Terms & Conditions
1. This Subscription Agreement (this “Agreement”) is made and entered into between FollowAnalytics Inc. (“Vendor”) and the company or other legal entity identified on the Order Form (“Client”). This Agreement sets forth the terms pursuant to which Client will be permitted to use and receive access to certain the Services.
2. BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING THE SERVICES, CLIENT AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CLIENT” SHALL REFER TO SUCH ENTITY. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
3. DEFINITIONS. In addition to the terms defined elsewhere in the Agreement, the terms set forth in this Section 1 shall have the following meanings:
a. “Authorized Users” shall mean Client’s employees, consultants and contractors authorized by Client to access and use the Vendor Platform on its behalf, who have been supplied user identification and passwords by Client.
b. “Client Content” shall mean any content or materials, including without limitation, Client’s name, logos, trademarks and other identifying marks, provided by Client to Vendor for use in connection with the Services, excluding Client Data.
c. “Client Data” shall mean electronic data and information uploaded, generated or transmitted by or for Client or its End Users to the Services, excluding Client Content.
d. “Deliverables” deliverables specifically identified as deliverables in an Order Form, including the Client-operated mobile application.
e. “Documentation” means Vendor-provided user documentation, in all forms, relating to the Services.
f. “End User(s)” means Client’s end users who access and use the Client-operated mobile application.
g. “Non-Vendor Services” shall mean a web-based, mobile, offline or other software application functionality that interoperates with the Services, that is provided by Client or a third party.
h. “Order Form” shall mean an ordering document or online order specifying the Services and Deliverables to be provided hereunder that is entered into between Client and Vendor, including any addenda and supplements thereto. All Order Forms shall be deemed incorporated into the Agreement.
i. “Professional Services” shall mean any implementation, integration, consulting, training or other services provided by Vendor to Client, as set forth in an Order Form.
j. “Services” shall mean the products and services that are ordered by Client under an Order Form, including the Vendor Platform and Professional Services. “Services” excludes any Non-Vendor Services.
k. “Vendor Platform” shall mean Vendor’s software-as-a-service application for generating mobile applications made available to Client pursuant to an Order Form.
4. VENDOR RESPONSIBILITIES.
a. Provision of the Services. Vendor will (a) make the Services and Deliverables available to Client pursuant to this Agreement, and the applicable Order Form(s), (b) provide the applicable Vendor standard support for the Services to Client at no additional charge, as indicated in the applicable Order Form(s), and/or upgraded support if purchased pursuant to an Order Form, (c) use commercially reasonable efforts to make the Vendor Platform available 24 hours a day, 7 days a week, except for: (i) planned downtime, and (ii) any unavailability caused by circumstances beyond Vendor’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Vendor employees), Internet service provider failure or delay, Non-Vendor Services, or denial of service attack, (d) use commercially reasonable efforts to provide the Services in accordance with laws and government regulations applicable to Vendor’s provision of its Services to its customers generally (i.e., without regard for Client’s particular use of the Services), and subject to Client’s use of the Services in accordance with this Agreement, the Documentation and the applicable Order Form.
b. Protection of Client Data. Vendor will use commercially reasonable efforts to maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Client Data (other than by Client and End Users).
5. USE OF THE SERVICES.
a. Subscription. Unless otherwise provided in the applicable Order Form, the Services and access to Vendor Platform are purchased as subscriptions for the term stated in the applicable Order Form (the “Subscription Term”). Client agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Vendor regarding future functionality or features.
b. Change Order. Client and Vendor acknowledge that during the course of the performance of the Professional Services, there may be modifications to one or more Order Forms. Should Client request any modifications to an Order Form that constitute a material change to that Order Form, prior to commencing any Professional Services under such change request, Vendor will calculate and submit for Client’s approval any adjustment to the fee and/or schedule resulting from such proposed alteration, addition or deletion. When agreed upon, the changes will be set forth in a “Change Order” executed by both parties. Any decrease of the fees determined pursuant to a Change Order shall be deducted from the next payment for such Professional Services to be made to Client. Any increase of fees determined pursuant to a Change Order shall be paid in accordance with the mutually agreed upon payment schedule set forth in that particular Change Order. Once Client and Vendor have signed a Change Order, it shall form a part of the relevant Order Form and that Order Form shall be deemed to be changed in accordance with the contents of the Change Order. Vend or will not be obligated to make any change without a written Change Order.
c. Acceptance Procedure. Client may evaluate any Deliverables to confirm such Deliverables conform to any specifications set forth in the Order Form and provide a written notice of acceptance or rejection to Vendor. If Client does not provide a written notice of rejection within five (5) days after receipt of any Deliverable, such Deliverable shall be deemed accepted. Any notice of rejection must set forth in reasonable detail the basis for Client’s rejection, specifically identifying any non-conformities relative to the specifications. Upon receipt of a written notice of rejection, Vendor will make commercially reasonable efforts to revise the Deliverables, and the Deliverables will again be subject to the acceptance procedure described herein. If the Client desires to reject the Deliverables for any reason other than failure to conform to the specifications, such rejection and the respective requested changes shall be addressed via the Change Order procedure described in Section 3.2.
d. Cooperation. Client acknowledges that the successful and timely providing of the Services shall require the good faith cooperation of Client. Vendor shall not be liable for any failure to provide the Services that arises from Client’s failure to cooperate in good faith with Vendor.
e. Use Guidelines.
i. Usage Limits. The Services are subject to usage limits specified in Order Form. If Client exceeds a contractual usage limit and Client is unable or unwilling to abide by a contractual usage limit, Client will execute an Order Form for additional quantities of the applicable Services promptly upon Vendor’s request and/or pay any invoice for excess usage.
ii. Client Responsibilities. Client will (a) be responsible for its and its Authorized Users compliance with this Agreement, Documentation and Order Forms and all activity occurring under its Authorized User’s accounts, (b) be responsible for the accuracy, quality and legality of Client Data and Client Content, the means by which Client acquired Client Data and Client Content, and Client’s use of Client Data and Client Content with the Services, (c) be responsible for the interoperation of any Non-Vendor Services Client uses with the Services and compliance with terms of service of any Non-Vendor Services Client uses with the Services, (d) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Vendor promptly of any such unauthorized access or use, (e) comply with and use Services in accordance with applicable laws and government regulations (including without limitation applicable privacy and data protection laws), and (f) be responsible all use of the Deliverables by Client’s End Users (including providing all required notices and obtaining all necessary consents from such End Users) and shall be liable to Vendor for all acts and omissions of its Authorized Users and End Users which would constitute a breach of this Agreement if such act or omission were Client’s.
iii. Use Restrictions. Client will not, and will not allow any third party to: (i) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Services and/or Deliverables by any means, or disclose any of the foregoing; (ii) except as expressly set forth in the Agreement, provide, rent, lease, lend, or use the Services and/or Deliverables for timesharing, subscription, or service bureau purposes; (iii) sublicense, transfer or assign the Services and/or Deliverables or any of the rights or licenses granted under the Agreement; or remove or obscure any trademark, product identification, proprietary marking, copyright or other notices provided with the Services, Deliverables or related documentation; (iv) interfere with or disrupt the integrity or performance of any Service, Deliverables, or third-party data contained therein, (v) permit direct or indirect access to or use of any Services and/or Deliverables in a way that circumvents a contractual usage limit, or use any Services and/or Deliverables to access or use any of Vendor intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (vi) except as expressly set forth in the Agreement, modify, copy, or create derivative works based on the Services and/or Deliverables or any part, feature, function or user interface thereof, (vii) access the Services and/or Deliverables to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Services, or (3) copy any ideas, features, functions or graphics of the Services or create derivative works based on the Services or any part, feature, function or user interface thereof, (viii) use the Services to store or transmit infringing, libelous, obscene, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party intellectual property or privacy rights, (ix) use the Services to store or transmit any code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses, or (x) use the Services in furtherance of illegal activities, or any activities that may be harmful to any third party, or Vendor’s operations or reputation, including offering or disseminating fraudulent goods or services, impersonating another person or entity, or engaging in other deceptive practices.
iv. Suspension. Any use of the Services in breach of Sections 3.5.2 or 3.5.3, or that in Vendor’s judgment threatens the security, integrity or availability of the Services, may result in Vendor’s immediate suspension of the Services; provided that Vendor will use commercially reasonable efforts under the circumstances to provide Client with notice and an opportunity to remedy such violation or threat prior to any such suspension.
f. Non-Vendor Services and Third Party IP. Vendor or third parties may make available third-party products or services, including, Non-Vendor Services. Any acquisition or use by Client of Non-Vendor Services and any exchange of data between Client and any non-Vendor provider is solely between Client and the applicable non-Vendor provider. Vendor does not warrant or support Non-Vendor Services, unless expressly provided otherwise in an Order Form. Vendor is not responsible for any disclosure, modification or deletion of Client Data resulting from access by Non-Vendor Services or its provider. If Client chooses to use a Non-Vendor Service with the Services, Client grants Vendor permission to allow the Non-Vendor Service and its provider to access Client Data and information about Client’s usage of the Non-Vendor Service as appropriate for the interoperation of that Non-Vendor Service with the Service. The parties agree and acknowledge that the Deliverables may include or be built on certain software or materials of third parties and their licensors (“Third Party IP”). Vendor shall not be liable for any Third Party IP incorporated or linked in the Deliverables.
6. PROPRIETARY RIGHTS AND LICENSES.
a. Proprietary Rights. Client agrees that Vendor, its licensors, or its suppliers retain all right, title and interest including all intellectual property rights in and to the Services, Deliverables, Documentation, Vendor Background IP and any and all related and underlying software, databases, technology, reports and documentation, and any adaptation, modification, derivation, addition or extension to the Services and Deliverables. Except for the licenses granted hereunder, nothing in the Agreement gives the Client any right, title or interest in or to the Services, Deliverables, Documentation, Vendor Background, or any related materials.
b. Licenses. During the Subscription Term, Client shall have a limited, non-transferable, non-sublicensable, non-exclusive right to (a) access and use the Vendor Platform for its internal business purposes, and (b) allow End Users to access and use the Deliverables.
c. Custom Deliverables. Client shall own and Vendor hereby assigns to Client all right, title, and interest in and to any Deliverables specifically developed for Client under this Agreement and identified as Custom Deliverables in the applicable Order Form (“Custom Deliverables”), excluding, and subject to, Vendor’s rights in any Vendor Background IP, and any Third Party IP therein. Vendor is and will remain the sole and exclusive owner of all materials, information, developments, inventions, improvements, documents, discoveries, processes, writings, models, reports, diagrams, devices, computer programs, software, technology, know-how and other works of Vendor created, conceived, or developed, (a) prior to the term of this Agreement, (b) outside the scope of this Agreement; or (c) in the course of this Agreement other than the Custom Deliverables, including any copies, enhancements and modifications thereto (collectively, “Vendor Background Inventions”) and all intellectual property rights therein (collectively, “Vendor Background IPR,” and, together with the Vendor Background Inventions, “Vendor Background IP”). Subject to the terms and conditions of this Agreement and subject to final payment by Client of all amounts owed to Vendor under the applicable Order Form, Vendor hereby grants Client a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable license to use, copy, modify, publicly perform, publicly display, distribute and prepare derivative works of any Vendor Background Inventions, solely as part of and as incorporated into a Custom Deliverable by Vendor, solely to the extent such Vendor Background Invention is actually incorporated into such Custom Deliverable by Vendor, and solely as necessary for Client to fully exploit its rights in such Custom Deliverables.
d. Client Data and Client Content. Client shall retain all right, title and interest in and to any Client Data and Client Content. Client grants Vendor a non-exclusive, worldwide, irrevocable, royalty-free, sublicensable license to collect, transmit, store, use, disclose, process, copy, modify, publicly perform, publicly display, distribute and prepare derivative works of any Client Data and Client Content as necessary to provide the Services. Vendor may use the Client Data in an aggregated format with data provided by other third parties for various business purposes, including to improve the Services, and for industry analysis, benchmarking, and analytics; provided that it is not possible to identify Client, or any individual Client transaction from the data. Client acknowledges that Client may, in its discretion, remove any Client Content or Client Data from the Services. In the event Vendor determines that certain Client Content or Client Data should be removed from the Services, Client will (and will require that its Authorized Users) take all steps necessary, including providing assistance to Vendor, to remove or disable access to such Client Content or Client Data.
e. Usage Data. Client acknowledges and agrees that Vendor may collect, transmit, store, use, disclose, and otherwise process aggregated and/or de-identified data derived from Client Data or Client’s use of the Services (“Usage Data”) for Vendor’s business purposes, including to improve the Services, and for industry analysis, benchmarking, and analytics. Aggregated data will be in an aggregated or de-identified form only and will not identify Client or its End Users.
f. Feedback. Client grants to Vendor a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its products and services, and otherwise exploit any suggestion, enhancement request, recommendation, correction or other feedback provided by Client or its End Users relating to the operation of Vendor’s services.
g. Federal Government End Use Provisions. Vendor provides the Services, including related software and technology, for ultimate federal government end use in accordance with the following: The Services consist of “commercial items,” as defined at FAR 2.101. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Services shall be as provided in this Agreement, except that, for U.S. Department of Defense end users, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this Agreement specifically granting those rights.
7. FEES; PAYMENT.
a. Fees; Payment. Client agrees to pay Vendor all of the fees agreed to in the Order Form(s). Fees for the Services will be invoiced in advance in accordance with the terms of the Order Form. Unless otherwise stated in the Order Form, all payments shall be made in United States dollars no later than thirty (30) days after the date of invoice, payable in full, without reduction for any offset, withholding or other claims (except with respect to charges then under reasonable and good faith dispute as evidenced in a writing promptly sent by Client to Vendor prior to the payment due date). All payments not received when due shall accrue interest at a rate per month of one and one-half percent (1.5%). Payment obligations are non-cancellable and all fees are non-refundable. Client shall remit payment via electronic funds transfer to the account designated in the Order Form.
b. Taxes. The fees payable under the Agreement shall not include local, state, federal or foreign sales, use, value-added, excise or personal property or other similar taxes or duties now in force or enacted in the future imposed on the transaction and/or the delivery of the Services, all of which Client shall be responsible for and pay in full except those taxes based on the net income of Vendor. If Client is exempt from the payment of any such taxes, upon execution of the Agreement, Client shall provide Vendor with a valid tax exemption certificate authorized by the appropriate taxing authority.
c. Suspension of Service. If any Client account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies (including the termination rights set forth in the Agreement), Vendor reserves the right, upon ten (10) days prior written notice to Client, to suspend access to and provision of the Services without liability to Vendor until such account is paid in full.
8. TERM AND TERMINATION.
a. Term of the Agreement. The Agreement commences on the date this Agreement is accepted by Client and continues until all Order Forms have expired or the Agreement is terminated earlier, pursuant to the terms set forth herein.
b. Term of Subscription. The Subscription term to the Services shall be as set forth in the Order Form (the “Subscription Term”). Unless otherwise set forth in an Order Form, upon the expiration of the Subscription Term, the Subscription Term shall automatically renew for additional one (1) year periods, unless either party notifies the other of its intent not to renew at least thirty (30) days prior to the end of the Subscription Term.
c. Termination for Cause. Either party may terminate the Agreement or an Order Form by written notice if the other party commits a material breach and fails to cure such breach within thirty (30) days following receipt of written notice of such breach.
d. Effect of Termination. Termination of this Agreement shall be deemed termination of all outstanding Order Forms entered hereunder. Termination or expiration of any Order Form shall not be deemed termination of this Agreement. Upon any termination or expiration of the Agreement (i) Vendor will terminate Client’s access to and cease providing the Services; (ii) Client shall immediately cease any and all use of and access to any Services; and (iii) each party hereunder shall return to the other party any and all Confidential Information of the other party in its possession. Termination shall not relieve Client of the obligation to pay Vendor the fees agreed in any Order Form.
9. WARRANTIES AND DISCLAIMER.
a. Mutual Warranties. Each party represents and warrants to the other that: (a) it is duly organized and in good standing under the laws of its state of incorporation or organization and is duly qualified to do business in the applicable jurisdiction; and (b) to its knowledge, it has all the necessary power and authority to make, execute, deliver, and perform under this Agreement.
b. Client Warranty. Client hereby warrants that it (a) owns or has all right and title to grant Vendor the right to use the Client Data and Client Content as provided herein, (b) has provided all notices, and obtained all rights, authorizations, and consents, necessary to grant the rights to use the Client Data and Client Content as provided herein, and (c) the Client Data and Client Content and Vendor’s use thereof, does not and will not infringe any third party intellectual property or privacy rights.
c. Vendor Warranty. Vendor hereby warrants that the Vendor Platform and Deliverables will operate in substantial conformity with the then-current functional specifications. Client’s sole remedy and Vendor’s sole liability for breach of the foregoing warranty shall be, at Vendor’s sole option, either (i) Vendor will repair the applicable Vendor Platform or Deliverables, or (ii) Vendor will terminate the Agreement and refund to Client a sum equal to the fees paid for use of the Vendor Platform or Deliverable for the period during which the Vendor Platform or Deliverable were rendered unusable, prorated on a monthly basis. Vendor further warrants that it will perform the Professional Services in a good, workmanlike and professional manner. Client’s sole remedy and Vendor’s sole liability for breach of the foregoing warranty shall be the re-performance of the relevant Professional Services free of charge.
d. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE WARRANTIES CONTAINED IN THIS SECTION 7, VENDOR MAKES NO WARRANTIES REGARDING THE SERVICES OR DELIVERABLES. VENDOR SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. VENDOR DOES NOT WARRANT THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ALL DEFECTS AND ERRORS IN THE DELIVERABLES WILL BE CORRECTED, OR THAT THE SERVICES OR DELIVERABLES WILL MEET CLIENT’S PARTICULAR REQUIREMENTS OR EXPECTATIONS. VENDOR DOES NOT PROVIDE ANY WARRANTIES REGARDING THE ACCURACY OF DATA OR INFORMATION PROVIDED BY THIRD PARTIES. VENDOR SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELAYS, INTERRUPTIONS, SERVICE FAILURES AND ANY OTHER PROBLEMS ARISING FROM CLIENT’S USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR ANY OTHER SYSTEMS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THE AGREEMENT BETWEEN VENDOR AND CLIENT. VENDOR’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITED WARRANTIES SPECIFIED HEREIN.
10. CONFIDENTIAL INFORMATION.
a. Obligations. During the term of the Agreement and for a period of three (3) years after the date of termination or expiration of the Agreement, each party: (i) shall treat as confidential all Confidential Information (as defined below) provided by the other party; (ii) shall not use such Confidential Information except as expressly permitted under the terms of the Agreement or otherwise previously authorized in writing by the disclosing party; (iii) shall implement reasonable procedures to prohibit the disclosure, unauthorized duplication, reverse engineering, disassembly, decompiling, misuse or removal of such Confidential Information; and (iv) shall not disclose such Confidential Information to any third party, without the express written consent of the disclosing party. Without limiting the foregoing, each party shall use at least the same degree of care to prevent the disclosure of the other party’s Confidential Information as it uses to prevent the disclosure of its own Confidential Information, and shall in any event use no less than a reasonable degree of care. “Confidential Information” shall mean all confidential information of a party, whether written or oral, and whether in paper or electronic format, disclosed to a receiving party that is designated in writing or identified as confidential at the time of disclosure or should be reasonably known by the receiving party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Confidential information related to either party’s customer lists, customer information, products, technical information, pricing information, pricing methodologies, or information regarding the disclosing party’s business planning or business operations shall be deemed Confidential Information without any marking or further designation.
b. Exceptions. Notwithstanding the above, the receiving party’s nondisclosure obligations shall not apply to information that the receiving party can demonstrate: (i) was generally available to the public at the time it was disclosed, or becomes generally available to the public through no fault of the receiving party; (ii) was known to the receiving party, without an associated confidentiality obligation, at the time of disclosure as shown by written records in existence at the time of disclosure; (iii) was developed independently by the receiving party prior to the disclosure, as shown by written records in existence prior to the disclosure; (iv) is disclosed with the prior written approval of the disclosing party; (v) becomes known to the receiving party from a source other than the disclosing party without breach of the Agreement by the receiving party and in a manner which is otherwise not in violation of the disclosing party’s rights. In addition, the receiving party may disclose Confidential Information of the disclosing party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the receiving party shall provide reasonable advance notice to enable the disclosing party to seek a protective order, and that such information remains Confidential Information for all other purposes.
a. Client Indemnity. Client will defend Vendor and its parents, subsidiaries, affiliates, shareholders, officers, directors and employees against any claim, demand, suit or proceeding made or brought against Vendor by a third party (a) alleging that (1) any Client Data, Client Content or Client’s use of Client Data or Client Content with the Services, (2) a Non-Vendor Service provided by Client, or (3) the combination of a Non-Vendor Service provided by Client and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or (b) arising from Client’s use of the Services in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form, and will indemnify Vendor from any damages, attorney fees and costs finally awarded against Vendor as a result of, or for any amounts paid by Vendor under a settlement approved by Client in writing of, any such claim against Vendor. Vendor will (a) promptly gives Client written notice of the claim, (b) gives Client sole control of the defense and settlement of the claim (except that Client may not settle any claim unless it unconditionally releases Vendor of all liability), and (c) gives Client all reasonable assistance, at Client’s expense; provided that failure to do any of the foregoing shall not invalidate the claim for indemnification, unless such failure has a material adverse effect on the settlement, defense, or compromise of the matter that is the subject of the claim for indemnification. The above defense and indemnification obligations do not apply if a claim arises from Vendor’s breach of this Agreement, the Documentation or applicable Order Forms.
b. Vendor Indemnity. Vendor shall defend Client and its parents, subsidiaries, affiliates, shareholders, officers, directors and employees against and pay any settlement or final judgment amounts resulting from third party claims alleging any intellectual property infringement by the Vendor Background Inventions utilized by Vendor pursuant to this Agreement, and incorporated by Vendor into the Deliverables. Client will (a) promptly gives Vendor written notice of the claim, (b) gives Vendor sole control of the defense and settlement of the claim (except that Vendor may not settle any claim unless it unconditionally releases Client of all liability), and (c) gives Vendor all reasonable assistance, at Vendor’s expense; provided that failure to do any of the foregoing shall not invalidate the claim for indemnification, unless such failure has a material adverse effect on the settlement, defense, or compromise of the matter that is the subject of the claim for indemnification. Vendor will not be liable for any infringement based on (i) any modification of or additions to the Deliverables performed by parties other than Vendor; (ii) misuse of the Deliverables; (iii) use of the Deliverables in conjunction with software or hardware not supplied by Vendor or any Non-Vendor Services; (iv) any Client Data or Client Content; (v) any specifications or instructions provided by Client; or (vi) Client’s breach of this Agreement, the Documentation or applicable Order Forms.
i. If any Deliverable or Vendor Background Invention infringes or misappropriates, or in the reasonable determination of Vendor is likely to infringe or misappropriate any third party’s intellectual property rights, then Vendor may, at its sole option and expense: (i) obtain from such third party the right to continue to use the Deliverable or Vendor Background Invention consistent with the rights granted hereunder; (ii) modify the Deliverable or Vendor Background Invention to avoid and eliminate such infringement or misappropriation; or (iii) terminate this Agreement and any rights of Client with respect to such Deliverable or Vendor Background Invention.
ii. THE FOREGOING PROVISIONS OF THIS SECTION 9.2 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF VENDOR, AND THE EXCLUSIVE REMEDY OF CLIENT, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT.
12. LIMITATIONS OF LIABILITY. EXCEPT FOR BREACH OF SECTION 8, NEITHER PARTY, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS, SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL PUNITIVE OR EXEMPLARY DAMAGES OR LIABILITY (INCLUDING REASONABLE ATTORNEYS’ FEES) THAT RESULT FROM OR ARE RELATED TO THE AGREEMENT OR, IN THE CASE OF VENDOR, ANY OF THE SERVICES OR DELIVERABLES, WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITY. THE AGGREGATE LIABILITY OF VENDOR RELATED TO OR ARISING OUT OF THE AGREEMENT OR ANY OF THE SERVICES OR DELIVERABLES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL NOT EXCEED THE AMOUNTS RECEIVED BY VENDOR FROM CLIENT IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH DAMAGES.
13. GENERAL PROVISIONS.
a. Non-Solicitation. It is recognized that Vendor has made a significant investment in its employees and contractors. As such, to the extent such restriction is permitted under applicable law, Client shall not solicit for employment any employees or contractors of Vendor during the term of this Agreement and for a minimum of ninety (90) days following the expiry or termination of this Agreement unless otherwise agreed in writing. The restriction in this Section 11.1 shall not be deemed to prohibit Client’s advertisements addressed to the general public.
b. Governing Law. The Agreement shall be governed by and construed in accordance with the laws of the State of California, without application of California conflicts of laws principles and without application of the United Nations Convention on the International Sale of Goods.
c. Dispute Resolution. Should a dispute arise between the parties relating to this Agreement, senior executives of each party shall in good faith attempt to resolve the dispute within thirty (30) days following receipt of written notice sent by one party to the other party. If the senior executives cannot resolve the dispute within thirty (30) days after notice is given, then either party may invoke formal dispute resolution procedures by submitting to the other party a written demand for arbitration. Any dispute subject to arbitration shall be determined and settled by confidential arbitration, conducted in English, held in San Francisco County, California, administered by the American Arbitration Association (“AAA”) before a sole arbitrator in accordance with the then-current AAA Commercial Arbitration Rules. The award rendered by the arbitrator shall be final and binding on the parties thereto, and judgment thereon may be entered in any court of competent jurisdiction. Nothing in this Section 11.3 shall prevent either party from applying to a court of competent jurisdiction for equitable or injunctive relief.
d. Severability. If any provision of the Agreement is held to be invalid or unenforceable for any reason, it shall be deemed omitted and the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
e. Waiver. The waiver by either party of a breach of any provision of the Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
f. Assignment. The Agreement shall be binding upon the parties’ respective successors and permitted assigns. Neither party shall assign the Agreement, and/or any of its rights and obligations hereunder, without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the above, Vendor may assign or transfer the Agreement upon a change of control or pursuant to a sale of all or substantially all the stock or assets of the assigning party related to this Agreement and Vendor may subcontract all or part of its duties hereunder so long as Vendor remains liable for the performance thereof.
g. Independent Contractors. The parties to the Agreement are independent contractors. There is no relationship or partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
h. Publicity. Vendor may include the name and logo of Client in lists of customers in the same manner in which it uses the names of Vendor’s other customers, including without limitation disclosing Client’s name to Vendor’s third party providers and partners.
i. Notices. Any notices required to be given under the terms of the Agreement, shall be in writing and either delivered personally, delivered by a nationally or internationally recognized overnight courier service or sent by registered or certified mail. Notices to either party hereunder shall be sent to those addresses set forth in the Order Form. Notices shall be deemed to have been received: (i) on the day given if delivered by hand (securing a receipt evidencing such delivery); (ii) on the second day after notice is sent, if sent by an overnight courier service; or (iii) on the fifth day after notice was mailed, if sent by registered or certified mail.
j. Survival. All provisions of the Agreement relating to proprietary rights, payment of fees accrued, confidentiality and non-disclosure, and limitation of liability shall survive the completion of the Services or any termination of the Agreement.
k. Facsimile, Email Transmission; Counterparts. The Agreement (including any Order Form) may be executed and delivered by facsimile or email and each full reproduction, including reproductions by photocopy or scan, shall be deemed an original. Receipt of any such reproduction by facsimile or email transmission shall be deemed delivery of an original. The Agreement (including any Order Form) may be executed in several counterparts each of which when executed shall be deemed to be an original, and such counterparts shall each constitute one and the same instrument and notwithstanding their date of execution shall be deemed to be effective as of the Effective Date.
l. Force Majeure. Except for Client’s obligation to pay amounts due to Vendor hereunder, neither party will be liable to the other for any failure to meet its obligations under the Agreement where such failure is caused by events beyond its reasonable control including, but not limited to, such as failure of communications networks, inability to timely obtain instructions or information from the other party, governmental action, epidemic, pandemic (including COVID-19), fire, storms, floods or other acts of God, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.
m. Subsequent Modifications. No amendment, alteration or modification of the Agreement shall be effective or binding unless it is set forth in a writing signed by duly authorized representatives of both parties.
n. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Vendor and Client regarding Client’s use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Client purchase order or in any other Client order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
o. Export Compliance. The Services, Deliverables, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Client represents that it is not named on any U.S. government denied-party list. Client will not permit any Authorized User to access or use any Service or End User access the Deliverables in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.