, as conceived, produced or reduced to practice during the course of providing the Software; (iii) all documents, data and other records relating to the Software, and (iv) any ideas, suggestions, enhancement requests, recommendations or other feedback related to the Software provided by Customer to the EqualTo.

6.2 EqualTo’s name, logo, trade names and trademarks are owned by EqualTo, and no right is granted to Customer to use any of the foregoing except as expressly permitted herein.

7. Indemnification

7.1 Customer will indemnify, defend and hold harmless EqualTo and EqualTo’s directors, officers, employees, agents, contractors, end users and licensees from and against any claims, losses, costs, expenses (including reasonable attorneys’ fees), damages or liabilities based on or arising from Customer’s breach or alleged breach of these ToS. EqualTo may at its own expense participate in the defense and settlement of any claim with its own counsel, and you may not settle a claim without EqualTo’s prior written consent (not to be unreasonably withheld).

8. Customer data

8.1 Customer Data remains the property of the Customer. You hereby grant EqualTo a worldwide, limited, revocable, non-exclusive right and license to use and reproduce the Customer Data solely for the purposes of providing the Services to you, and for performing analysis as described below.

8.2 EqualTo may perform analysis of Customer’s use of the Services and Customer Data. Where applicable such analysis will be anonymized. Such analysis will solely be for improving the Services provided by EqualTo.

8.3 The Customer is responsible for the behavior of users Users when accessing the Services. In particular, the Customer is responsible for the deletion of Customer Data by Users.

8.4 The Customer is solely responsible for the accuracy, content, legality, integrity and/or correctness of Customer Data. The Customer agrees that EqualTo has no obligation to monitor Customer Data, and that EqualTo is not responsible for the accuracy, content, integrity, legality and/or correctness of Customer Data.

9. Limitation Of Liability

9.1 Any claims for damages of the Customer against EqualTo, its legal representatives or agents shall be excluded.

9.2 In deviation from 9.1, any claims of the Customer against EqualTo, its legal representatives or agents due to a negligent breach of a material contractual obligation shall be limited in terms of the amount to the damages typical for the contract and foreseeable at the time of entering into the contract. Material contractual obligations are any duties that the contract must guarantee in terms of its content and purpose, especially those duties, which are a prerequisite for the proper performance of the contract and therefore the observance of which the respective other contractual partner relies on or is entitled to rely on.

9.3 The exclusion of liability according to section 9.1. and the limitation of liability according to section 9.2. shall not apply for  

  • claims under the German Product Liability Act,
  • claims due to injury to life, body or health, which arise from a negligent breach of duty on the part of EqualTo, its legal representatives or vicarious agents,
  • claims due to damages, which arise from a grossly negligent breach of duty on the part of EqualTo, its legal representatives or vicarious agents.

9.4 The exclusion of liability according to section 9.1, and the limitation of liability according to section 9.2, shall not apply for the benefit of any insurers of EqualTo.

10. Confidentiality

10.1 Information that one Party (the “Disclosing Party”) provides the other Party (“Receiving Party”) with during the term of the Subscription that is identified in writing at the time of disclosure as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure shall be deemed to be confidential (“Confidential Information”). For the sake of clarification, the Software is considered Confidential Information. Access to the Confidential Information shall be restricted by the Receiving Party to its Personnel. The Receiving Party shall ensure that it has written agreements in place that bind its Personnel with confidentiality conditions equal or more strict than those in this section. The Receiving Party will not, and will ensure that its officers, employees and agents will not, without the Disclosing Party’s prior written consent (i) disclose to any third party and/or (ii) use in any way other than for the purpose of carrying out a Subscription or Order, any Confidential Information. The above obligations of confidentiality will not apply to the extent that the Receiving Party can prove that the relevant Confidential Information:

  • was already lawfully in Receiving Party’s possession free from any obligation of confidentiality at the time of receipt;
  • is, at the time of the disclosure, public knowledge through no act or omission of Receiving Party or its officers, employees or agents; or
  • was lawfully obtained from a third party having the right to disclose it free from any obligation of confidentiality; or
  • is required to be disclosed by any applicable laws, but Receiving Party shall notify

Disclosing Party forthwith any such required disclosure and the Disclosing Party shall ensure that the Confidential Information will only be disclosed to the extent absolutely necessary. The obligations in this section shall remain binding for a period of ten (10) years after the effective date of the termination or expiration of the relevant Subscription and/or Order.

11. Payments

11.1 The Customer will be required to select a payment plan and provide EqualTo necessary information regarding their payment instrument (credit card or other means) accepted by EqualTo. The Customer will pay EqualTo the fees for the Service set forth in the Order, and will pay all invoices within 30 days of the invoice date. The Customer agrees to pay and hereby authorize EqualTo to bill their payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until they terminate their account in accordance with these ToS. All charges are final, non-cancelable, and nonrefundable, provided that if EqualTo terminates the Customer’s account on the Services without cause or if Customer terminates their account on the Services with cause, they will be entitled to a prorated refund of prepaid amounts.

11.2 The Customer represents and warrants to EqualTo that the information regarding their payment instrument is, and will be maintained as, true, complete, accurate, and up to date, and that you are authorized to use such payment instrument.

11.3 The fees paid by the Customer are exclusive of all taxes, levies, or duties imposed by relevant taxing authorities, if any, and the Customer will be responsible for payment of all such taxes, levies, or duties, excluding taxes based on EqualTo’s income.

11.4 If and as long as Customer is in default of any contractual fees or expenses, EqualTo is entitled to suspend Customer’s access to the Services for the time of the payment default. Before such suspension, EqualTo shall notify Customer Superusers of its intention and set a deadline of two weeks to remedy the default.

11.5 If EqualTo believes in good faith that the Customer’s usage of the Services exceeds that set forth on the applicable Order, the Customer agrees to allow EqualTo to audit their use of the Services at any time to determine the actual use of any and all Services.

11.6 EqualTo is entitled to adjust the fees set forth in the Order during the term of these ToS, particularly to increase them. However, such changes shall have no effect on any current Subscriptions and Orders and shall only be valid for future (pursuant to section 12.1) Orders and subscription renewals.

12. Term Of Subscription, Consequence Of Termination

12.1 These ToS shall be effective for the duration of all Subscription Periods of relevant Orders.

12.2 The Customer may access the Software during the Subscription Period as set out in the applicable Order. The ordinary termination of or the withdrawal from Subscriptions and Order is excluded.

12.3 Both Parties right to extraordinarily terminate these ToS, any Subscription and/or Order for good cause shall remain unaffected.

12.4 Any Order must be terminated separately and expressly. The termination of a particular Subscription or Order shall not affect these ToS and any other Subscriptions and Orders.

12.5 In case of the termination of a Subscription or Order, any rights of use granted to Customer for the Services shall expire immediately and Customer shall cease to use the Software.

12.6 In case of the effective termination of a Subscription or Order, which has not been caused by the infringement of a contract duty of Customer, EqualTo will refund any pre-paid fees to Customer prorata for the remaining time of the Subscription Period or Order, as applicable. In all other cases the Customer cannot claim any refunds.

13. Assignment Of The Tos, Subscriptions, And Orders

13.1 Unless otherwise permitted in these ToS or related Orders, the Customer may not assign any of its claims or rights under these ToS, a Subscription or an Order or the entire Subscription or Order without the prior written consent of EqualTo.

14. Third-party Services

14.1 The Services enable linking between various online third-party services such as third party email, cloud storage, CRM, Salesforce, Hubspot, Pipedrive, Slack and similar services (“Third-Party Services”). To take advantage of these features and capabilities, the Customer may be required to authenticate, register for or log into Third-Party Services through the Service or on the websites of their respective providers. By linking a Customer account on the Service to a Customer account on a Third Party Service, the Customer is authorizing EqualTo as their agent to access their Third Party Service account (and any information, content, materials, and features included therein) and use such Third Party Service on their behalf for the purpose of integrating their experience on the Service with such Third Party Service. Customer’s use of the Third Party Services is governed solely by the agreement between you and the provider of such Third Party Service, and the Third Party Services provider is solely responsible for such Third Party Service.

14.2 Customer acknowledges and agrees that EqualTo will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such Third Party Services.

15. Security

15.1 For the avoidance of doubt, EqualTo has the right, but not the obligation, to monitor the Services. EqualTo will do so if required by law or in the good faith belief that such action is to protect EqualTo, the Services, or any Users.

15.2 EqualTo will:

  • maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of Customer Data; and
  • notify the relevant Customer within two (2) days of becoming aware of any unauthorized access to Customer Data.

16. Force majeure

16.1 Neither party will be liable for any loss or damage resulting from its failure or delay in performing its obligations under these ToS to the extent that such failure or delay arises from circumstances beyond its control, including by reason of fire, earthquake, labor dispute, act of God or public enemy or any local, state, federal, national or international law, governmental order or regulation or any event beyond the control of such party (“Force Majeure”).

16.2 EqualTo shall have the right to suspend the access to the Services hereunder during all periods that the duly execution of a Subscription or Order is prevented, hampered or interrupted by reason of Force Majeure. EqualTo shall inform the Customer without undue delay of such suspension and the expected suspension period.

17. Publicity

17.1 Neither Party shall issue any press release in connection with these ToS or the Services without the prior written consent of the other Party. EqualTo is permitted to add Customer and its logo as a reference to the list of customers featured on EqualTo’s website.

18. Third Party Software Licenses

18.1 The Software includes various third-party software components. Certain third-party software components require a notice be provided to users of their inclusion, such notices have been listed here: https://www.equalto.com/third-party-software-notices.

19. Final provisions

19.1 These ToS and the relevant Orders are the entire agreement between the parties relating to the subject matter hereof and supersedes all prior agreements between the parties relating to the subject matter hereof. In the event of a conflict between the body of these ToS and its schedules with any Order, the body of these ToS and its schedules shall govern. In the event of a conflict between the body of an Order and any attachment thereto, the body of the Order shall govern.

19.2 If any clause or any part of these ToS or the application thereof to either party shall for any reason be adjudged by any court or other legal authority of competent jurisdiction to be invalid, illegal or unenforceable in any respect such judgement shall not affect the remainder of these ToS, which shall continue in full force and effect.

19.3 No failure to exercise, nor any delay in exercising, by the Parties, any right or remedy under any these ToS, Subscription and/or Order shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise, or the exercise of any other right or remedy. The rights and remedies provided are cumulative and not exclusive of any rights or remedies provided by law.

19.4 Any affiliate of Customer may enter into an Order under these ToS and shall be deemed to be “Customer” as used in these ToS. The Customer shall remain responsible for the conduct of its affiliate in compliance with these ToS. Any affiliate of EqualTo may enter into an Order under these ToS and shall be deemed to be “EqualTo” as used in these ToS and shall solely be responsible for its conduct in compliance with these ToS.

19.5 EqualTo shall not be liable or responsible for any ToS, Subscription and/or Order that Customer concludes with such affiliate. “Affiliate” shall mean any corporation or other business entity Controlled by, Controlling or under common Control with the respective party hereto. “Control” shall mean the direct or indirect ownership of more than fifty percent (50%) of the equity interest in or voting rights of such corporation or business entity, or the ability in fact to control the management decisions of such corporation or business entity.

19.6 Governing Law, Jurisdiction: These ToS, any Subscription and/or Order shall be governed by German law, without giving effect to conflict of law principles and/or the United Nations Convention on Contracts for the International Sale of Goods (CISG). The Parties agree that the exclusive place of jurisdiction for all disputes arising out of or in connection with these ToS and/or Orders shall be Berlin, Germany.