Terms & Conditions

1.    SERVICES AND SUPPORT

1.1    Subject to the terms and conditions of this Agreement, Our Company will provide Customer with access to the Services through the internet.  The Services are subject to modification from time to time at Our Company’s sole discretion, for any purpose deemed appropriate by Our Company.  Our Company will use reasonable efforts to give Customer prior written notice of any such modification.

1.2    Our Company will undertake commercially reasonable efforts to make the Services available in accordance with the SLA attached as Exhibit A.  Notwithstanding the foregoing, Our Company reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Our Company.

1.3    Subject to the terms hereof, Our Company will provide reasonable support to Customer for the Services from Monday through Friday during Our Company’s normal business hours.

2.    RESTRICTIONS AND RESPONSIBILITIES

2.1    Access to the Services may require the Customer to install certain software applications.  Customer agrees to be bound by any End-User Software Agreements that govern the installation and use of such client software applications.  If Our Company authorizes Customer to distribute any such application to its end user customers (“End Users”), Customer may do so only after effectively binding such End Users to the applicable End-User Software Agreements provided by Our Company for the benefit of Our Company.

2.2    Customer will not, and will not permit any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or obtain the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) modify, translate, or create derivative works based on the Services or Software; (iii) use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own internal use for its own internal benefit [and for the benefit of End Users]; (iv) use the Software or Services in any infringing, defamatory, harmful, fraudulent, illegal, deceptive, threatening, harassing, or obscene way; or (v) use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws, regulations and rights (including but not limited to those related to privacy, intellectual property, consumer and child protection, SPAM, text messaging, obscenity or defamation). 

2.3    Customer will cooperate with Our Company in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Our Company may reasonably request.  Customer will also cooperate with Our Company in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.

2.4    Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”).  Customer may change the individual designated as Primary Contact at any time by providing written notice to Our Company.

2.5    Although Our Company has no obligation to monitor the Content (as defined below) provided by Customer or Customer’s use of the Services, Our Company may do so and may remove any such Content from the Services or prohibit any use of the Services at any time, for any or no reason, including if Our Company receives any notice or claim that any such Content or activities hereunder with respect to any such Content, may infringe or violate rights of a third party. Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.

2.6    Customer further acknowledges, agrees to and is bound by the Privacy Policy on Our Company’s website (as it may be updated from time to time), except to the extent expressly and directly in conflict with the terms hereof.

2.7    Customer acknowledges and agrees that the Services operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Our Company is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services.  Our Company does not make any representations or warranties with respect to Third Party Services or any third party providers.  Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.

3.    CONFIDENTIALITY

3.1    Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  

3.2    The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to  take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information.  The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party.  Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. The parties agree that Aggregated Anonymous Data (as defined below) is not Proprietary Information.

3.3    Customer acknowledges that Our Company does not wish to receive any Proprietary Information from Customer that is not necessary for Our Company to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Our Company may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.

3.4    Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.

4.    INTELLECTUAL PROPERTY RIGHTS

Except as expressly set forth herein, Our Company alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service or the Software, including Aggregated Anonymous Data (as defined below), or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Service and/or the Software, which are hereby assigned to Our Company.  Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement.  Customer is hereby granted a non-exclusive, nontransferable, revocable right to use the Resulting Data for its internal analysis purposes only during the Service Term.  This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service or Software, or any intellectual property rights.  

Our Company will obtain and process certain content/data provided by or on behalf of Customer (“Content”) only to perform its obligations under this Agreement. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Content distributed through the Services and the intellectual property rights with respect to that Content.  Notwithstanding anything to the contrary, Customer acknowledges and agrees that Our Company may (i) use and modify the Content for the purposes of (A) providing the Services, (B) testing, improving and operating Our Company’s products and services, and (C) generating Aggregated Anonymous Data (as defined below), and (ii) freely retain, use and make available Aggregated Anonymous Data for Our Company’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Our Company’s products and services). “Aggregated Anonymous Data” means Content submitted to, collected by, or generated by Our Company in connection with Customer’s use of the Service, but only in aggregate, anonymized form which can in no way be linked specifically to Customer. 

5.    INDEMNIFICATION

5.1    Customer will indemnify and hold harmless Our Company, its employees, affiliates, contractors agents or other representatives (each, a “Our Company Indemnitee”) from and against any damages, losses, liabilities, settlements and expenses (including without limitation costs and reasonable attorneys’ fees) payable by any Our Company Indemnitee to any unrelated third party in connection with any third party claim or action arising from an alleged violation of Section 2 of this Agreement or otherwise from Customer Content or Customer’s use of the Services.  

5.2    Our Company will indemnify and hold harmless Customer, its employees, affiliates, contractors agents or other representatives (each, a “Customer Indemnitee”) from and against any damages, losses, liabilities, settlements and expenses (including without limitation costs and reasonable attorneys’ fees) payable by any Customer Indemnitee to any unrelated third party in connection with any third party claim or action arising from an alleged infringement by the Services of any patent, copyright, trademark, trade secret or other intellectual property right. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by Our Company, (ii) resulting in whole or in part in accordance from Customer specifications, (iii) that are modified after delivery by Our Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of is not strictly in accordance with this Agreement and all related documentation. Customer will indemnify Our Company from all damages, costs, settlements, attorneys’ fees and expenses related to any claim of infringement or misappropriation excluded from Our Company’s indemnity obligation by the preceding sentence solely to the extent that any such damages, costs, settlements, attorneys’ fees and expenses are attributable to the actions of Customer, its affiliates, employees, or agents.

5.3    If any part of the Services becomes, or in Our Company’ reasonable opinion is likely to become, subject to an infringement threat, claim or action, Our Company may, in its sole discretion (at its expense and in addition to its indemnification obligations hereunder): (i) secure the right for Customer to continue using the alleged infringing item; (ii) replace or modify the alleged infringing item to make such item non-infringing (provided that any such replacement or modification will not materially degrade the performance or quality of the Services in the aggregate), or (iii) terminate this Agreement (in which case Our Company will provide Customer with a pro-rated refund for the unused portion of the Fees (as defined below)).  

5.4    Each party’s indemnification obligations under this Section 5 are conditioned on the indemnified party (i) promptly notifying the indemnifying party of the indemnifiable claim; (ii) permitting the indemnifying party, at the indemnifying party’s option, to assume sole control over the defense and trial of any claim and any related settlement thereof, and (iii) at the request and expense of the indemnifying party, reasonably cooperating with the indemnifying party in the defense of any such claim. The indemnifying party shall not agree to any settlement that admits any wrongdoing on the part of the indemnified party, imposes civil or criminal liability on any indemnified party, or requires any specific performance by any indemnified party without the indemnifying party first obtaining the indemnified party’s written consent, such consent not to be unreasonably withheld.

6.    PAYMENT OF FEES

6.1    Customer will pay Our Company the applicable fees as set forth on the Order Form (the “Fees”).  [If Customer use of the Services exceeds the Service Capacity set forth on the Order Form, Customer will be invoiced at the end of each calendar month for the excess usage over the Service Capacity, at the rate set forth on the Order Form, and Customer agrees to pay the additional fees without any right of set-off or deduction.]  To the extent applicable, Customer will pay Our Company for additional services, such as integration fees or other consulting fees.  All payments will be made in accordance with the Payment Schedule and the Method of Payment.  If not otherwise specified, payments will be due within thirty (30) days of invoice and are nonrefundable.

6.2    Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any.  Customer agrees to pay such taxes (excluding US taxes based on Our Company’s net income) unless Customer has provided Our Company with a valid exemption certificate.  In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Our Company on account thereof.

7.    TERMINATION

7.1    Subject to earlier termination as provided below, this Service Agreement is for the Service Term as specified in the Order Form.

7.2    In the event of any material breach of this Agreement (including any failure to pay), the non-breaching party may terminate this Agreement prior to the end of the Service Term by giving thirty (30) days (or ten (10) days in the case of nonpayment) prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such notice period.  Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business.

7.3    All sections of this Service Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability. 

8.    CLIENT SOFTWARE SECURITY

Our Company represents and warrants that it will not knowingly include, in any Our Company software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud,  damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data.  If, at any time, Our Company fails to comply with the warranty in this Section, Customer may promptly notify Our Company in writing of any such noncompliance.  Our Company will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance.  If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance.

9.    WARRANTY DISCLAIMER

EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED HEREIN, THE SERVICES AND Our Company PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND.  Our Company (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

10.    LIMITATION OF LIABILITY

IN NO EVENT WILL  Our Company (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF Our Company HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.  THE TOTAL LIABILITY OF Our Company, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS, OR (ii) THE FEES PAID TO Our Company HEREUNDER IN THE TWELVE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED.  THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, BUT WILL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS OR CONFIDENTIALITY OBLIGATIONS HEREUNDER, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.


11.    MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sublicensable by Customer except with Our Company’s prior written consent.  Our Company may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer.  Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Our Company in any respect whatsoever.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.  Our Company will not be liable for any loss resulting from a cause over which it does not have direct control. Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Our Company.  Our Company is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion. 

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