SELLIGENT, INC.SUBSCRIPTION AND SERVICES AGREEMENT
PLEASE READ THIS SUBSCRIPTION AND SERVICES AGREEMENT CAREFULLY BEFORE USING ANY OF THE SERVICES AVAILABLE AT WWW.SELLIGENT.COM (the “Site“) OR OFFERED BY OR ON BEHALF OF SELLIGENT, INC. OR ITS AFFILIATES. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICES.
This Subscription and Services Agreement (the “Agreement“, as modified from time to time in accordance with the terms of this Agreement) is a legal agreement between You (“Customer”, “You”, “Your”) and Selligent, Inc. (“Selligent” or “Company”) (each a “party” and collectively the “parties”) and deﬁnes the terms and conditions under which You are allowed to use the Services (as defined below).
This Agreement takes effect on the earliest of You: 1) creating an account for use of the Services while being presented a link to this Agreement; 2) executing or electronically accepting an Ordering Document referencing this Agreement; or 3) using the Services (the earliest of the foregoing being the “Effective Date”). If You enter into this Agreement or acquire the Services on behalf of an entity, You represent and warrant that You have the authority to accept this Agreement on the entity’s behalf.
In order to use the Services, You must:
be at least 18 years old;
complete the registration process;
agree to this Agreement; and
provide true, complete, and up to date contact information.
By using the Services, You represent and warrant that You meet all the requirements listed above. Company may refuse to provide You with the Services, suspend or close Your account, and change eligibility requirements at any time in accordance with the terms of this Agreement.
1. Definitions. In addition to terms defined elsewhere in this Agreement, the following definitions will apply to capitalized words in this Agreement:
“Affiliate” of a party means any entity that directly or indirectly controls, is controlled by, or is under common control of that party. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the entity or the right to receive more than 50% of the profits or earning of the entity.
“API Connector/Integration” means any Web-based, on-demand and/or downloadable software that permits the connection and/or interoperation of a third party service/application with the Services.
“Beta Features” mean services and/or features available to Users for use which are still in their beta stage and have not been fully tested.
“Customer’s Account” means the Web-based account provided by Company to Customer that enables Users to use the Subscription Services which is accessible to Users via usernames and passwords created and/or assigned by Customer.
“Customer Content” means, excluding the Services, any and all information, data, text, software, photographs, graphics, video, messages, tags and/or other materials and content, that Users post, upload, share, submit, store or otherwise provide or make available through or using the Services.
“Custom Works” means, any custom designs, projects, or other works, including Deliverables, created by Company for, or on behalf of, Customer by Company; provided Custom Works specifically exclude the Services, Generic Tools, and any Pre-Existing IP.
“Deliverables” means any outputs specifically defined in an SOW and characterized as “Deliverables” that will be provided by Company to Customer, provided Deliverables expressly exclude the Services and any Pre-Existing IP.
“Generic Tools” means coding, programming techniques, designing techniques, architecture, trade secrets, methodology, APIs, functions, applications, knowledge, experience, skills, templates, other know-how and related Intellectual Property Company uses to provide the Services.
“Intellectual Property Rights” means any and all patents, inventions, copyrights, moral rights, trademarks, domain names, trade secrets, know-how, software, and any other form of intellectual property and/or proprietary rights recognized in any jurisdiction whether existing now or acquired hereafter including any application or right to apply for registration of any of these rights.
“Law(s)” means any and all applicable laws, regulations, statutes, rules, orders and other requirements of any governmental authority, including, but not limited to, where applicable, the 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 (the, “General Data Protection Regulation” or “GDPR“) and the Data Protection Act 2018 (“UK DPA”). Where relevant to the Customer’s or User’s obligations, when assessing “applicability”, Customer and User shall take into account the Governing Law in this Agreement and the Laws relating to both the jurisdiction where User is using the Services and the jurisdiction where the Contact resides.
“Order Term” means the period specified in an Ordering Document (including any renewals of the same) during which Users will have access to the Services.
“Ordering Document” means any form provided by Company (including an electronic form or SOW), either executed by the parties or agreed to by the Customer via the Site, that sets out the commercial terms of Customer’s purchase of the Services. All Ordering Documents will be deemed to incorporate, and will be subject to and governed by, this Agreement.
“Pre-existing IP” means any Intellectual Property Rights in materials and/or information (including, but not limited to, algorithms, methods, forms, software, software components in source or object code form) that is owned by, licensed to, or in the possession of Company either: 1) on or prior to the creation of the Custom Work; or 2) after the commencement of the Custom Work but not specifically created as a part of the Custom Work, including any enhancements, improvements, and modifications to any of the foregoing in 1) or 2), whether created prior to or after the Effective Date. Notwithstanding the foregoing, Pre-Existing IP expressly excludes the content, logos, graphics, photos, images or text of any type provided by Customer and included in Custom Works at Customer’s request.
“Professional Services” means services, other than the Software, provided by Company staff including, but not limited to, Specialized Support Services, onboarding services, support services, provision and/or creation of any Custom Works, and /or Customer-specific customizations.
“Services” means the Software, Professional Services, Pre-Existing IP, Statistical Data, products, services, applications, tools and other resources provided or made available by Company or accessible at the Site (or other website(s) owned by Company), including any applicable support services, manuals, documentation and related material, and all related service names, logos, design marks, slogans, and all other material comprising the Software, Professional Services, and Pre-Existing IP, but excluding any Customer Content and Custom Works.
“Software” means the Subscription Services, Site, and any software provided by Company and/or its Subcontractors, including, but not limited to, software development kits, other software code supplied by Company to Customer that allows for integration of the Services into Customer’s websites or mobile applications, and any related updates or modifications provided by Company from time to time.
“Specialized Support Services” means (i) projects involving excessive or non-standard involvement by Company staff as determined by Company in its sole discretion; and/or (ii) projects requiring functionality that is not available via the User interface.
“Statement of Work” or “SOW” means a document entitled “SOW” or “Statement of Work” that: 1) expressly incorporates this Agreement; 2) is issued or provided by Company; and 3) executed by the parties.
“Statistical Data” means aggregated and anonymized statistical and performance information based on and/or related to Customer’s use of the Services, which does not contain any personally identifying information and is compiled using a sample size large enough to ensure the underlying data cannot be attributed to Customer.
“Subcontractor” means a service provider engaged by Company that provides a part of the Services.
“Subscriber” or “Contact” (used interchangeably in this Agreement and the incorporated documents) means, other than Users, any identified or identifiable natural person: 1) whose information is stored, transmitted, or otherwise ‘processed’ (as defined by the GDPR) via the Services by Customer; and/or 2) to whom Customer sends, transmits, or otherwise engages with via the Services.
“Subscription Plan” means the subscription type (including applicable volume limits) chosen by the Customer on an Ordering Document which sets out the base set of Services ordered by the Customer. Different Subscription Plans have different Services associated with them.
“Subscription Services” means the web-based application(s) available to the Customer via the Site.
“Third Party Services” means any software, products, tools, applications, or services that may be used in connection with the Services that are not owned by Company or its Affiliates.
“User” means any person, other than Company employees or agents engaged in providing Professional Services to Customer, accessing and/or using the Services through Customer’s Account.
2. AGREEMENT STRUCTURE
Other Incorporated Documents. This Agreement, together with its incorporated documents and any Ordering Documents and/or SOWs referencing this Agreement, constitutes the entire agreement between Customer and Company regarding the Services and supersedes all prior and contemporaneous agreements, representations, and understandings, whether written or oral, concerning its subject matter and governs Company’s provision of and Customer’s receipt of the Services. Each Ordering Document hereby incorporates the (a) the Acceptable Use Policy available at www.selligent.com/acceptable-use-policy-NA/ (hereinafter, “AUP”); and (b) the Support and Service Level Agreement available at https://www.selligent.com/legal-SLA-NA (hereinafter, “SLA”); each extant upon the start date of such Ordering Document.
Order of Precedence. In the event of any conflict between the terms of this Agreement and the other incorporated documents, the conflict will be resolved in favor of the Agreement unless: 1) the conflicting term is expressly stated to vary the conflicting provision of the Agreement; 2) the Agreement specifically provides that another document may vary the applicable term of the Agreement; or 3) the parties expressly agree in writing otherwise.
Agreement Modifications. This Agreement was last modified on the date listed at the end of this Agreement (“Last Modified Date”). Company may make modifications to this Agreement by posting a revised Agreement on the Site and/or by sending an email to the last email address provided by Customer to Company. Customer acknowledges and agrees that use of the Services by Customer after the Last Modified Date constitutes Customer’s acceptance of the modified terms, that such modified terms will become effective on the Last Modified Date, and that it is Customer’s responsibility to check this website regularly for modifications to this Agreement. Any term or condition in any purchase order or other document provided by Customer to Company will be null, void, and of no legal force or effect unless it is made pursuant to an amendment to this Agreement and signed by an authorized representative of the Company.
Access. On or as soon as reasonably practicable after the Effective Date and subject to Customer’s payment of the fees set forth in the Ordering Document, Company will provide Customer with access to Software ordered pursuant to such Ordering Document.
Prerequisite to Use of Software. Customer is responsible for obtaining all hardware, software and services necessary to access the Software. Customer will ensure that any User using the Services has followed the on-line training made available by Company and is properly certified, or has been properly trained by Company-certified trainers (subject to applicable training fees).
Right to Access and Use Software. Subject to the terms and conditions of this Agreement, Company grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Software ordered pursuant to an Ordering Document during the Order Term, solely for Customer’s internal business purposes (unless otherwise expressly agreed by Company) and in accordance with the limitations (if any) set forth in the Ordering Document, the AUP and this Agreement. This Agreement is not intended to nor does it provide any license rights to the Software. Company is not obligated to provide, and Customer acquires no right of any kind with respect to, any source code for the Software.
Restrictions. Except as otherwise expressly permitted by this Agreement, Customer is not authorized to resell, assign, sublicense, transfer, pledge, lease, rent, copy, modify, re-package (unless otherwise expressly agreed by Company), reverse-engineer or disassemble the Services or share its rights under this Agreement. Customer’s use of the Services confers no title or ownership in the Services and is not a sale of any rights in the Services. All ownership rights to the Services remain in Company or its third party suppliers, as applicable.
Modification of the Services. Company, in its sole discretion, reserves the right to modify the Services, or any features of the Services at any time and for any purpose, including but not limited to, improving performance or quality, correcting errors, or maintaining competitiveness. Such modifications, when delivered, shall become part of the Services and shall be subject to all of the terms of this Agreement.
Beta Features. From time to time, Company may make Beta Features available to Customer. Customer may choose to use such Beta Features in Customer’s sole discretion. Company may modify or discontinue Beta Features at any time in Company’s sole discretion. Customer understands and agrees that Company may never make Beta Features generally available. Company will have no liability for any harm or damage arising out of or in connection with a Beta Feature, including, without limitation, Customer’s access thereto or use thereof.
Free Trials. Company may make some or all of the Services available on a limited, non-exclusive, non-transferable, revocable, free trial basis for evaluation purposes only. COMPANY MAY TERMINATE FREE TRIAL ACCOUNTS OR ANY FEATURES OF THE SERVICES OFFERED PURSUANT TO A FREE TRIAL AT ANY TIME IN COMPANY’S SOLE DISCRETION WITH NO OBLIGATIONS TO CUSTOMER OR THE USER OF SUCH ACCOUNT.
Professional Services Terms.
Requesting Professional Services.Only named Users in Customer’s Account (a User using an email with their name), may request Professional Services. No generic or role-based email aliases may be used to request Professional Services. If an individual using a named User’s credentials requests Professional Services, Company shall treat that individual as the named User and provide them with Professional Services. Specialized Support Services will always require, at minimum: a) an email from the Company with a description of the Specialized Support Services to be provided to Customer; and subsequently, b) an email from the Customer confirming the Specialized Support Services.
Customer Cooperation. Customer acknowledges that its timely provision of responses, assistance, cooperation, complete and accurate information and data from its officers, agents, and employees, and suitably configured computer products (collectively, “Cooperation”) are essential to the performance of any Professional Services, and that Company will not be liable for any deficiency in performing Professional Services if such deficiency results from Customer’s failure to provide full Cooperation.
Custom Works. In the course of providing the Professional Services, Company may create Custom Works for Customer. Other than any Pre-Existing IP incorporated, embedded, or integrated into the Custom Works, Customer owns all right title and interest in the Custom Works. Company hereby grants to Customer a worldwide, non-exclusive license to use the Pre-Existing IP solely in conjunction with, and to the extent incorporated in an unmodified version of the Custom Works. Customer shall not, and shall not allow any employee or third party to copy, reverse-engineer, modify, improve, create derivative works of or use the Pre-Existing IP in any way outside of the Custom Works as delivered by Company to Customer. In the event that any Customer employee or third party on Customer’s behalf or at Customer’s request or direction modifies, improves or creates derivative works of the Pre-Existing IP, whether or not in violation of this Agreement, Customer shall cause all right, title and interest in and to such modifications, improvements and/or derivative works to be assigned to Company and will sign (or cause to be signed) all further documents necessary to effect such assignment.
Generic Tools. Company may use its Generic Tools when providing the Services to Customer. Company and/or its Subcontractors own all rights, title, and interests in and to such Generic Tools. For clarity, any API Connector/Integrations built by, for, or on behalf Company are hereby expressly considered Generic Tools and at no point will any API Connector/Integrations be considered Custom Works or Deliverables.
Customer Definition of Requirements. Where Customer engages Company to provide any Custom Works, Customer represents and warrants that Custom Works, as developed in accordance with the instructions and requests of Customer, do not infringe the Intellectual Property Rights or any other rights of any third party. Customer is solely responsible for review of any Custom Works to ensure they do not violate or infringe a third party’s privacy rights, Intellectual Property Rights, or any other rights. Customer acknowledges and agrees that the provision of the Professional Services does not constitute any assumption of risk related to the Custom Works by Company.
Expenses. Customer shall pay for all travel expenses, fees, and out of pocket expenses incurred by Company in providing the Services, provided that Customer approves such expenses in advance in writing.
Reselling the Services. To the extent Company provides prior express written consent to Customer to resell the Services to its clients (each an “End Client”), Customer:
agrees to procure that End Client abide by terms substantially similar to the AUP and Sections 4 (Third Party Services), 6 (Intellectual Property), 7 (Confidentiality, Security, & Privacy), and 8.B (Customer Warranties), and 8.C (Use of Tracking Technology) of this Agreement and further Customer acknowledges and agrees that Customer shall be liable for any failure by End Client to abide by the foregoing;
agrees to procure that End Client abide by terms at least as protective of Company as those in this Agreement;
agrees to resolve all disputes occurring within its account;
acknowledges and agrees that Company’s permission to allow resale of its Services does not diminish Company’s right to provide an acceptable use policy directly to the End Clients and/or enforce the terms of this Agreement against such End Client, including, without limitation, Company’s right to suspend or terminate access to the Services at any time, irrespective of any impact on Customer or End Client and without liability to Customer or End Client; and
acknowledges and agrees that Company may, in its sole discretion, revoke Customer’s permission to resell the Services at any time.
4. THIRD PARTY SERVICES. If Customer enables, installs, connects, or provides access to any Third Party Services for use with the Services, Customer hereby:
acknowledges and agrees that access to and use of such Third Party Services are governed solely by the terms and conditions of such Third Party Services, and Company does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Third Party Services, including, without limitation, their content or the manner in which they handle, protect, manage or process data (including Customer Content), any interaction between Customer and the provider of such Third Party Services, or their continued availability;
permits: (i) transmission of Customer Content to such Third Party Service at Customer’s direction; and (ii) such Third Party Services to access the Customer Content at Customer’s direction;
grants to Company and its Subcontractors all rights necessary to enable Company and its Subcontractors to provide the Services as it relates to any data transmitted from such Third Party Services to the Services and Customer represents and warrants that doing do so will not violate Laws or any third party’s (including any provider of such Third Party Services) privacy, Intellectual Property Rights, or other rights;
agrees that Company is not liable for: (i) damage or loss caused or alleged to be caused by or in connection with Customer’s enablement, access, or use of any Third Party Services, or (ii) Customer’s reliance on the privacy, data security, or other practices of such Third Party Services; and
agrees to comply with reasonable requests by Company to remove any connections to or from other websites and/or applications to the Services which Customer installs.
5. PAYMENT TERMS
Fees. Customer shall pay all fees specified in all Ordering Documents for the entirety of the Order Term (and any renewals thereof) in accordance with Customer’s Ordering Document. Except as otherwise specified in herein or in an Ordering Document: (a) fees are based on the Services ordered pursuant to an Ordering Document; (b) payment obligations are non-cancelable and fees paid are non-refundable; and (c) quantities purchased cannot be decreased during the relevant Order Term. If Customer exceeds the limits of its Subscription Plan or Ordering Document, Company may charge Customer overage fees for such excess usage.
Late Payment. If any amount due is not received by the due date, then without limiting Company’s rights or remedies, Company may apply a late fee 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.
No Refunds. Except as otherwise provided in this Agreement or required by Law, Company will not provide refunds or credits for partial or unused periods of service.
Disputing Charges. Any dispute to a charge on Customer’s invoice must be made in writing with specificity within 60 days after the date of the invoice that initially contained the disputed charge.
6. INTELLECTUAL PROPERTY
Customer’s Property. By using the Services, submitting any Customer Content through the Services, or providing any Customer Content to Company, Customer hereby grants Company and its Subcontractors a worldwide, non-exclusive, royalty-free, fully paid, sublicensable and transferable license to process, store, modify, combine, reproduce, distribute, display, publicly perform, publicly display, host, communicate, and prepare derivative works of the Customer Content in connection with the Services for the duration of the Agreement and until such time as Customer requests deletion of the Customer Content. For clarity, the foregoing license granted to Company and its Subcontractors, does not affect Customer’s ownership or license rights in its Customer Content (excluding any Pre-Existing IP) unless otherwise agreed in writing. Customer represents and warrants that Customer has all rights to grant such licenses to Company and its Subcontractors without infringement or violation of moral rights or any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other Intellectual Property Rights.
User Data.In addition, while using the Services, Customer and/or Users may provide information (such as a User’s name, contact information, and/or other registration information) to Company. Customer represents and warrants that it has complied with all Laws (including, as appropriate, with respect to providing any necessary notices and obtaining any necessary consents) to permit Company to use this information and any technical information about User’s use of the Services for the limited purposes of tailoring the user experience of the Services to the User, facilitating Users’ use of the Services, and communicating with Customer and/or a User. Further, Customer represents and warrants that it has taken necessary steps, in compliance with Law, to ensure that Company may use such information to identify and understand trends in the various interactions with Company’s Services and to conduct internal business analysis based on meta-data about usage, feature adoption and forecasting, on an anonymized, aggregated basis.
Company’s Property. Customer acknowledges and agrees that all rights, title and interest in and to Services are the exclusive property of Company or its affiliates, licensors or suppliers. Unless stated otherwise, Company and its licensors retain all Intellectual Property Rights in and to the Services, including, without limitation, all logos, graphics, software, algorithms, functionality and content (other than Customer Content) included in or comprising the Services. All rights not expressly granted herein are reserved by Company.
Statistical Data. Notwithstanding anything to the contrary in this Agreement, and consistent with the activities described in the Privacy Notice, Company may monitor, analyze, and compile Statistical Data. Customer agrees that Company may make such Statistical Data publicly available. Company and/or its licensors own all right, title and interest in and to the Statistical Data and all related software, technology, documentation, and content provided in connection with the Statistical Data, including all Intellectual Property Rights in the foregoing.
Feedback. Customer may provide feedback, suggestions, and comments to Company regarding the Services (“Feedback”). Customer hereby grants to Company a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, display, perform, prepare derivative works, and otherwise fully exploit such Feedback in any medium or format, whether now known or later developed.
Publicity. Unless otherwise agreed by the parties in writing, Customer hereby agrees that Company may reference Customer in marketing and public relations materials, including a press release announcing Customer as a customer. Customer hereby grants Company a nonexclusive, worldwide license to use and display Customer’s trademarks, trade names and logos in connection with the foregoing.
7. CONFIDENTIALITY, SECURITY, & PRIVACY
Confidential Information. The parties acknowledge that in the course of performing their obligations under this Agreement, a party receiving information (a “Recipient”) from a party disclosing information (a “Discloser”) that is either clearly marked as “confidential” or is nonpublic information that, under the circumstances surrounding the disclosure, a reasonable person would conclude should be treated as confidential (“Confidential Information”). Recipient covenants and agrees that neither it nor its agents, employees, officers, directors or representatives will disclose or cause to be disclosed any Confidential Information of the Discloser, except (a) to those employees, representatives, or contractors of the Recipient who require access to the Confidential Information to perform its obligations or exercise its rights under this Agreement and who are bound by confidentiality obligations no less strict than those set forth in this Agreement, or (b) as such disclosure may be required by Law, subject to and to the extent permitted by Law, the Recipient providing to the Discloser written notice to allow the Discloser to seek a protective order or otherwise prevent the disclosure. Notwithstanding the foregoing, nothing in this Agreement will prohibit or limit the Recipient’s use of information: (i) previously known to it without breach or obligation of confidence, (ii) independently developed by or for it without use of or access to the Discloser’s Confidential Information, (iii) acquired by it from a third party that was not under an obligation of confidence with respect to such information at the time of disclosure, or (iv) that is or becomes publicly available through no breach of this Agreement.
Protection of Customer Content. Without limiting the above, Company shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Customer Content. Company shall not modify or access the Customer Content except as required to provide the Services, prevent or address service or technical problems, at Customer’s request in connection with support matters, or as otherwise provided in this Agreement, the Privacy Notice, or in written instructions from the Customer.
Login Credentials & User Passwords. User login credentials must be kept up-to-date and attributable to named individuals within Customer’s Account (generic email aliases may not be used).User login credentials cannot be shared or used by more than one User. Customer is solely responsible for keeping Customers’ and/or Users’ account name, password, and any other login credentials confidential. Customer is responsible for any and all activities that occur within Customer’s Account, whether authorized by Customer or not. Customer must notify Company immediately of any unauthorized access or use of Customer’s Account. Company will not be held responsible or liable for any losses due to lost or otherwise compromised passwords.
Privacy Notice. Notwithstanding anything to the contrary in this Agreement, the Privacy Notice explains how Company handles Customer Content and other data processed by the Services. Customer agrees to publish its own privacy notice or policy that complies with Law and takes into account the processing activities it has engaged Company to provide. For more information on how personal data is handled in connection with the Services, as well as information on rights to access, correct and lodge a complaint regarding the handling of personal data, please refer to the Privacy Notice.
Sensitive PII. Customer understands and acknowledges that the Services are not configured to process, receive, and/or store Sensitive PII. “Sensitive PII” means: (a) protected health information (“PHI”), as that term is defined under the Health Insurance Portability and Accountability Act (“HIPAA”); (b) “nonpublic personal information” as defined under the Gramm-Leach-Bliley Financial Modernization Act of 1999 (“GLBA”); (c) data on any minor under the age of thirteen that would be subject to the Children Online Privacy Protection Act (“COPPA”); (d) card holder data under the Payment Card Industry Data Security Standard; (e) personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation (the “special categories of personal data” identified in Article 9 of GDPR); or (f) social security numbers, driver’s license or state identification number or other government related identifier, financial account numbers (i.e., credit card, checking account, savings account, etc.), medical, employment, criminal records, or insurance numbers, passport numbers, or other highly sensitive personally identifiable information. As such, Customer agrees not to, and not to permit Users to, transmit, request, provide Company with access to, submit, store, or include any Sensitive PII through the Services. Customer agrees that Company may terminate this Agreement immediately, without refund, if Customer is in violation of this clause.
EU Personal Data Transfer. In the event that User information or Customer Content includes the Personal Data of an EU Data Subject (as defined by the GDPR), Customer shall notify Company and the parties shall execute Company’s Data Protection Addendum (the “Data Protection Addendum”). Once executed, the Data Protection Addendum will be deemed wholly incorporated into this Agreement and will prevail over any conflicting terms in this Agreement.
Company Warranties. Company represents and warrants that: (a) Company shall make every reasonable attempt to ensure there is no material degradation of the Services during the Order Term; and (b) Professional Services shall be performed in a professional and workmanlike manner by qualified personnel.
Customer Warranties. Customer represents and warrants that it will comply with Laws applicable to the collection, use, and processing of data relating to an individual that it uploads or transmits to the Services or collects via the Services.
No Guarantee of Results.Customer understands and acknowledges that it is not possible to guarantee that the performance of the Services will be successful in producing any specific results. In particular, Customer further acknowledges that it is not possible for Company to warrant that the Professional Services guarantee a) high deliverability; b) high engagement with Customer Content; or c) a successful marketing campaign. Customer hereby acknowledges and agrees that Company will not be liable for the failure of the performance of the Services to generate any expected or useful results.
API Connector/Integration. Except to the extent expressly provided in the SLA, Company does not guarantee the continued availability of any API Connector/Integrations. Company may discontinue any API Connector/Integration at any time in its sole discretion. Customer should not make purchase decisions based on the availability of any such API Connector/Integration. Customer acknowledges and agrees that Customer may be able to use the connected application to access Customer Content in Customer’s account and/or transmit data out of Customer’s account. To the extent data is transmitted out of the Services, Company is not responsible for the privacy, security or integrity of that data.
Service Availability. From time to time, down-time, either scheduled or unscheduled, may occur in respect of the Services. Company will work to ensure the amount of down-time is limited. Customer acknowledges and understand that Company does not warrant that the Services will be uninterrupted or error free. Customer’s remedy in the event of Service deficiencies will be addressed in accordance with the SLA.
Advice. From time to time, Customer may obtain advice or information from Company help or support pages, white papers, and/or Company’s employees (collectively, “Advice”). Customer acknowledges and agrees that such Advice will not be deemed to constitute financial, legal or tax advice.
USE OF THE SERVICES AND ANY RELIANCE BY CUSTOMER UPON THE SERVICES, BETA FEATURES, OR ADVICE, INCLUDING ANY ACTION TAKEN BY CUSTOMER BECAUSE OF SUCH USE OR RELIANCE, IS AT CUSTOMER’S SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED, ACCURATE OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY OR GUARANTEE AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES, BETA FEATURES, AND ADVICE ARE PROVIDED “AS IS” AND TO THE MAXIMUM EXTENT PERMITTED BY LAW COMPANY DISCLAIMS ALL WARRANTIES, GUARANTEES, EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Customer Indemnity. Customer shall defend, indemnify and hold Company, its Affiliates and their respective officers, directors, shareholders, successors in interest, employees, and agents harmless from any claims, losses, damages, liabilities, settlements, and expenses (including, but not limited to attorneys’ fees) (collectively, “Claims”) by a third party related to, arising from, or connected with: (a) Customer’s or any User’s use of the Services; (b) Customer’s or any User’s breach of the AUP or any representation or warranty made by Customer herein or therein; (c) Custom Works and/or any Customer Content (including, without limitation, Claims alleging that the Custom Works and/or the Customer Content violates or misappropriates the Intellectual Property Rights or other rights of any third party); (d) Customer’s or User’s gross negligence or intentional misconduct; (e) an allegation of defamation or invasion of privacy by Customer or any User; and/or (f) any violation of Law by Customer or any User. Notwithstanding the foregoing, Customer shall not make any admissions on behalf of Company or settle any Claim without Company’s consent.
Company’s Right to Defend. Promptly upon learning of any Claim against Customer arising from or related to allegations that the Services violate or infringe a third party’s privacy or Intellectual Property Rights (a “Services Claim”), Customer shall give notice to Company of the Services Claim and immediately deliver to Company all original notices and documents (including court papers) received in connection with and/or related to the Services Claim. Company will have the exclusive right, but no obligation, to assume defense of such Services Claim at any time and at any stage. If Company assumes defense of any such Services Claim, Customer shall cooperate in the defense thereof as reasonably requested by Company. Upon assuming the defense of a Services Claim, Company may appoint any legal counsel selected by Company and settle any Services Claims on such terms and conditions that Company deems advisable. Customer agrees that upon Company’s assumption of the defense of the Services Claim: (a) Company will not be liable to Customer for any legal costs or expenses subsequently incurred by Customer in connection with the Services Claim; (b) such assumption is not an acknowledgment by Company that it is liable to indemnify Customer in respect of the Services Claim; and (c) it will not constitute a waiver by Company of any defenses it may assert against the Customer if Customer claims it is owed indemnification for such Services Claim. If, in Company’s sole opinion, any Claim related to, arising from, or connected with allegations that the Services infringe, violate or misappropriate a third party’s Intellectual Property Rights may have validity, then Company may modify the Services, or any part thereof, to make them non-infringing, non-violating or non-misappropriating, as applicable, procure any necessary license, or replace the affected item with one that is substantially functionally equivalent in all material respects. If Company determines in its sole opinion that none of these alternatives are reasonably available, then Company may terminate this Agreement, Customer will discontinue all use of the allegedly infringing Services, and Company will issue Customer a pro-rata refund of any prepaid fees for such Services based on the number of months remaining in the then-current Order Term.
11. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF OPPORTUNITY, LOSS OF ANTICIPATED SAVINGS, LOSS OF GOODWILL, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, COMPANY OR ITS AFFILIATES IS FOUND LIABLE TO CUSTOMER FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, IN NO EVENT COMPANY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE ORDERING DOCUMENT IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. CUSTOMER AGREES THAT COMPANY’S LIABILITY WILL BE REDUCED BY THE EXTENT, IF ANY, TO WHICH CUSTOMER CONTRIBUTED TO THE LOSS.
CUSTOMER ACKNOWLEDGES THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING THE SERVICES AVAILABLE TO CUSTOMER, AND THAT, IF COMPANY WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER.
12. TERM, TERMINATION, & SURVIVAL
Term. The term of this Agreement will commence on the Effective Date and, unless earlier terminated in accordance with this Agreement, will continue to apply to all Ordering Documents for the duration of such Ordering Documents and Customer’s obligations pursuant to this Agreement will continue to apply to any use of the Services by a User. Except as otherwise specified in the applicable Ordering Document or where prohibited by applicable Law, the Ordering Document and all non-expiring items added during the course of the Order Term, will automatically renew for additional periods equal in duration to the original Order Term or one year, whichever is shorter, unless either party gives the other notice of non-renewal at least 90 days before the end of the Order Term (or, if applicable, any renewal of the Order Term). The foregoing will not apply to any SOWs, which will terminate as stated therein.
Right to Suspend. Company may suspend Customer’s Account: (a) for non-payment or untimely authorization of payment; (b) at any time without notice for conduct that it believes, in its reasonable discretion, violates: i) this Agreement or other agreements or guidelines which may be associated with Customer’s use of the Services; or ii) any Laws applicable to Customer’s use of the Services. If Customer has not sent email from its account for more than one year, THE ACCOUNT AND ITS DATA MAY BE PERMANENTLY REMOVED FROM COMPANY’S DATABASE.
Termination. Either party may terminate this Agreement or any individual Ordering Document as follows: (a) for cause if the other party materially breaches this Agreement or an Ordering Document and does not remedy such breach within 30 days after its receipt of written notice of such breach; or (b) immediately if the other party: (i) terminates its business activities or becomes insolvent; (ii) admits in writing to the inability to pay its debts as they mature; (iii) makes an assignment for the benefit of creditors; or (iv) becomes subject to direct control of a trustee, receiver or similar authority. Customer agrees that Company will not be liable to Customer or to any third party for termination of this Agreement or Customer’s access to the Services resulting from any violation of this Agreement by Customer or any termination pursuant to the terms of this Agreement.
Effect of Termination. Upon expiration or termination of this Agreement: (a) Customer’s right to use the Services will cease, and Company will have no further obligation to make the Services available to Customer; (b) except as otherwise expressly stated herein, all rights granted to Customer under this Agreement will cease; (c) Customer will pay fees for the entire Order Term under all Ordering Documents in effect prior to the termination date, less any fees already paid pursuant to such Ordering Documents; and (d) Company may delete Customer Content and/or any archived data within 30 days after the date of expiration or any termination of this Agreement. Any statutory retention requirements with respect to Customer Content remains Customer’s responsibility.
Survival. The AUP and the following sections of this Agreement will survive any termination or expiration of this Agreement: 1 (Definitions), 2 (Agreement Structure), 3.D (Restrictions), 3.F (Beta Features), 3.H (Professional Services Terms), 4 (Third Party Services), 5 (Payment Terms), 6 (Intellectual Property), 7.A (Confidential Information), 7.D (Privacy Notice), 7.E (Sensitive PII), 7.F (EU Personal Data Transfer), 8.B (Customer Warranties), 8.C (Use of Tracking Technology), 9 (Disclaimers), 10 (Indemnification), 11 (Limitation of Liability), 12.D (Effect of Termination), 12.E (Survival), and 13 (General). Termination, cancellation, or completion of an Ordering Document or this Agreement will not relieve either party of any previously accrued obligations or of any obligations which by their nature are intended to survive termination, cancellation or expiration.
Interpretation. The headings in the Agreement do not affect its interpretation. References to sections are to sections of this Agreement. Any phrase introduced by the terms “including”, “include” and “in particular” or any similar expression shall be construed as illustrative only and shall not limit the sense of the words preceding these terms. In this Agreement, unless the context requires otherwise: the singular includes the plural and vice versa; the masculine includes the feminine and vice versa.
Force Majeure. Company will not be liable for any delays or failure in performance of any part of the Services due to any cause beyond Company’s control. This includes, but is not limited to, acts of God, changes to Laws, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, floods, strikes, power blackouts, and acts of hackers or third party internet service providers.
Notices. Notices to Customer will be effective when Company posts them to Customer’s Account or sends them to the email address associated with Customer’s Account. Notices to Company will be effective when delivered to [email protected].
Governing Law. The Laws of the State of New York, excluding its conflict of Laws rules, will apply to any and all disputes, controversies, or claims arising out of or relating to the Services or this Agreement (“Disputes”). The United Nations Convention on Contracts for the International Sale of Goods (the “Vienna Sales Convention 1980”) is excluded from this Agreement.
Disputes. CUSTOMER AND COMPANY AGREE THAT ANY DISPUTE AGAINST THE OTHER MAY ONLY BE BROUGHT ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. CUSTOMER AGREES TO WAIVE ANY RIGHT TO A JURY TRIAL AND/OR TO PARTICIPATE IN A CLASS ACTION AGAINST COMPANY. All Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) or JAMS (www.jamsadr.org) according to this provision and the applicable arbitration rules for that forum. Consumer claimants (individuals whose use of the Services is intended for personal, family, or household use) may elect to pursue their claims in their local small-claims court rather than through arbitration. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies. If Customer is a consumer bringing a claim relating to personal, household, or family use, any arbitration hearing will occur within the county or parish where Customer resides. Otherwise, any arbitration hearing will occur in New York City, or another mutually agreeable location. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. For purposes of this arbitration provision, references to Customer and Company also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized Users or beneficiaries of the Services.
Export Control. The Services made available by Company may be subject to export control Laws of the United Kingdom, United States and other jurisdictions. Customer shall comply with all applicable export Laws, and, without limiting the generality of the foregoing: (a) Customer represents that it is not named on any United Kingdom or United States government list of persons or entities prohibited from receiving exports; (b) Customer will not export or re-export, directly or indirectly, any Services or Company Confidential Information to any countries except as permitted under the export Laws of the United Kingdom and United States; and (c) Customer shall not permit Users to access or use Services in violation of any United Kingdom or United States export embargo, prohibition or restriction.
Anti-Corruption. Customer agrees that Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Company’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer hears of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Company’s Legal Department at [email protected].
Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by Customer, by operation of law or otherwise, without the prior written consent of Company. Any purported assignment in violation of the foregoing shall be null and void ab initio. This Agreement and/or any right or duty under this Agreement may be transferred by Company without the consent of Customer. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, joint venture, agency, or fiduciary relationship between the parties. Nothing in this Agreement confers or is intended to confer any rights or remedies on any person or entity which is not a party to this Agreement.
Non Solicitation. During the term of this Agreement, and for a period of one year thereafter, Customer shall not solicit for hire, on behalf of itself or any other organization, any personnel of the Company with whom Customer has had contact pursuant to the relationship established under this Agreement. If Customer violates this provision, Customer shall pay Company an amount equal to the aggregate compensation paid by Company to the solicited employee in the six months preceding Customer’s solicitation of such employee.
Waivers. Any waiver by Company must be in writing and signed by an authorized representative of the Company. No waiver by a party of any breach of this Agreement by Company shall be a waiver of any preceding or succeeding breach by Company. No failure or delay by Company in enforcing any right or provision under this Agreement shall be construed as Company’s waiver of such right or provision or of any other right or provision.
Severability. If any provision of this Agreement is held invalid, illegal or otherwise unenforceable, it shall be deemed modified to render it enforceable while preserving the parties’ original intent to the fullest extent, and the rights and obligations of the parties shall be construed and enforced accordingly. If the provision cannot be modified, then that provision will be deemed severed from this Agreement and all other provisions will remain in full force and effect.
Electronic Signatures. This Agreement and any Ordering Document may be executed in one or more counterparts, each of which when so executed and delivered or transmitted by facsimile, e-mail or other electronic means, shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument.