We're excited we've gotten this far!
We are excited to potentially partner with you to completely reimagine your content creation process. At Foleon, we understand the importance of being easy to do business with — it is one of our core tenets as an organization. We created this brief guide to provide a sense of what we expect from our prospective customers and to describe the process that will get us to partnership the fastest.
Foleon provides our content experience platform* as a Software as a Service (SaaS) platform. As a SaaS vendor, we operate the same platform across our entire customer base, so our commercial offer is based on our customers accepting our Standard Terms of Service.
*Do you represent legal or procurement?
Head to "Foleon for Legal & Procurement" to get an understanding of what Foleon is and isn't, which should help to explain our terms, liability levels/caps, and indemnification clauses to non-business stakeholders.
Why Foleon includes this Document
Within Foleon's Grow, Scale, and Team plans price structure, we're not able to make many changes to our standard customer terms. If you consider standard market SaaS terms, and the overhead of creating and managing individual agreements with each of our customers, you can understand our position. Maintaining standard terms with all of our customers allows us to focus our resources on meeting our obligations under these agreements. It is worth mentioning that our customer terms have been meticulously authored to be fair to both you and us, once again, in the spirit of being easy to do business with.
We have limited the amendments that can be made under the Grow, Scale, and Team agreements to terms our commercial leaders can accept. This is done in order to get your team to value quickly and avoid this agreement getting stuck in the review abyss.
Below, we have listed the specific terms that may be amended:
- Auto-renewal
- Term of Subscription Agreement
- Payment Terms
- Publicity*
Customers at Large Enterprises
We understand that some organizations have, over time, developed very rigid procurement processes which require specific terms to be used for all agreements, or that agreements are made on their MSA.
The only package which supports Custom Terms or the use of the Customer's MSA is our Enterprise package, designed for large organizations with rigid support, governance, and procuring policies.
It is worth noting, that where customers prefer we use their MSA, we do ask that a legal representative be made available for a call to ensure no time is wasted trying to interpret the intent of our Terms of Use (which must still be appended to any Customer MSA) or your MSA, which will inherently be foreign to Foleon's legal team.
Showstoppers
While we do pride ourselves on being easy to do business with, like any organization, there are a number of non-negotiables that are worth us discussing up front:
- Term for convenience/non-cause — The only circumstance where Foleon will accept this clause is where the Customer will not be entitled to a refund of any pre-paid fees, and all fees for the then-current Subscription Term have already been paid.
- Data Processing Agreement (DPA) — If you are processing Personal Information (broadly defined) you must execute and comply with our standard Data Protection Agreement.
Foleon for Legal & Procurement
Foleon is a content creation platform that allows your business users to create truly engaging content at scale, with built-in intelligence to help your business users understand how your visitors are engaging with your content. Our platform features out-of-the-box integrations with web analytics, marketing automation, and CRM platforms that allow your business users to collect both anonymous user data and, where they intend to, embed forms that allow them to understand who is engaging with their content, and to pass engagement metrics back to the system of record (the CRM or Marketing Automation platform).
What we are not is a CRM, ERP, or Data cloud platform for the storage and processing of mass amounts of PII or other highly regulated data. Terms you might expect or use for those types of platforms will, in most cases, not apply here.
What does this all mean? We provide a vessel for your business users to completely transform the content experience of your customers, but that also means your organization is in control of what content goes into the platform that we provide you, making you the controller of both the content and the data that might pass through. This has implications for how our agreement (or the agreement of any similar platform) is structured, and we've detailed those points below:
Indemnification:
Indemnity is part of the fundamental allocation of risk between the parties in our contract.
We offer an unlimited IP indemnity to all our customers (16.1), and in return, we expect our customers to provide us with third-party indemnity. Our technology helps your business users create and publish content, but you are in control of how you use our technology and what is published. By requiring this indemnity, we are asking you to stand behind your use of our technology to create content that does not breach third-party rights or our acceptable use policy, because we cannot control either of these factors (similar to how you cannot control our use of IP, which is why we offer that indemnity).
The indemnification from you is a requirement for us (and we require the same indemnity from all of our customers) because you are in the driver's seat with regard to how you use the Foleon Service. Our technology allows you to create and publish content and as you are in control of the content that is created and published, you are also in control of the risk exposure under this indemnity, not Foleon.
We require your indemnity to be broader than Foleon's Indemnity because of the difference in control. Foleon controls how the service is developed and improved (and we take responsibility for this) and you are in control of the use of the service itself.
We will not agree to the removal of third-party claims resulting from Customer Data or Customer Obligations in 16.2. For these reasons, agreeing to mutual indemnification is not an agreeable compromise.
Limitation of Liability
Except for Excluded Claims (outlined in our Terms), each party's (and its suppliers') entire liability arising out of or related to this Agreement will not exceed in aggregate the amounts paid or payable by Customer to Foleon during the prior 12 months under this Agreement.
We will also not accept the following:
- capped liability for your indemnity toward us
- uncapped liability for the Data Protection Agreement
- Liability for damage or loss caused by hacking by third parties or viruses and malware, provided we've taken reasonable efforts and abided by our own documented security practices
- Liability for indirect or consequential damages
- Liability for Third-Party Products
That's all!
Thanks for making it all the way through; we hope this has given you all the context you need on our agreement. If you have questions, of course, please feel free to contact your Account Executive.
