Software as a Service (“SaaS”) Agreement
THIS SOFTWARE AS A SERVICE AGREEMENT (“AGREEMENT”) SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH DYNAMIC SIGNAL, INC. (“DYNAMIC SIGNAL,” “COMPANY,” OR “WE”), GRANTS TO YOU (“YOU” OR “CUSTOMER”) THE RIGHT TO USE THE DYNAMIC SIGNAL CLOUD-BASED PRODUCTS AND SERVICES ORDERED AND PAID FOR BY YOU (THE “SERVICE”). BY SIGNING AN ORDER FORM, ACCESSING, RECEIVING, AND/OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IN NO EVENT MAY YOU ACCESS, RECEIVE OR OTHERWISE USE ANY DYNAMIC SIGNAL PRODUCT OR SERVICE WITHOUT AGREEING TO THESE TERMS (OR ANOTHER AGREEMENT AGREED TO IN WRITING BY DYNAMIC SIGNAL).
- Unless otherwise expressly stated herein, the terms defined in this Section, or parenthetically defined elsewhere, shall have the same meaning throughout this Agreement, and any and all Order Forms, SOWs, attachments and amendments hereto.
- “Agreement” means this Agreement together with all Order Forms and any SOWs incorporated herein by reference.
- “API” means application programming interface.
- “Change in Control” means a merger, acquisition, stock sale, corporate reorganization, sale of all or substantially all of assets or similar change of control transaction.
- “Company Technology” means Company’s products, technology tools, product designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, trade secret, know-how, methodology, platforms, apps, application programming interface (“API”), and any other tools or programs used by or for Company on its behalf with regard to its Service, and any related IP Rights related thereto throughout the world and also including any derivatives, improvements, translations, enhancements or extensions of or to the foregoing. Company Technology excludes Customer Data and Customer Property.
- “Customer Data” means all data or information transmitted or generated by Customer through use of the Service, including without limitation, Customer’s posts on the platform, Users’ social media posts, comments and contacts. Customer Data also includes email and names of Customer’s Users.
- “Customer Property” means Customer’s proprietary property, including Customer’s Internet operations design, content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation, trade secrets, copy, images, logos, trademarks and any related IP Rights throughout the world, in each case, which is specific or unique to Customer and which is provided to Company for purposes of the Service.
- “Data Breach” means unauthorized acquisition of Personal Data provided by the Customer that compromises the security, confidentiality, or integrity of personal information maintained by the Company. Where the Personal Data so acquired includes EU Personal Data, the term “Data Breach” shall have the same meaning as in the GDPR.
- “EEA” means the European Economic Area (including the United Kingdom).
- “EU Data Protection Law” means Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (as amended, replaced or superseded).
- “GDPR” means the EU General Data Protection Regulation (Regulation (EU) 2016/679).
- “Initial Term” means the initial Service Term for the Service as described in the Order Form in which the Service is first ordered by Customer.
- “IP Rights” or “Intellectual Property Rights” means all intellectual property rights comprising or relating to patents; trademarks, tradenames, internet domain names, whether or not trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website and URLs; works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, data, data files, and databases and other specifications and documentation; trade secrets; and all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the laws of any jurisdiction throughout in any part of the world.
- “Order Form” means any document used for the order of the Service agreed to in writing by the parties and made a part of this Agreement, specifying, among other things, the specific services, fees, Usage Limits, Service Term and other charges as agreed to between the parties.
- “Party” means each of Customer and Company, and collectively the “Parties”.
- “Renewal Term” means the Service Term for any renewal of the Service as described in an Order Form.
- “Sensitive Data” means (a) social security number, passport number, driver’s license number, birthdate, or similar identifier (or any portion thereof); (b) information regarding a person’s race, religious or political affiliation, trade union membership, or sexual life or sexual orientation; (c) genetic, biometric, health, or any Protected Health Information of any person as defined under Health Insurance Portability and Accountability Act, as amended; (d) credit or debit card number, credit information, financial account or other financial information of a person; personally identifiable or confidential information of Customer’s customers (including any financial, credit card, account information or Sensitive Data of such customers), including any “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, as amended, or other information subject to any banking or financial law or regulation control; (e) any data subject to the U.S. International Traffic in Arms Regulations (ITAR), U.S. Export Administration Regulations (EAR) or other export control laws or regulations; (f) any information that falls within the definition of “special categories of data” under EU Data Protection Law; and/or (g) any other information that requires safeguarding, handling or distribution controls under any applicable law or regulation.
- “Service” means the cloud-based service(s) offered by Company that are specifically ordered by and paid for by Customer. A service must be specifically ordered by Customer under an Order Form to be considered a “Service” covered under this Agreement.
- “Service Level Agreement” or “SLA” means the Company’s SLA set forth at https://dynamicsignal.com/sla/.
- “Service Term” means the time period, whether Initial Term or Renewal Term, during which Company agrees to provide to Customer, and Customer is permitted to use, the Service as specified in an Order Form.
- “Support Services” means other services ancillary to the SaaS subscription that are described and paid for via a mutually agreed Order Form.
- “Territory” means the geographic region within which the Service may be used and where Users may be located, as specified in the Order Form. (If a Territory is not specified in the Order Form, then Territory shall be the United States.)
- “Usage Limits” means the specific number and type of Users, licenses and license configurations specifically ordered and paid for by Customer as set forth in the applicable Order Form.
- “Users” means Customer’s employees, agents, and contractors who have been authorized or enabled (including registered and pre-registered), directly or indirectly, by Customer to use the Service in accordance with the Usage Limits.
- The terms, “Controller”, “Data Subject”, “Processor”, “Personal Data”, and “Processing” shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
Usage Rights, Restrictions and Guidelines
- Service Usage Grant. Subject to this Agreement, Company grants to Customer a limited, nonexclusive right, solely during the Service Term and within the Territory, to use the Service (including any Company Technology and documentation specifically made available by Company for use with the Service) in accordance with the Usage Limits. Customer shall have no right to use the Company Technology for any purpose other than accessing and using the Service in accordance with this Agreement. Customer shall be permitted to designate the Users of the Service, provided that such usage is in accordance with this Agreement and the Usage Limits, and Customer shall be responsible for the acts of the Users (including breaches of this Agreement caused by the Users).
- Usage Limits. In the event Customer exceeds its Usage Limits, Customer will incur and be billed for additional fees for such excess usage; provided that if excess or additional use fees are not specified in the Order Form, such excess use fees shall be determined on a pro-rated basis against the fees set forth in the Order Form. Except as otherwise agreed upon in writing, Customer may not decrease it Usage Limits within any Service Term.
- Service Restrictions and Guidelines.
- Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code, trade secrets, or know-how in or underlying the Service or Company Technology.
- Customer shall use the Service solely for its internal businesses purposes as contemplated by this Agreement, the applicable Order Form, and all applicable laws and regulations.
- Customer shall not: (i) distribute, rent, lease, sublicense or transfer the Services, (ii) use the Service in a service bureau, outsourcing or time-sharing environment, or otherwise commercially exploit the Service; (iii) use the Service to send spam or any other form of duplicative and unsolicited messages other than marketing and promotional messages to Customer’s customers and prospective customers as contemplated by the Service; (iv) harvest, collect, gather, or assemble information or data regarding other users of the Service without their consent; (v) transmit through or post on the Service unlawful, immoral, libelous, tortious, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors; (vi) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs through the Service; (vii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (viii) attempt to gain unauthorized access to the Service, computer systems, or networks related to the Service; (ix) use the Service for any competitive benchmarking purposes; or (x) harass or interfere with another user’s use of the Service.
- Customer warrants that it has, and will continue to have through the Service Term, the right to transfer, and/or provide access to, the Customer Data to Company for processing in accordance with the terms of the Agreement and all applicable laws. Without limiting the foregoing, to the extent Customer elects to integrate any third-party products or services with the Service, then Customer warrants that it has, and will continue to have through the Service Term, all rights to enable and permit the transfer of and access to Customer Data between the Service and such third-party products or services.
- Customer acknowledges and agrees that the Service is not intended for use or transmission of any Sensitive Data. Company will have no liability whatsoever for Sensitive Data Customer places on the Service and to the extent Customer uses the Service for the transmission, storage, or communication of any Sensitive Data, it does so entirely at its own risk.
- Customer shall be fully responsible for the acts of its Users and ensuring that its Users abide by the Service usage restrictions and guidelines, including breaches of this Agreement. In addition, Customer shall be responsible for all communications with and the handling of support and other inquiries by its Users.
- Company will make commercially reasonable efforts to make the Service available to Customer in accordance with the Service Level Agreement, , and will make updates or enhancements to the Service from time to time.
- Company will provide the Support Services ordered by Customer and described on the applicable Order Form. Customer agrees that all Support Services will be coordinated through Customer’s system administrator(s), and that Company shall not have any obligation to handle inquiries or requests directly from Users.
- Company will use commercially reasonable efforts to maintain the security of the Service. Company will take commercially reasonable precautions, including the use of industry standard virus protection software and other customary procedures, to screen any software used by it in implementing and operating the Service, platform and websites, and to avoid introducing, and it will not knowingly insert, or knowingly allow to be inserted, any Disabling Devices into any software or platforms used by it in providing the Service hereunder. For purposes of this Agreement, “Disabling Device” means any malware or other computer code (i) designed to disrupt, disable, harm, or otherwise impede in any manner the operation of any software program or code, or any computer system or network (commonly referred to as “malware”, “spyware”, “viruses” or “worms”); (ii) that would disable or impair the operation thereof or of any software, computer system or network in any way based on the elapsing of a period of time or the advancement to a particular date or other numeral (referred to as “time bombs”, “time locks”, or “drop dead” devices); or (iii) is designed to or could reasonably be used to permit any third party to access any computer system or network (referred to as “trojans”, “traps”, “access codes” or “trap door” devices).
- Company will provide Customer the ability to obtain extracts of Customer Data as available through API endpoints and report download functionalities within the platform.
- As between Customer and Company, all rights, title and interest in all Customer Data and Customer Property, including any and all IP Rights therein, are the sole property of Customer, and except as expressly provided for in this Agreement, no rights are granted to Company in Customer Data or Customer Property.
- All rights, title and interest in the Service and all Company Technology, including any and all IP Rights related thereto, are the sole property of Company or its licensors. All rights in and to the Service or Company Technology not expressly granted to Customer in this Agreement are hereby reserved by Company and its licensors.
- Limited Right to Host Customer Data and Property. Customer acknowledges and agrees solely in connection with Company’s provision of the Service, Company is hereby granted a limited, revocable, nonexclusive, internal, and royalty-free license, solely during the Service Term to host and maintain Customer Data and Customer Property for the strict limited purposes of delivering the Service to Customer and supporting Customer’s use of the Service as described herein. (By way of example, Company is permitted to store, maintain and display within Customer’s Service platform any logos provided by Customer to ‘brand’ Customer’s instance of the Service platform.)
- Suggestions; Feedback; Anonymized Data. Company shall have the right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer relating to the Service to the extent it does not include Customer Data or Customer Property. Company may gather statistical data, analytics, trends and other aggregated or otherwise de-identified data derived from Customer and its Users’ use of the Service provided that such data does not allow Customer Data to be separated from the aggregated data and identified as relating to Customer or its Users (“Anonymized Data”), and Company may use this Anonymized Data to analyze and understand how the Service is used.
Security and Transfer of Customer Data
- For purposes of this Agreement, Company operates as the Processor under the direction of the Customer, who operates as the Controller. Customer has full control and discretion of its Personal Data to submit to Company. Company shall process any Personal Data for the purposes described above in accordance with Customer’s instructions as described in the Agreement or as agreed in writing to provide the Service. Notwithstanding the foregoing, the Agreement sets out Customer’s complete instructions to Company in relation to the processing of the Personal Data and any processing required outside of the scope of these instructions will require prior written agreement between the Parties. Customer shall ensure that its instructions comply with all laws, regulations and rules applicable to the Customer Data, and that Company’s processing of the Customer Data in accordance with Customer’s instructions will not cause Company to violate any applicable law, regulation or rule, including EU Data Protection Law. Company shall not access or use Customer Data, except as necessary to maintain or provide the Service, or as necessary to comply with the law, regulation, rule, or other binding governmental order.
- Company will implement and maintain appropriate technical and organizational measures to ensure a level of security appropriate to the Personal Data under this Agreement, including, as appropriate, the measures referred to in Article 32(1) of the GDPR. Taking into account costs of implementation, the nature, scope, context and purposes of Processing, and any potential risks to the rights and freedoms of natural persons, these measures include: (a) the encryption of Personal Data; (b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; (c) the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; and (d) a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the Processing of Personal Data. In assessing the appropriate level of security, Company shall take into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing of Personal Data as well as the risk of varying likelihood and severity for the rights and freedoms of Data Subjects and the risks that are presented by the Processing of Personal Data, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise Processed.
- Customer agrees that, as of the Effective Date of this Agreement, Company’s primary processing operations and/or facilities for the Service are based in the United States. To the extent that Customer’s use of the Service requires transfer of Personal Data out of the EEA, the Parties agree that such transfer shall be made in compliance with an appropriate transfer mechanism providing adequate safeguards under EU Data Protection Laws, such as Standard Contractual Clauses. The determination of the appropriate transfer mechanism is in the Company’s sole discretion, so long as such mechanism is legally effective.
- Company shall notify Customer without undue delay, and in any event no later than seventy-two (72) hours, upon Company becoming aware of a Personal Data breach affecting Personal Data, providing Customer with sufficient information to allow Customer to meet its obligations to report or inform Data Subjects of the Personal Data breach under the Data Protection Laws. Company shall cooperate with Customer and take such reasonable commercial steps to assist in the investigation, mitigation and remediation of a Personal Data breach.
Fees & Payment
- The Service shall be provided for the fees specified in the applicable Order Form(s). Unless otherwise stated in the Order Form, all fees are quoted in United States Dollars. Fees are non-refundable except in the case of material breach of this Agreement by Company or as otherwise specifically set forth in this Agreement.
- Other Service Fees. Any work outside the scope of an Order Form requested by Customer shall be subject to pricing and terms to be mutually agreed by the Parties, whether in the form of a statement of work, order form or other document.
- Invoicing & Payment. Undisputed charges due shall be payable net 30 unless otherwise stated in the applicable Order Form or SOW.
- Purchase Orders. Notwithstanding anything to the contrary in any subsequent writing, in the event any conflict between a Customer PO and this Agreement, then this Agreement shall prevail.
- Overdue Payments. Any undisputed payment not received from Customer by the due date may, at Company’s discretion, accrue late charges at the rate of half percent (0.5%) of the outstanding balance per month, or at the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Disputed amounts will only be raised in good faith and Customer will notify Company of such as soon as reasonably practicable and at least within thirty (30) days after receipt of an invoice. Customer shall pay all reasonable costs of collections, including attorneys’ and collection agencies’ fees.
- Suspension of Service. If Customer’s account is sixty (60) days or more overdue for any undisputed fees and Customer does not pay such fees within fifteen (15) days of notice of such failure to pay, then, in addition to any of its other rights or remedies, Company shall have the right to suspend the Service until such amounts are paid in full.
- Taxes. Company’s fees are exclusive of any and all local, state, federal, and foreign taxes, levies, or duties of any nature including any VAT taxes (“Taxes”), and Customer is responsible for payment of all Taxes, excluding only taxes based on Company’s income, employees, property, and gross receipts. If Company has the legal obligation to pay or collect taxes for which Customer is responsible pursuant to this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
- Billing and Contact Information. Customer shall ensure that Customer’s license administrator maintains complete, accurate, and up-to-date Customer billing and contact information via the online Customer account section of the Service at all times.
- Definition of Confidential Information. As used herein, “Confidential Information” means all information marked “confidential” or “proprietary” at the time of disclosure or that otherwise should be understood by a reasonable person to be confidential in nature, provided by a party or on its behalf (“Disclosing Party”) to the other party (“Receiving Party“),including without limitation this Agreement (except to the extent needed to be disclosed to its advisory members, attorneys, accountants, or to enforce the terms hereof). Each party’s Confidential Information shall include any of its financial information, customer lists, personnel information, customer data, business and marketing plans, technology and technical information, product designs and information, developments, and business processes (whether in tangible or intangible form, in written or in machine readable form, or disclosed orally or visually). Regardless if marked as such, Company’s Confidential Information includes the Company Technology and the Service, and Customer’s Confidential Information includes the Customer Data and the Customer Property. Confidential Information shall not include any information that: (i) is or becomes generally known to the public, or is or becomes generally known in the industry, without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (ii) the Receiving Party can show was independently developed by the Receiving Party and was not acquired directly or indirectly from the Disclosing Party; or (iii) is rightfully received by the Receiving Party from a third party who obtained such Confidential Information without any obligation of confidentiality.
- Protection. Each party will, and will cause each of its personnel and agents to: (a) not disclose the other party’s Confidential Information to any third party, (b) not use the other party’s Confidential information for any purpose other than to perform its obligations or exercise its rights under this Agreement, and (c) protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. Notwithstanding this Section, each party shall be able to disclose Confidential Information of the other party to its personnel and agents (including, without limitation, Users) who have a need to know for the Receiving Party to perform its obligations or exercise its rights under this Agreement, provided such personnel or agents have been previously advised of the confidential nature of the information and have written obligations of confidentiality to the Receiving Party.
- Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party (including any Customer Data), it shall (where legally permitted) provide the Disclosing Party with prompt prior written notice of such compelled disclosure to permit the other party to seek judicial protection and/or confidential treatment of such information, and reasonable assistance (at Disclosing Party’s cost) if the Disclosing Party wishes to contest the disclosure. Further, the Receiving Party shall disclose only that Confidential Information that is required to be disclosed.
- Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 7, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek equitable relief, including an injunction to enjoin such acts or specific performance, it being specifically acknowledged by the parties that any such violation may give rise to irreparable injury to the other party such that monetary remedies are inadequate.
Warranties & Disclaimers
- Mutual Representations and Warranties. Each party represents and warrants that it has full right, power, and authority to agree to this Agreement and to perform its obligations and duties under the Agreement, and that the performance of such obligations and duties does not and will not conflict with or result in a breach of any other agreement of such party or any judgment, order, or decree by which such party is bound. Each party shall use the Service only for lawful purposes and in accordance with this Agreement. Each party will comply with all applicable laws and regulations in its performance and use under this Agreement and, in the event of a failure to comply by a party, the other party will have the right to suspend performance hereunder or terminate this Agreement.
- Customer Representations and Warranties. Customer represents and warrants that: (a) its use of the Service, including any Customer Data provided by Customer for use with the Service or handling by Company, will: (i) comply with any applicable law or regulation, (ii) not cause a breach of any agreement with or rights of any third party (including without limitation the rules of any social network platform or any data subject rights) and (iii) not unreasonably interfere with use of services offered by the Company to third parties; and (b) it shall use the Service strictly in accordance with this Agreement and other written instructions (e.g., product documentation, release notes, mutually agreed to SOWs, etc.) provided by Company. In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Company will have the right to suspend immediately any of the Service to prevent harm to Company or its business. If practicable, Company will provide notice and opportunity to cure. Once cured, in Company’s reasonable discretion, Company will use reasonable efforts to promptly restore the Service.
- Company Representations and Warranties. Company represents and warrants that (a) its Service will comply with applicable laws and regulations and the terms of this Agreement; (b) Company is authorized, or has the right, to license or otherwise grant the use of the Service and any third-party software contained or otherwise incorporated into the Service to Customer; and (c) the Service and Customer’s use of the Service does not infringe, misappropriate, or violate any third party’s IP Rights or any other third party proprietary right.
- Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 8, ALL COMPANY PRODUCTS AND SERVICES PROVIDED HEREUNDER ARE PROVIDED SOLELY ON AN “AS IS” BASIS. COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
- Disclaimer of Third Party Actions. Company does not and cannot control the flow of data to or from Service or within any portion of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt Customer’s connections to the Internet (or portions thereof). Although Company will use commercially reasonable efforts to take actions it deems appropriate to remedy and avoid such events with respect to Customer’s use of the Service, Company cannot guarantee that such events will not occur.
- Indemnification by Company. Subject to this Agreement, Company shall defend, indemnify, and hold Customer harmless against any loss or damage, expense or liability (including without limitation reasonable attorney’s fees and court costs and related legal expenses incurred in defending against such claim) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party (i) alleging that the Service or the Company Technology infringes, misappropriates or otherwise violates any patent, copyright, trademark, or other IP Rights of a third party; or (ii) arising from Company’s breach of its Confidentiality obligations (including with respect to Customer Data); provided, that Customer (a) promptly gives written notice of the Claim to Company (provided, however, that failure to so notify shall relieve Company of its liability to Customer only to the extent that Company is prejudiced thereby); (b) gives Company sole control of the defense and settlement of the Claim (provided that Company may not settle or defend any Claim unless it unconditionally releases Customer of all liability, does not impose any financial obligation on Customer or require Customer to take or refrain from taking any action, and such defense or settlement does not materially adversely impact Customer); and (c) provides to Company, at Company’s sole cost, all reasonable assistance requested by Company in the defense and settlement of the Claim. Company shall have no obligations to Customer under this Section 9.1 to the extent such Claims arise from Customer’s or its User’s breach of this Agreement or from the combination of the Service with any of Customer’s products, services, hardware or business processes (unless expressly authorized by Company or contemplated by this Agreement). If any Claim is made or, in Company’s sole judgment, is likely to be made, Company may, at its discretion, either, at no additional cost to Customer: (i) procure for Customer the right to continue to use the Service, as such use is specifically provided for in this Agreement, (ii) replace or modify the Service or Company Technology to avoid infringement, or (iii) terminate this Agreement upon written notice to Customer, and refund any paid but unused fees to Customer.
- Indemnification by Customer. Subject to this Agreement, Customer shall defend, indemnify, and hold Company harmless against any loss or damage, expense or liability (including without limitation reasonable attorney’s fees and court costs and related legal expenses incurred in defending against such claim) incurred in connection with Claims made or brought against Company by a third party (i) alleging that the Customer Data or Customer Property misappropriates or otherwise violates any IP Rights or other rights of a third party; (ii) arising from Customer’s use of the Service in a manner inconsistent with the terms of this Agreement (other than where Customer’s use of the Service is in accordance with written instructions provided by Company); or (iii) arising from Customer’s breach of Section 2.3; provided, that Company (a) promptly gives written notice of the Claim to Customer (provided, however, that failure to so notify shall relieve Customer of its liability to Company only to the extent that Customer is prejudiced thereby); (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Company of all liability, does not impose any financial obligation on Company or require Company to take or refrain from taking any action, and such defense or settlement does not materially adversely impact Company); and (c) provides to Customer, at Customer’s cost, all reasonable assistance. Customer shall have no obligations to Company under this Section 9.2 to the extent such Claims arise from Company’s breach of this Agreement or Company’s use of Customer Data beyond the rights authorized and contemplated by this Agreement.
Limitation of Liability
- IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
- EXCEPT FOR EACH PARTY’S LIABILITY FOR PAYMENT OF FEES AND FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, EACH PARTY’S CUMULATIVE, TOTAL LIABILITY TO THE OTHER PARTY FOR ANY REASON (WHETHER BASED IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY) IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY CUSTOMER TO COMPANY FOR THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
Term & Termination
- This Agreement shall commence on the Effective Date and shall continue until the expiration of the last to expire Service Term for all Services ordered, unless sooner terminated pursuant to this Agreement or the terms of the applicable Order Form.
- Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party, provided such breach remains uncured at the expiration of the notice period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
- Effect of Termination. Upon the effective date of termination or expiration of this Agreement: (i) Company will immediately cease providing the Service to Customer; and (ii) any and all undisputed payment obligations of Customer for Service provided through the date of termination will immediately become due. Within thirty (30) calendar days of termination or expiration of this Agreement, or at the Disclosing Party’s request, each Party will return or securely destroy all Confidential Information of the other Party (as the other Party may elect) in its possession or control (including all copies thereof, in any media). In addition, each Party shall purge its computer systems and database of the other Party’s Confidential Information. Notwithstanding the foregoing return and destroy obligations, a Party (a) may retain copies of the other Party’s Confidential Information in order to comply with any applicable legal or accounting record keeping requirements; and (b) shall not be required to return or destroy any electronic backups of the other Party’s Confidential Information made in the normal course of business, provided the such Party continues to comply with all of the confidentiality and security obligations in this Agreement with respect to such information. Within thirty (30) calendar days of the date of termination or expiration of this Agreement, Company shall remove all Customer Datafrom any media and shall securely destroy or securely erase such media.
- The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 1, 2.4, 4, 6, 7, 8.4, 10, 11, and 12.4 through 12.15.
- Professional Service. Customer may request Company to provide certain professional services that are ancillary to the Service, such as integration or customization (“Professional Service”). In such event, the parties will enter into a Statement of Work (“SOW”) that refers to and is subject to this Agreement and sets forth the scope and description of the Professional Service, deliverables, parties’ responsibilities, completion dates, fees and payment terms, and any other relevant information.
- Publicity. Company may identify Customer as a customer in customer lists. Company and its affiliates will be permitted to use Customer’s name and logo on their websites, in testimonial content, in press releases, and within marketing materials, provided such use and display is in accordance with Customer’s trademark usage guidelines communicated to Company from time to time. Customer agrees that Company may issue a press release and future case study relating to this Agreement, so long as such press release or case study is sent to Customer in advance of publication.
- Insurance. Company will maintain at its expense insurance with at least the following coverage: (i) workers’ compensation insurance and employer’s liability insurance meeting U.S. federal and state minimum requirements; and (ii) Comprehensive General Liability coverage and Umbrella and/or Excess Liability coverage with a minimum total limit of $2,000,000 combined single limit for property loss or damage and bodily injury; and (iii) Professional Liability insurance with a minimum total limit of $2,000,000; and (iv) Network and Information Security Liability insurance with a minimum limit of at least $5,000,000. Upon Customer’s request, Company shall provide Customer with certificates of insurance evidencing the Company’s insurance coverage.
- Relationship of the Parties. The parties’ relationship is strictly that of independent contractors and this Agreement do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Neither party has the power to bind the other, make any warranties or representations, or incur, assume or create obligations on the other’s behalf without the other’s prior written consent and each party agrees that it will not perform any act or omission to the contrary.
- No Benefit to Others. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the parties and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on any other persons.
- Notices. All notices under this Agreement shall be in writing and shall be delivered to the address of the Customer account by means evidenced by a delivery receipt or by email. Notice shall be deemed to have been given upon: (i) if personally delivered, upon delivery, (ii) if sent by an overnight service with tracking capabilities, upon receipt; (iii) if sent by fax or electronic mail, at such time as the Party which sent the notice receives confirmation of receipt by the applicable method of transmittal, or (iv) if sent by certified or registered mail, within five (5) days of deposit in the mail. Notices to Company shall be addressed to the attention of its General Counsel.
- Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. The waiver by a party of compliance by the other party with any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement (whether or not similar), or a continuing waiver or a waiver of any subsequent breach by a party of a provision of this Agreement.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be changed by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect, unless the modification or severance of any provision has a material adverse effect on a party, in which case such party may terminate this Agreement by notice to the other party.
- Assignment.Neither Party may assign any of its rights or obligations under this Agreement, in whole or in part, whether by operation of law or otherwise, without the prior express written consent of the other Party. Notwithstanding the foregoing, either Party may assign this Agreement, without consent of the other Party in connection with a Change in Control; provided, however, that the assignee to which this Agreement is assigned must agree in writing to be bound by the terms and conditions hereof and the assigning party shall notify the other Party of such assignment within a reasonable period of time following the Change in Control. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties hereto, their respective successors and permitted assigns.
- Governing Law/Venue. This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the United States and the State of California, without regard to its conflict of law’s provisions. The federal and state courts located in the Northern District of California or San Mateo County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement, and each Party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise. However, the jurisdiction used to pursue any unpaid Service fees will be at the sole discretion of Company. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
- Export Control Laws. Each Party shall comply with United States and foreign export control laws or regulations applicable to its performance under this Agreement. Without limiting the foregoing, both Parties represent and warrant that (a) it is not listed on any U.S. government list or prohibited or restricted parties; (b) it is not subject to any UN, U.S., EU, or any other applicable economic sanctions or trade restrictions; and (c) it does not have operations in a country subject to comprehensive U.S. trade sanctions.
- Force Majeure. Neither party will be deemed in breach of this Agreement if the failure to perform is caused by circumstances beyond its reasonable control, including without limitation acts of God, acts of government, flood, fire, earthquake, civil unrest, acts of terror, strikes or labor problems, computer, internet, or telecommunications failures, delays or network intrusions, or denial of service attacks, but only if (a) such party gives prompt written notice to the other party of the force majeure event, and (b) such failure or delay results notwithstanding the exercise of reasonable care and diligence to avoid or mitigate the same in anticipation of or in response to such causes. The time for performance will be extended for a period equal to the duration of the force majeure event.
- Equal Employment. Both parties agree to comply with all applicable equal employment opportunity laws, including Title VII of the 1964 Civil Rights Act, the Civil Rights Act of 1991, the Americans with Disabilities Act, and, if applicable, the affirmative action requirements of the Executive Order 11246, the Rehabilitation Act of 1973, as amended, and the Vietnam Era Veterans Readjustment Assistance Act of 1974, as amended.
- Entire Agreement and Construction. This Agreement, any SOWs, and the Order Form(s) constitute the entire and exclusive agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this Agreement. Except as contemplated to the contrary herein with respect to Order Forms, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. In the event of any conflict between the provisions in this Agreement, any SOW, and the Order Form(s), the terms of the Order Form will take first precedence, then this Agreement will take second precedence, and any SOW will take third precedence, provided that any terms of an Order Form that conflict with this Agreement will take precedence solely in connection with those specific services set forth in such Order Form and the delivery thereof. In all other instances, this Agreement shall govern and control. Notwithstanding any language to the contrary therein, no terms or conditions stated in a purchase order issued by Customer or in any other Customer order documentation shall be incorporated into or form any part of this Agreement.