GoSite, Inc (“Company,” “we” or “us”) provides a range of cloud based software products and services for businesses of all sizes (the “Services”).
PLEASE REVIEW THESE TERMS & CONDITIONS CAREFULLY. BY ACCEPTING THESE TERMS, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHICH CONTAIN, AMONG OTHER PROVISIONS, DISPUTE RESOLUTION PROVISIONS, A WAIVER OF CLASS-ACTION RIGHTS AND LIMITATIONS OF LIABILITY. UNLESS OTHERWISE EXPRESSLY STATED, GOSITE, INC DISCLAIMS ANY AND ALL WARRANTIES WHETHER PROVIDED BY THE COMPANY, ITS AFFILIATES, OR ITS RESPECTIVE EMPLOYEES AND AGENTS.
In consideration of the mutual promises and agreements set forth in these Terms of Service, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and agreed as follows:
“Customer Content” means all data, photos, text, audio, video, communications, content and materials submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Customer or any User and received by the Service.
“Documentation” means the [printed, paper, electronic or online user instructions and help files] made available by Supplier to Customer for use with the Service, as may be updated from time to time by Supplier.
“Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights, in each case, including any registrations, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.
“Order Form” means the order form of purchased products and/or services.
“Service” means Internet access to the product offering described on the Order Form.
“Third Party Offerings” means any services, software or products provided by third parties that interoperate with the Service.
“Users” means Customer’s employees and consultants (a) who are authorized by Customer to access and use the Service and (b) who have been supplied user identifications and passwords for such purpose by Customer (or by Supplier at Customer’s request).
LICENSES AND RESTRICTIONS
Access and Use License. Subject to Customer’s compliance with the terms and conditions contained in this Agreement, Supplier hereby grants to Customer, during the term of this Agreement, a limited, non-exclusive, non-transferable right for its Users to access and use the Service in accordance with the Documentation in each case solely for Customer’s internal business purposes and not for the benefit of any other person or entity. Customer’s use of the Service is limited to the number of locations specified in the Order Form. Customer agrees that its purchase of the Service is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Supplier regarding any future functionality or features.
Restrictions. Customer shall not, directly or indirectly, and the Customer shall not permit any User or third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Service; (b) modify, translate, or create derivative works based on any element of the Service or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Service; (d) use the Service for time sharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer; (e) remove any proprietary notices from the Documentation; (f) publish or disclose to third parties any evaluation of the Service without Supplier's prior written consent; (g) use the Service for any purpose other than its intended purpose; (h) interfere with or disrupt the integrity or performance of the Service; or (i) attempt to gain unauthorized access to the Service or their related systems or networks.
Reservation of Rights. Except as expressly granted in this Agreement, there are no other licenses granted to Customer, express, implied or by way of estoppel. All rights not granted in this Agreement are reserved by Supplier.
THIRD PARTY OFFERINGS
Integration with Third Party Offerings. The Service contains features designed to interoperate with Third Party Offerings. To use such features, Customer may be required to obtain access to such Third Party Offering from their providers. If the provider of any Third Party Offering ceases to make the Third Party Offering available for interoperation with the corresponding Service features on reasonable terms, Supplier may cease providing such features without entitling Customer to any refund, credit, or other compensation.
Use of Third Party Offerings. Any use by Customer of any Third Party Offerings, and any exchange of data between Customer and any provider of a Third Party Offering, is solely between Customer and the applicable provider of the Third Party Offering. Supplier does not warrant or support any Third Party Offering. If Customer uses any Third Party Offering in connection with the Service, Customer acknowledges that Supplier may allow providers of that Third Party Offering to access Customer Content as required for the interoperation and support of such Third Party Offering with the Service. Supplier shall not be responsible for any disclosure, modification or deletion of Customer Content resulting from any such access by the providers of Third Party Offerings.
Access to Customer’s Accounts on Third Party Offerings. Customer authorizes Supplier, in conjunction with Supplier’s provision of the Service, to access Customer’s accounts on Third Party Offerings and to take such other actions as are reasonably necessary within such Customer accounts to provide the Service. To the extent that Supplier requires that Customer grant Supplier authorizations, passwords or other user credentials to a Third Party Offering (“Supplier Access Codes”) to retrieve Customer Content or to enable interoperability with the Service, Customer shall promptly provide such Supplier Access Codes.
PASSWORDS AND SECURITY
Passwords. Supplier will issue to Customer user logins and passwords for each of its Users authorized to access and use the Service. Customer shall be, and shall ensure that each of its Users are, responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the User to which it was issued. Customer is solely responsible for any and all access and use of the Service that occurs using logins and passwords Supplier issues to Users. Customer shall restrict its Users from sharing passwords. Customer agrees to immediately notify Supplier of any unauthorized use of any account or login and password issued to Customer’s Users, or any other breach of security known to Customer. Customer is responsible for all use of Customer’s User accounts, and the Customer is responsible for compliance by each User with the terms of this Agreement. Supplier shall have no liability for any loss or damage arising from Customer’s failure to comply with the terms set forth in this Section.
No Circumvention of Security. Neither Customer nor any User may circumvent or otherwise interfere with any user authentication or security of the Service. Customer will immediately notify Supplier of any breach, or attempted breach, of security known to Customer.
Security. Supplier will use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Content in a manner consistent with what Supplier supplies generally to its other customers.
Notwithstanding the foregoing, Customer acknowledges that, notwithstanding any security precautions deployed by Supplier, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Service and Customer Content. Supplier cannot and does not guarantee the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient.
Customer System. Customer is responsible for (a) obtaining, deploying and maintaining all computer hardware, software, modems, routers and other communications equipment necessary for Customer and its Users to access and use the Service via the Internet (“Customer System”); (b) contracting with third party ISP, telecommunications and other similar service providers to access and use the Service via the Internet; and (c) paying all third party fees and access charges incurred in connection with the foregoing. Supplier shall not be responsible for supplying any hardware, software or equipment to Customer under this Agreement.
Acceptable Uses. Customer shall be solely responsible for its actions and the actions of its Users while using the Service. Customer acknowledges and agrees: (a) to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of the Service, including without limitation the provision, storage and use of Customer Content; (b) not to send or store data on or to the Service which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload or send to Supplier in any way any information or content that contain viruses, worms, time bombs, Trojan horses, harmful or malicious code, files, scripts, agents, programs or data that may damage the operation of the Service or another's computer or mobile device; (d) not to upload in any way any data regarding an individual’s financial or economic identity, sexual orientation, religious beliefs, medical or physical identity; (e) not to use the Service for illegal, fraudulent, unethical or inappropriate purposes; (f) not to interfere or disrupt networks connected to the Service or interfere with other ability to access or use the Service; (g) not to distribute, promote or transmit through the Service any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature; (h) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (i) not to interfere with another customer’s use and enjoyment of the Service or another person or entity's use and enjoyment of similar services; (j) not to use the Service in any manner that impairs the Service, including without limitation the servers and networks on which the Service is provided; (k) to comply with all regulations, policies and procedures of networks connected to the Service and Supplier’s service providers; and (l) to use the Service only in accordance with the provided Documentation. Customer acknowledges and agrees that Supplier neither endorses the contents of any Customer communications or Customer Content, nor assumes any responsibility for any offensive material contained therein, any infringement of third party Intellectual Property Rights arising therefrom or any crime facilitated thereby. Supplier may remove any violating content posted or stored using the Service or transmitted through the Service, without notice to Customer. Notwithstanding the foregoing, Supplier does not guarantee, and does not and is not obligated to verify, authenticate, monitor or edit the Customer Content or any other information or data input into or stored in the Service for completeness, integrity, quality, accuracy or otherwise. Customer shall be responsible and liable for the completeness, integrity, quality and accuracy of Customer Content.
Accuracy of Customer’s Contact Information; Email Notices. Customer agrees to provide accurate, current and complete information as necessary for Supplier to communicate with Customer from time to time regarding the Service, issue invoices or accept payment, or contact Customer for other account-related purposes. Customer agrees to keep any online account information current and inform Supplier of any changes in Customer’s legal business name, address, email address and phone number. Customer agrees to accept emails from Supplier at the e-mail addresses specified by its Users for login purposes. In addition, the Customer agrees that Supplier may rely and act on all the information and instructions provided to Supplier by Users from the above-specified email address.
Temporary Suspension. Supplier may temporarily suspend Customer’s or its Users’ access to the Service in the event that either Customer any of their Users is engaged in, or Supplier in good faith suspects Customer or any of their Users is engaged in, any unauthorized conduct (including, but not limited to any violation of this Agreement). Supplier will attempt to contact Customer prior to or contemporaneously with such suspension; provided, however, that Supplier’s exercise of the suspension rights herein shall not be conditioned upon Customer’s receipt of any notification. A suspension may take effect for Customer’s entire account and Customer understands that such suspension would therefore include User sub-accounts. Customer agrees that the Supplier shall not be liable to Customer, any of its Users, or any other third party if Supplier exercises its suspension rights as permitted by this Section. Upon determining that Customer has ceased the unauthorized conduct leading to the temporary suspension to Supplier’s reasonable satisfaction, Supplier shall reinstate Customer’s and its Users’ access and use of the Service. Notwithstanding anything in this Section to the contrary, Supplier’s suspension of Service is in addition to any other remedies that Supplier may have under this Agreement or otherwise, including but not limited to termination of this Agreement for cause. Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, Supplier may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach.
AVAILABILITY AND SUPPORT
Availability. Subject to the terms and conditions of this Agreement, Supplier will use commercially reasonable efforts to make the Service available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime (with regard to which Supplier will use commercially reasonable efforts to provide at least 24 hours advance notice, and (b) routine maintenance times currently scheduled for every Friday, 10:01 p.m. to 04:00 a.m. (Pacific Time and as otherwise specified by Supplier, and (c) any unavailability caused by circumstances of Force Majeure described in Section 14.12 (Force Majeure). Certain enhancements to the Service made generally available at no cost to all subscribing customers during the term of this Agreement will be made available to Customer at no additional charge. However, the availability of some new enhancements to the Service may require the payment of additional fees, and Supplier will determine at its sole discretion whether access to any other such new enhancements will require an additional fee. This Agreement will apply to, and the Service includes, any bug fixes, error corrections, new builds, enhancements, updates, upgrades and new modules to the Service subsequently provided by Supplier to Customer hereunder.
Support. Supplier will provide technical support to Customer via both telephone and electronic mail on weekdays during the hours of 8:00 am through 5:00 pm Pacific time, with the exclusion of US federal holidays. (“Support Hours”). Customer may initiate a helpdesk ticket during Support Hours by calling 858-295-7995 or any time by emailing email@example.com.
FEES AND PAYMENT METHODS
Fees. Customer agrees to pay all fees specified in the Order Form using one of the payment methods Supplier supports. Except as otherwise specified in this Agreement, (a) fees are quoted and payable in United States dollars, (b) fees are based on Service purchased, regardless of actual usage, and (c) payment obligations are non-cancelable and fees paid are non-refundable. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding.
Payment. Customer agrees to pay the fees set forth in the Order Form in accordance with the due dates set forth in the Order Form. Customer is responsible for providing complete and accurate billing and contact information to Supplier and notifying Supplier of any changes to such information.
Overdue Charges. If Supplier does not receive fees by the due date, then at Supplier’s discretion, such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
Suspension of Service. If any amounts owed by Customer for the Service are ten (10) or more days overdue, Supplier may, without limiting Supplier’s other rights and remedies, suspend Customer’s and its Users’ access to the Service until such amounts are paid in full.
Taxes. “Taxes” means all taxes, levies, imposts, duties, fines or similar governmental assessments imposed by any jurisdiction, country or any subdivision or authority thereof including, but not limited to federal, state or local sales, use, property, excise, service, transaction, privilege, occupation, gross receipts or similar taxes, in any way connected with this Agreement or any instrument, or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes imposed on or measured by a party’s net income. Notwithstanding the foregoing, Taxes shall not include payroll taxes attributable to the compensation paid to workers or employees and each party shall be responsible for its own federal and state payroll tax collection, remittance, reporting and filing obligations. Fees and charges imposed under this Agreement or under any document ancillary to or referenced by this Agreement shall not include Taxes except as otherwise provided herein. Customer shall be responsible for all of such Taxes. If, however, the Supplier has the legal obligation to pay Taxes and is required or permitted to collect such Taxes for which Customer is responsible under this section, Customer shall promptly pay the Taxes invoiced by Supplier unless Customer has furnished Supplier with valid tax exemption documentation regarding such Taxes at the execution of this Agreement or at the execution of any subsequent instrument or agreement ancillary to or referenced by this Agreement. Customer shall comply with all applicable tax laws and regulations. Customer hereby agrees to indemnify Supplier for any Taxes and related costs paid or payable by Supplier attributable to Taxes that would have been Customer’s responsibility under this Section 7.5 if invoiced to Customer. Customer shall promptly pay or reimburse Supplier for all costs and damages related to any liability incurred by Supplier as a result of Customer’s non-compliance or delay with its responsibilities herein. Customer’s obligation under this Section 7.5 shall survive the termination or expiration of this Agreement.
Payment Methods. You authorize GoSite to charge your credit card, debit card, or financial institution account (via an automated clearing house (“ACH”) transaction), for all amounts owed to GoSite with respect to the Order Form and or additional Services and Disbursements you ordered via your GoSite Account or otherwise. When you provide a Payment Method to GoSite, you confirm that you are permitted to use that Payment Method. You also authorize GoSite to collect and store the related payment card or financial institution account number(s) or other information, along with other related transaction information (collectively, “Payment Information”). When you make a purchase, you authorize GoSite to charge the full amount of the transaction owed according to the Order Form. You also acknowledge and agree that GoSite may share selective Payment Information with third parties, such as payment processors and/or credit agencies, for the purpose of checking credit, effecting payment to GoSite and servicing your GoSite Account.
Authorization to Pay by Credit or Debit Card. If the Payment Method you choose is to pay by credit or debit card, we may obtain pre-approval from the issuer of the card for an amount up to the amount of the purchase. We will bill your card at the time of purchase or shortly thereafter in the amounts owed to GoSite as indicated on the corresponding GoSite Order Form. If you cancel an order before completion, that pre-approval may result in your funds or available credit not being immediately available. If you pay by debit card and your payment results in an overdraft or other fee from your bank, you alone are responsible for that fee. The Administrator (as defined below) may be able to change or update the card information (“Card Information”), including the card number, name on the card, expiration date, and the card verification value (CVV) code, assigned to your GoSite account at a later time or times, and in a manner that GoSite requires in its sole discretion.
Authorization to Pay by ACH. If the Payment Method you choose is to pay by ACH (“ACH Payment Service”), you hereby authorize GoSite to electronically debit or credit, via an ACH transaction, the bank deposit account you designate from time to time (“Bank Account”). These Terms of Service, the related GoSite webpages, and information you input to such webpages (or which GoSite reasonably believes was inputted by you), during your initial enrollment in the ACH Payment Service and any time you update or amend the same (which GoSite may require in its sole discretion), each constitute your authorization to GoSite to debit or credit your Bank Account via ACH transactions (“Authorization”), as provided in these Terms of Service. The following terms and conditions apply to the ACH Payment Service:
Authorization to Debit and Credit Bank Account. You hereby authorize GoSite to initiate: (a) recurring automatic ACH debits to your Bank Account in the amounts owed to GoSite as indicated on the GoSite Order Form.; and (b) ACH credits to your Bank Account to correct any erroneous debits or provide a refund, as approved by GoSite in its sole discretion. Your Authorization also includes permission to collect the following, whether provided as part of the ACH enrollment or when you enrolled in GoSite’s Services generally: (i) your name; (ii) your current mailing address and Bank Account Information (as described in Paragraph 3. below); (iii) your Internet Protocol (IP) address; and (iv) the means used by GoSite to authenticate the person providing the Authorization on your behalf as described in the Sections below titled “Administrators and Sub-users” and “Credentials and Authorizing Transactions”. With respect to each ACH transaction you authorize, you agree to be bound by the “National Automated Clearing House Association Operating Rules and Guidelines” (“NACHA Rules”), as may be amended from time to time.
Timeframe and Amounts of Debits to Bank Account. ACH debits to your Bank Account generally will occur one to five days after the date of the invoice(s) generated by GoSite. You acknowledge that the amounts of the automatic ACH debits to your Bank Account may vary depending on the invoice amounts.
Bank Account Information. In accordance with procedures established by GoSite, you agree to provide to GoSite the necessary information pertaining to your Bank Account in order to debit or credit your Bank Account via an ACH transaction, including (but not limited to) the name of your financial institution, the financial institution’s routing number, the name(s) of the owner(s) of your checking account designated as the Bank Account, and the account number of the Bank Account (collectively “Bank Account Information”). The Administrator (as defined below) may be able to change or update the Bank Account Information at a later time and in a manner that GoSite requires in its sole discretion.
Revoking your authorization. This Authorization will remain in full force and effect until you notify GoSite by electronic message at firstname.lastname@example.org that you wish to revoke this Authorization. GoSite requires at least 10 business days’ prior written notice in order to revoke (cancel) this Authorization. Revocation will not affect GoSite’s right to initiate ACH credits to your Bank Account in order to correct or adjust any debits that were processed before your revocation became effective.
Return of ACH Entries. If an ACH payment is returned from your Bank Account for insufficient or uncollected funds or for erroneous information, GoSite may reinitiate the returned ACH debit to your Bank Account within one to five days after the initiation of the first ACH debit. You agree to pay GoSite a returned payment fee of $25 that may be charged by GoSite, for each returned ACH debit from your Bank Account. Any amounts owed to GoSite that cannot be collected by an ACH debit will be charged to the backup credit card on file with GoSite as described below.
Filing Claims for Alleged Errors. If you believe an ACH debit initiated by GoSite occurred in error, there was an error in the amount of a debit, or any other error, you must file a claim with GoSite at once by contacting GoSite at email@example.com, giving GoSite all information you have about the alleged error, and taking any other action(s) as reasonably required by GoSite. You have sixty (60) days after the date of the posting of the ACH debit in question to file a claim. If you file a claim with GoSite after more than sixty (60) days, GoSite will have no obligation to investigate the claim and you will have no right to recover any funds you may have lost as a result of the alleged error. If an error occurs with regard to an ACH credit, GoSite may take any action permitted by law and the NACHA Rules to recover the funds from your Bank Account.
Representations and Warranties. You represent and warrant to GoSite that you are a business organization or a sole proprietorship, and that the ACH Payment Service will not be used for personal, family or household purposes; (ii) you own the Bank Account; (iii) you have authority on behalf of any other owner(s) of the Bank Account to authorize GoSite to debit the Bank Account as agreed in these Terms of Service; and (iv) all ACH transactions you authorize comply with all applicable laws and the NACHA Rules, as may be amended from time to time.
You must have an account established with GoSite prior to any Services being performed. When establishing an account with GoSite, GoSite requires a valid credit card be placed on file with GoSite as a form of back up payment. Payment for Services rendered by GoSite is non-refundable. Payment outstanding fifteen (15) days or more beyond the terms stated in an invoice is considered delinquent. Should any invoice become delinquent, GoSite reserves the right to charge the invoice amount to the backup credit card or the ACH Payment Service. Because all transactions are conducted electronically, you agree that the physical credit card need not be present with GoSite in order for the charge to the card to be valid, and you agree not to dispute the validity of any such charge on that basis.
REPRESENTATIONS AND WARRANTIES; DISCLAIMER
Mutual Representations and Warranties. Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into this Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) its acceptance of and performance under this Agreement shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.
Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 8, THE SERVICE IS PROVIDED ON AN AS-IS BASIS. CUSTOMER’S USE OF THE SERVICE IS AT ITS OWN RISK. SUPPLIER DOES NOT MAKE, AND HEREBY DISCLAIMS, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE EXPRESS WARRANTIES MADE BY SUPPLIER IN SECTION 8 ARE FOR THE BENEFIT OF THE CUSTOMER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. ANY SOFTWARE PROVIDED THROUGH THE SERVICE IS LICENSED AND NOT SOLD. NO AGENT OF SUPPLIER IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF SUPPLIER AS SET FORTH HEREIN. SUPPLIER DOES NOT WARRANT THAT: (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (E) THE SERVICE WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE SERVICE WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SUPPLIER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS. SUPPLIER SPECIFICALLY DISCLAIMS AND EXCLUDES ALL LIABILITY OF SUPPLIER’S SUPPLIERS AND LICENSORS, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, FOR ANY DIRECT, SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES UNDER THIS AGREEMENT.
General. During the term of this Agreement, Supplier, at its expense, shall defend Customer and its officers, directors and employees (the “Customer Indemnified Parties”) from and against all actions, proceedings, claims and demands by a third party (a “Third-Party Claim”) alleging that the Service infringes any copyright or misappropriate any trade secret and shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the third party bringing any such Third-Party Claim. Supplier’s obligations under this Section are conditioned upon (i) Supplier being promptly notified in writing of any claim under this Section, (ii) Supplier having the sole and exclusive right to control the defense and settlement of the claim, and (iii) Customer providing all reasonable assistance (at Supplier’s expense and reasonable request) in the defense of such claim. In no event shall Customer settle any claim without Supplier’s prior written approval. Customer may, at its own expense, engage separate counsel to advise Customer regarding a Claim and to participate in the defense of the claim, subject to Supplier’s right to control the defense and settlement.
Mitigation. If any claim which Supplier is obligated to defend has occurred, or in Supplier’s determination is likely to occur, Supplier may, in its sole discretion and at its option and expense (a) obtain for Customer the right to use the Service, (b) substitute a functionality equivalent, non-infringing replacement for such the Service, (c) modify Service to make it non-infringing and functionally equivalent, or (d) terminate this Agreement and refund to Customer any prepaid amounts attributable to the period of time after the date Customer becomes unable to use the Service, as reasonably determined by Supplier.
Exclusions. Notwithstanding anything to the contrary in this Agreement, the foregoing obligations shall not apply with respect to a claim of infringement if such claim arises out of (i) Customer Content, (ii) use of the Service in combination with any software, hardware, network or system not supplied by Supplier where the alleged infringement relates to such combination, (iii) any modification or alteration of the Service other than by Supplier, (iv) Customer’s continued use of the Service after Supplier notifies Customer to discontinue use because of an infringement claim, (v) Customer’s violation of applicable law, (vi) Third Party Offerings, or (vii) Customer System.
Sole Remedy. THE FOREGOING STATES THE ENTIRE LIABILITY OF SUPPLIER WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE SERVICE OR OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF SUPPLIER WITH RESPECT THERETO.
Customer Indemnity. Customer shall defend Supplier and its licensors and their respective officers, directors and employees (“Supplier Indemnified Parties”) from and against any and all Third-Party Claims which arise out of or relate to: (a) the Customer Content, including, without limitation, any claim or threat that the Customer Content (and the exercise by Supplier of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights or other rights or that the Customer Content constitutes false advertising or is defamatory; (b) Customer’s use or alleged use of the Service other than as permitted under this Agreement; (c) Customer’s use or alleged use of any Third Party Offerings or Supplier’s use or alleged use of any Third Party Offerings on Customer’s behalf; (d) any breach of this Agreement by Customer; (e) any violation of Customer of applicable law; or (f) arising from the occurrence of any of the exclusions set forth in Section 9.1(c). Customer shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the third party bringing any such Third-Party Claim. Customer’s obligations under this Section are conditioned upon (x) Customer being promptly notified in writing of any claim under this Section, (y) Customer having the sole and exclusive right to control the defense and settlement of the claim, and (z) Supplier providing all reasonable assistance (at the Customer's expense and reasonable request) in the defense of such claim. In no event shall Supplier settle any claim without Customer’s prior written approval. Supplier may, at its own expense, engage separate counsel to advise Supplier regarding a Third-Party Claim and to participate in the defense of the claim, subject to Customer’s right to control the defense and settlement.
Confidential Information. “Confidential Information” means any and all non-public technical and non-technical information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to this Agreement, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information, including but not limited to: (a) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (b) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information; and (c) proprietary or confidential information of any third party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business. Confidential Information of Supplier shall include the Service, the Documentation, and pricing and other terms and conditions of this Agreement. Confidential Information also includes all summaries and abstracts of Confidential Information.
Non-Disclosure. Each party acknowledges that in the course of the performance of this Agreement, it may obtain the Confidential Information of the other party. Subject to Section 11.3 (Anonymized Statistics), the Receiving Party shall, at all times, both during the term of this Agreement and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it, and the Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under this Agreement. Each party agrees to secure and protect the other party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such party’s own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees or other agents who are permitted access to the other party’s Confidential Information to satisfy its obligations under this Section. Subject to Section 11.3 (Anonymized Statistics), the Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees and agents who need access to such Confidential Information in order to effect the intent of this Agreement and who are subject to confidentiality obligations at least as stringent as the obligations set forth in this Agreement.
Exceptions to Confidential Information. The obligations set forth in Section 10.2 (Non-Disclosure) shall not apply to the extent that Confidential Information includes information which: (a) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of this Agreement or any obligation of confidentiality by the Receiving Party. Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
Service. As between Supplier and Customer, all right, title and interest in the Service and any other Supplier materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer regarding the Service, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Supplier or Supplier’s licensors and providers, as applicable. Additionally, Customer shall promptly respond to any questions that Supplier may have regarding such Feedback or to any other questions Supplier may have regarding Customer’s use of the Service. Customer hereby does and will irrevocably assign to Supplier all evaluations, ideas, feedback and suggestions made by Customer to Supplier regarding the Service (collectively, “Feedback”) and all Intellectual Property Rights in the Feedback.
Customer Content. Customer hereby grants to Supplier a worldwide, nonexclusive, perpetual, irrevocable, royalty-free, fully paid-up, unlimited, sub-licensable (including through multiple tiers of sublicensees) license to use, reproduce, prepare derivative works of, display, perform and distribute the Customer Content for any and all purposes. Customer represents, warrants, and covenants that Customer owns or otherwise has all rights and permissions necessary to grant all relevant rights and permissions to Supplier with respect to such Customer Content. To the extent that receipt of the Customer Content requires Supplier to utilize any account information from a third party service provider, Customer shall be responsible for obtaining and providing relevant account information and passwords. As between Supplier and Customer, the Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content. If Supplier identifies any Customer Content that is inaccurate or contains errors (e.g. the incorrect spelling of a city name or a wrong zip code), Supplier may (but is not required to), in addition to its other available rights and remedies, modify the Customer Content to render it true.
Anonymized Statistics. Notwithstanding anything in this Agreement to the contrary, during and after the term of this Agreement, Supplier is free to use and disclose data and information relating to Customer’s use of the Service in any aggregated or de-identified form (“Anonymized Statistics”). As between Supplier and Customer, all right, title and interest in the Anonymized Statistics and all Intellectual Property Rights therein, belong to and are retained solely by Supplier. Customer acknowledges that Supplier will be compiling Anonymized Statistics based on Customer’s usage and usage of the Service by other customers. Without limiting the foregoing, Customer agrees that Supplier may (a) make Anonymized Statistics publicly available, (b) disclose Anonymized Statistics to third parties, and (c) use Anonymized Statistics for any purpose, including any analysis, service enhancement or marketing.
Supplier Developments. All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of Supplier, whether solely or jointly (“Supplier Developments”) and all Intellectual Property Rights therein, shall remain the sole and exclusive property of Supplier.
LIMITATION OF LIABILITY
No Consequential Damages. NEITHER SUPPLIER NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUPPLIER OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE SERVICE, OR THE RESULTS THEREOF. SUPPLIER WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
Limits on Liability. NEITHER SUPPLIER NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE AMOUNTS PAID BY CUSTOMER TO SUPPLIER UNDER THIS AGREEMENT DURING THE PERIOD OF 12 MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.
Essential Purpose. CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 12 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
TERM AND TERMINATION
Term. This Agreement shall commence on the Effective Date and, unless terminated sooner in accordance with the terms of this Agreement, shall continue for the initial term set forth in the Order Form. After the initial term, this Agreement will automatically renew for additional renewal terms, each of the length set forth in the Order Form, unless either party gives the other party notice of its intent not to renew at least 30 days prior to the end of the initial term or the then current renewal term. Termination will be effective at the end of the applicable term in which such notice is received.
Termination for Cause. A party may terminate this Agreement upon written notice to the other party in the event the other party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of this Agreement and does not remedy such breach within thirty (30) days after receipt of written notice of such breach. Upon any termination for cause by Customer, Supplier shall refund to Customer any prepaid amounts attributable to the period of time after the termination date, as reasonably determined by Supplier. Upon any termination for cause by Supplier, the Customer shall pay any unpaid fees covering the remainder of the term of this Agreement after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Supplier for the period prior to the effective date of termination.
Effects of Termination. Upon expiration or termination of this Agreement, (a) Customer’s use of and access to the Service shall cease, and (b) all fees and other amounts owed to Supplier shall be immediately due and payable by Customer.
Survival. The termination or expiration of this Agreement for any reason shall not affect a party’s rights or obligations that expressly or by their nature continue and survive (including, without limitation, the payment terms and the provisions concerning ownership, confidentiality, limitation of liability, indemnity and warranty disclaimers).
Notices. Supplier may give notice to Customer by means of a general notice through the Service interface, electronic mail to Customer’s email address on record with Supplier, or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to Customer’s address on record with Supplier. Customer may give notice to Supplier by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to Supplier, 2815 Camino Del Rio S. #300, San Diego, CA 92108, Attention: Enterprise Support. Notice shall be deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
Governing Law. This Agreement and the rights and obligations of the parties under this agreement shall be governed by and construed under the laws of the United States and the State of California as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The parties further agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (UCITA), or any version thereof, adopted by any state of the United States in any form.
Dispute Resolution, Binding Arbitration, and Class Action Waiver. Any controversy or claim between Customer and Supplier arising out of or relating to: (a) this Agreement, or the breach thereof, or (b) Customer’s access to or use of the Service, or (c) any alleged violation of any federal or state or local law, statute or ordinance (each such controversy or claim, a “Claim”), shall be resolved exclusively by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, with the arbitration to be held in San Diego County, California, USA. Customer hereby consent to the exclusive jurisdiction of the state and federal courts located in San Diego County, California, USA to enforce this agreement for Dispute Resolution, Binding Arbitration, and Class Action Waiver. However, judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Claims shall be heard by a single arbitrator. Arbitrations shall be held in San Diego County, California but the parties may choose for themselves whether to appear in person, by phone, or through the submission of documents. The arbitration shall be governed by the Federal Arbitration Act and by the internal laws of the State of California, without regard to conflicts of laws principles. The prevailing party shall be entitled to an award of reasonable attorneys’ fees. In arbitration, the parties give up their right to have their Claim decided by a judge or jury, and their Claim is instead decided by an arbitrator. Discovery rights and appellate rights in arbitration are more limited than in court. The arbitrator shall issue a reasoned award in writing, including all findings of fact and law upon which the award was made. CUSTOMER AND SUPPLIER AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED OR REPRESENTATIVE PROCEEDING. UNLESS BOTH CUSTOMER AND SUPPLIER AGREE OTHERWISE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. IF A CLAIM IMPLICATES THIS SECTION, AND IF THIS SECTION IS FOUND TO BE INVALID, UNENFORCEABLE OR ILLEGAL BY A COURT OF COMPETENT JURISDICTION, THEN SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR. NOTWITHSTANDING THE FOREGOING, IF ANY CLAIM IS NOT SUBJECT TO ARBITRATION, CUSTOMER AGREE TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN SAN DIEGO COUNTY, CALIFORNIA, WHICH IS THE PLACE OF PERFORMANCE OF THIS AGREEMENT. Notwithstanding the above, nothing in this Agreement shall be deemed as preventing a party from seeking injunctive relief (or any other provisional remedy) from any court having jurisdiction over the parties and the subject matter of the dispute as necessary to protect that party’s name, proprietary information, trade secrets, know-how, or any other intellectual property or proprietary rights. Supplier’s suppliers and licensors are third party beneficiaries with respect to this Section regarding the Dispute Resolution, Binding Arbitration, and Class Action Waiver
Publicity. Supplier has the right to reference and use Customer’s name and trademarks and disclose the nature of the Service provided hereunder in each case in Supplier business development and marketing efforts, including without limitation Supplier’s website.
Export. The Service utilizes software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Supplier and its licensors make no representation that the Service is appropriate or available for use in other locations. None of the Customer Content, nor any information acquired through the use of the Service, is or will be used by Customer for nuclear activities, chemical or biological weapons, or missile projects.
Anti-Corruption; OFAC. Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of Supplier in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, it will use reasonable efforts to promptly notify Supplier. Customer represents and warrants to Supplier that none of (a) Customer, (b) each person or entity owning an interest in any of them nor (c) their respective personnel are (x) currently identified on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, U.S. Department of the Treasury (“OFAC”) nor on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation, and (y) a person or entity with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States.
Waiver. No term or provision of this Agreement shall be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of a breach by either party, whether express or implied, shall constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
Severability. If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.
Assignment. Customer may not assign its rights or delegate its obligations under this Agreement to any third party, whether voluntarily or by operation of law or otherwise (including in connection with any merger or acquisition involving Customer), without the prior written consent of Supplier, such consent not to be unreasonably withheld, and subject to Customer paying any applicable transfer or set-up fees. Any purported assignment or transfer in violation of this section shall be void. Subject to the foregoing restrictions, this Agreement will bind and benefit the parties and their successors and permitted assigns.
Relationship of the Parties. Supplier is an independent contractor to Customer. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf.
Attorneys’ Fees. In any action to enforce this Agreement, the prevailing party shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.
Force Majeure. Except for Customer’s payment obligations, neither party shall be liable for any failure or delay in performance under this Agreement due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement); or any other event beyond the reasonable control of the party whose performance is to be excused.
Entire Agreement. This Agreement, including the Order Form and all documents referenced herein, constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.
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