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Last Modified: October 26, 2022
PLEASE READ THE TERMS OF SERVICE (“TERMS”) CAREFULLY. THESE TERMS ARE A BINDING CONTRACT FOR THE USE OF SERVICES OF SPLITMETRICS INC. (“SPLITMETRICS” OR “PROVIDER”), A DELAWARE CORPORATION WITH OFFICES LOCATED AT 108 W. 13TH STREET, SUITE 100, WILMINGTON, DE 19801.
“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Hosted Services.
“Action” has the meaning set forth in Section 11.1.
“Authorized User” means any person acting on behalf of Customer or who was granted access to the Services by Customer.
“Beta Services” means services or functionality that may be made available to Customer to try at its option at no additional charge, which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Confidential Information” has the meaning set forth in Section 8.1.
“Customer” has the meaning set forth in the preamble.
“Customer Data” means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services or that incorporates or is derived from the Processing of such information, data or content by or through the Services.
“Customer Failure” has the meaning set forth in Section 4.2.
“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
“Disclosing Party” has the meaning set forth in Section 8.1.
“Documentation” means any manuals, instructions or other documents or materials that the Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“Effective Date” has the meaning set forth in the preamble.
“Fees” has the meaning set forth in Section 6.1.
“Force Majeure Event” has the meaning set forth in Section 13.1.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services or Provider Systems as intended by these Terms. Harmful Code does not include any Provider Disabling Device.
“Hosted Services” has the meaning set forth in Section 2.1.
“Indemnitee” has the meaning set forth in Section 11.3.
“Indemnitor” has the meaning set forth in Section 11.3.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Permitted Use” means any use of the Services by an Authorized User for the benefit of Customer solely in or for Customer’s internal business operations.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
“Personal Information” means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located. Personal Information includes all “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996, “Personal Data” as defined in the General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679)), “Personal Information” as defined under the Children’s Online Privacy Protection Act of 1998, and all rules and regulations issued under any of the foregoing.
“Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information or other content. “Processing” and “Processed” have correlative meanings.
“Provider” has the meaning set forth in the preamble.
“Provider Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Provider or its designee to disable Customer’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of Provider or its designee.
“Provider Indemnitee” has the meaning set forth in Section 11.2.
“Provider Materials” means the Service Software, Documentation and Provider Systems and any and all other information, specifications, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.
“Provider Personnel” means all individuals involved in the performance of Services as employees, agents or independent contractors of Provider or any Subcontractor.
“Provider Systems” means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Provider or through the use of third-party services.
“Receiving Party” has the meaning set forth in Section 8.1.
“Reimbursable Expenses” has the meaning set forth in Section 6.3.
“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, consultants, agents, sublicensees, and legal advisors.
“Resultant Data” means information, data and other content that is derived by or through the Services from Processing Customer Data, under the condition that it is sufficiently different from such Customer Data and such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content. For sake of clarity, Resultant Data does not include any Personal Information.
“Service Order” means any service order, online sign-up or subscription or other ordering of Services with reference to these Terms.
“Service Software” means the Provider software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Provider provides remote access to and use of as part of the Services.
“Services” has the meaning set forth in Section 2.1.
“Subcontractor” has the meaning set forth in Section 2.5.
“Subscription Term” means the initial term for the subscription for Services agreed in the applicable Service Orders, and each subsequent renewal term, if any.
“Support Services” means any type of activity that is required to support the Provider Systems and/or Services.
“Term” has the meaning set forth in Section 9.1.
“Terms” has the meaning set forth in the preamble.
“Territory” means worldwide.
“Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Provider.
2.1. Services. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of these Terms, during the Term, Provider shall use commercially reasonable efforts to provide to Customer and its Authorized Users the services described in the respective Service Order(s) and these Terms (collectively, the “Services“) in accordance with the terms and conditions hereof, including to host, manage, operate and maintain the Service Software for remote electronic access and use by Customer and its Authorized Users (“Hosted Services“) in substantial conformity with the agreed specifications 24 hours per day, seven days per week every day of the year, except for:
(a) scheduled downtime;
(b) service downtime or degradation due to a Force Majeure Event;
(c) any other circumstances beyond Provider’s reasonable control, including Customer’s or any Authorized User’s use of Third Party Materials, misuse of the Hosted Services, or use of the Services other than in compliance with the express terms of these Terms and the agreed specifications; and
(d) any suspension or termination of Customer’s or any Authorized Users’ access to or use of the Hosted Services as permitted by these Terms.
2.2. Service and System Control. Except as otherwise expressly provided in these Terms, as between the parties:
(a) Provider has and will retain sole control over the operation, provision, maintenance and management of the Services and Provider Materials, including the: (i) Provider Systems; and (ii) performance of Support Services and Service maintenance, upgrades, corrections and repairs; and
(b) Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions or actions based on such use.
2.3. Service Management. Each party shall, throughout the Term, maintain within its organization a service manager to serve as such party’s primary point of contact for day-to-day communications, consultation and decision-making regarding the Services upon execution of these Terms Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under these Terms. Each party shall ensure its service manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity. Each party shall use commercially reasonable efforts to maintain the same service manager in place throughout the Term. If either party’s service manager ceases to be employed by such party or such party otherwise wishes to replace its service manager, such party shall promptly name a new service manager by written notice to the other party.
2.4. Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Provider’s services to its customers, (ii) the competitive strength of or market for Provider’s services or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law. Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the Services. No requested changes will be effective unless and until mutually agreed in a written change order.
2.5. Subcontractors. Provider may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”). Provider shall engage Subcontractors taking into account provisions of CCPA, GDPR and other data protection laws.
2.6. Suspension or Termination of Services. Provider may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate or otherwise deny Customer’s, any Authorized User’s or any other Person’s access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, if: (a) Provider receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its sole discretion, that: (i) Customer or any Authorized User has failed to comply with, any term of these Terms, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under these Terms or in any manner that does not comply with any instruction or requirement of the agreed specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (iii) these Terms expire or is terminated. This Section 2.6 does not limit any of Provider’s other rights or remedies, whether at law, in equity or under these Terms.
2.7. Beta Services. From time to time, Provider may make Beta Services available to Customer at no charge. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Provider may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Provider shall have no liability for any harm or damage arising out of in connection with a Beta services.
3. Authorization and Customer Restrictions.
3.1. Authorization. Subject to and conditioned on Customer’s payment of the Fees and compliance and performance in accordance with all other terms and conditions of these Terms, Provider hereby authorizes Customer to access and use, solely in the Territory and during the Term, the Services and such Provider Materials as Provider may supply or make available to Customer solely for the Permitted Use by and through Authorized Users in accordance with the agreed specifications, and the conditions and limitations set forth in these Terms. This authorization is non-exclusive and non-transferable.
3.2. Reservation of Rights. Nothing in these Terms grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Provider Materials or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Provider Materials and the Third Party Materials are and will remain with Provider and the respective rights holders in the Third Party Materials.
3.3. Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by these Terms and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as these Terms expressly permits:
(a) copy, modify or create derivative works or improvements of the Services or Provider Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Services or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
(e) input, upload, transmit or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
(f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Provider Systems or Provider’s provision of services to any third party, in whole or in part;
(g) remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or Provider Materials, including any copy thereof;
(h) access or use the Services or Provider Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Provider customer), or that violates any applicable Law;
(i) access or use the Services or Provider Materials for purposes of competitive analysis of the Services or Provider Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Provider’s detriment or commercial disadvantage; or
(j) access or use the Services or Provider Materials in, or in association with, the design, construction, maintenance, operation of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage;
(k) access or use the Services or Provider Materials in any manner that may harm minors;
(l) access or use the Services or Provider Materials to provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act or other laws and regulations concerning national security, defense or terrorism;
(m) access or use the Services or Provider Materials in any manner that may: be defamatory of any person; obscene, offensive, hateful or inflammatory; promote sexually explicit material; promote violence; promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; be likely to deceive any person; breach any legal duty owed to a third party, such as a contractual duty or a duty of confidence; promote any illegal activity; be in contempt of court; be threatening, abuse or invade another’s privacy, or cause annoyance, inconvenience or needless anxiety; be likely to harass, upset, embarrass, alarm or annoy any other person; impersonate any person, or misrepresent your identity or affiliation with any person; give the impression that the contribution emanates from Provider, if this is not the case; advocate, promote, incite any party to commit, or assist any unlawful or criminal act such as (by way of example only) copyright infringement or computer misuse; contain a statement which Customer knows or believes, or has reasonable grounds for believing, that members of the public to whom the statement is, or is to be, published are likely to understand as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism; or
(n) otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under Section 3.1.
4. Customer Obligations.
4.1. Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with the agreed specifications all Customer Systems on or through which the Services are accessed or used; and (b) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with these Terms.
4.2. Effect of Customer Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under these Terms (each, a “Customer Failure“).
4.3. Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.3, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider of any such actual or threatened activity.
5. Security. Data protection.
5.1. Provider Systems and Security Obligations. Provider will employ and fulfill state of the art security measures in accordance with applicable industry practice.
5.2. Data Breach Procedures. Provider maintains a data breach plan and shall implement the procedures required under such data breach plan on the occurrence of a data breach.
5.3. Prohibited Data. Customer acknowledges that the Services are not designed with security and access management for Processing the following categories of information: (a) data that is classified and or used on the U.S. Munitions list, including software and technical data; (b) articles, services and related technical data designated as defense articles or defense services; and (c) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, “Prohibited Data“). Customer shall not, and shall not permit any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Services, the Provider Systems or any Provider Personnel. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data. Provider acknowledges and agrees that it has no right, explicit or implied, to access, process, transfer, analyze, enrich and/or commingle with any other data or otherwise any Personal Information regardless how such Personal Information has been obtained and/or received by Provider and/or Provider Personnel.
5.4. Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems“); (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
5.5. Confidentiality. Provider will ensure that persons authorized by Customer to process any personal data are subject to appropriate confidentiality obligations.
5.6. Security. Provider will protect personal data in accordance with requirements under data protection laws, including by implementing appropriate technical and organizational measures designed to protect personal data against data breach.
5.7. Data Security. In addition to complying with other provisions of the Terms requiring the protection of personal data, Provider will:
(i) Ensure that server computers hosting any personal data are only accessible from within the Provider’s secure internal network and that communications between such servers are secure, segregate such servers from user computers on any internal data network;
(ii) Ensure that Provider will (a) store personal data on only encrypted devices or removable media (e.g. USB, Tape backup), and (b) transmit personal data only via secured and encrypted network (e.g. VPN);
(iii) Use measures to protect the security of paper records containing personal data while such papers are being stored, used or transmitted that are reasonable in the circumstances;
(iv) Ensure that personal data are properly backed up and can be restored in a timely manner in the event of physical or technical incident;
(v) Ensure that all devices (e.g. workstations, mobile devices, laptops) that process or store personal data have up to date industry standard IT security tools (e.g. antivirus, anti-malware protection, firewall software) installed and have the appropriate security patches applied;
(vi) Provide physical security to prevent unauthorized access to any facility or devices used in connection with providing the Services.
5.8. CCPA compliance. Provider process Personal Information (as such term is defined under the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq. (“CCPA”) only pursuant to the terms set forth in the Terms and only for accomplishment of its goals (“business purpose” as defined by CCPA). Provider does not sell, rent, disclose, release, transfer, make available or otherwise communicate, Personal Information to a third party in exchange for any monetary or other valuable consideration, except as required to provide the Services or as otherwise expressly permitted under the Terms.
6. Fees; Payment Terms.
6.1. Fees. Customer shall pay Provider the fees set forth in the Service Order (“Fees“) in accordance with this Section 6.
6.2. Fee Increases. Provider may increase Fees no more than five per cent once annually during then-current Subscription Term for any contract year by providing written notice to Customer at least 60 calendar days prior to the commencement of that contract year, and the Service Order will be deemed amended accordingly. In case Customer does not accept the increase, Customer may terminate the Terms as provided in Section 9.3.
6.3. Reimbursable Expenses. Customer shall reimburse Provider for out-of-pocket expenses (e.g. outside consultants and services) incurred by Provider in connection with performing the Services (“Reimbursable Expenses“), if pre-approved by Customer in writing.
6.4. Taxes. All Fees and other amounts payable by Customer under these Terms are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
6.5. Payment. Customer shall pay all Fees and Reimbursable Expenses within 15 calendar days after the date of the invoice therefor. Customer shall make all payments hereunder in US dollars by wire transfer. Customer shall make payments to the address or account specified in the Service Order or such other address or account as Provider may specify in writing from time to time.
6.6. Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
(a) Provider may charge interest on the past due amount at the rate of 1% per month calculated daily and compounded monthly;
(b) if such failure continues for 30 days following written notice thereof, Provider may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
6.7. No Deductions or Setoffs. All amounts payable to Provider under these Terms shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
6.8. Fee Reconsideration. Notwithstanding Section 6.2, Provider may reconsider the amount of Fees after the expiration of then-current Subscription Term set out in the Service Order by providing written notice to Customer no later than 60 days before the expiration of such Subscription Term. If Customer agrees with such reconsideration, Customer will renew the Subscription Term under Section 9.2., and the Service Order will be deemed amended accordingly, and the reconsidered fees will apply. If Customer does not agree with Fees reconsideration, Customer will not renew Subscription term. Notwithstanding the abovementioned, the parties may reconsider Fees in a new Service Order applicable to renewed Subscription Term and with execution of it the previous one will be deemed replaced accordingly. In case negotiations on such reconsideration fail, Terms will be terminated with expiration of then-current Subscription Term under Section 9.1 (ii).
7. Intellectual Property Rights.
7.1. Services and Provider Materials. All right, title and interest in and to the Services and Provider Materials, including all Intellectual Property Rights therein, are and will remain with Provider and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Services or Provider Materials (including Third-Party Materials) except as expressly set forth in Section 3.1 or the applicable third-party license, in each case subject to Section 3.3 All other rights in and to the Services and Provider Materials (including Third-Party Materials) are expressly reserved by Provider and the respective third-party licensors.
7.2. Customer Data. As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 7.3.
7.3. Consent to Use Customer Data. Customer hereby, during the term of these Terms, grants all such rights and permissions in or relating to Customer Data: (a) to Provider, and the Provider Personnel as are necessary to perform the Services; and (b) to Provider as are necessary to enforce these Terms and perform its obligations hereunder.
8.1 Confidential Information. In connection with these Terms each party (as the “Disclosing Party“) may disclose or make available Confidential Information to the other party (as the “Receiving Party“). Subject to Section 8.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential”. Without limiting the foregoing: all Provider Materials are the Confidential Information of Provider and the financial terms and existence of these Terms are the Confidential Information of each of the parties. Furthermore all Customer Data is Confidential Information of Customer.
8.2. Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with these Terms; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with these Terms; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
8.3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for term of these Terms and ten years after the termination and/or expiration of these Terms:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with these Terms;
(b) except as may be permitted by and subject to its compliance with Section 8.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with these Terms; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 8.3; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 8.3;
(c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care; and
(d) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 8.
8.4. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 8.4; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 8.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
8.5. Non-disclosure Agreement. The parties can execute additionally a Non-disclosure agreement or a similar confidentiality document, in that case the NDA or a similar document shall prevail over provisions of Section 8.
9. Term and Termination.
9.1. Term. These Terms commence as of the Effective Date and will continue in effect until (i) terminated earlier pursuant to Terms’ express provisions, or (ii) upon expiration of all Subscription Term(s) (“Term“).
9.2. Subscription Term. The initial Subscription Term commences on the date stated in the specific Service Order and will continue in effect as stated in such Service Order. If no such start date is stated in the Service Order, this date will be when Customer first obtains access to the Services. Customer may renew the Subscription Term by giving a written notice of renewal at least 30 days prior to the expiration of the then-current Subscription Term. Customer can terminate a Subscription Term as permitted in the applicable Service Order. Service Order is terminated automatically together with the Terms when the Terms are terminated in accordance with Section 9.3.
9.3. Termination. In addition to any other express termination right set forth elsewhere in these Terms:
(a) Provider may terminate these Terms, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues more than 30 days after Provider’s delivery of written notice thereof;
(b) Customer may terminate these Terms with 30 days’ notice if it does not accept the Fee increase as described in Section 6.2;
(c) either party may terminate these Terms, effective on written notice to the other party, if the other party materially breaches its obligations under these Terms, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; and
(d) either party may terminate these Terms, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
9.4. Effect of Expiration or Termination. Upon any expiration or termination of these Terms, except as expressly otherwise provided in these Terms:
(a) all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
(b) Provider shall immediately cease all use of any Customer Data or Customer’s Confidential Information and (i) at Customer’s written request within 60 days return to Customer, or destroy, all documents and tangible materials containing, reflecting, incorporating or based on Customer Data or Customer’s Confidential Information; and (ii) permanently erase all Customer Data and Customer’s Confidential Information from all systems Provider directly or indirectly controls- however, Provider may retain copies of Customer Data and Customer’s Confidential Information in the following cases: (i) stored on backup disks or in backup storage facilities automatically produced in the ordinary course of business which are not, in the ordinary course of business, accessible from employee workstations and (ii) stored for the purposes of researches and industry studies (with deletion of any references to Customer if such researches or studies are made public). ;
(c) Customer shall immediately cease all use of any Services or Provider Materials and (i) promptly return to Provider, or at Provider’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any Provider Materials or Provider’s Confidential Information; and (ii) permanently erase all Provider Materials and Provider’s Confidential Information from all systems Customer directly or indirectly controls;
(d) Provider may disable all Customer and Authorized User access to the Hosted Services and Provider Materials;
(e) if Customer terminates these Terms pursuant to Section 9.3(c), Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Provider will refund to Customer Fees paid in advance for Services that Provider has not performed as of the effective date of termination.
(f) if Provider terminates these Terms pursuant to Section 9.3(a) or Section 9.3(c), all Fees that would have become payable had the Terms remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Provider’s invoice therefor.
9.5. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in these Terms that, by its nature, should survive termination or expiration of these Terms, will survive any expiration or termination of these Terms: Section 3.3, Section 8, Section 9.4, this Section 9.5, Section 10, Section 11, Section 12 and Section 14.
10. Representations and Warranties.
10.1. Mutual Representations and Warranties. Each party represents and warrants to the other party that:
(a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under these Terms;
(c) the execution of these Terms by its representative whose signature is set forth at the end of these Terms has been duly authorized by all necessary corporate or organizational action of such party; and
(d) when executed and delivered by both parties, these Terms will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
10.2. Additional Provider Representations, Warranties and Covenants. Provider represents, warrants and covenants to Customer that Provider will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under these Terms. Provider represents, warrants and covenants to Customer that Provider owns or otherwise has and will have the necessary rights and consents in and relating to the Provider Materials so that, as received by Provider and Processed in accordance with these Terms, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law. Provider represents, warrants and covenants that it will not process, access, transfer, analyze, enrich and/or commingle with any other data or otherwise any Personal Information. Furthermore, Provider represents, warrants and covenants that it will comply with its obligations under Section 5.1.
PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES THAT: (I) ANY SPECIFIC NUMBER OF VIEWS OR CLICKS IN REGARD TO THE CUSTOMER GOODS, PRODUCTS OR SERVICES WILL BE SECURED, OR (II) ANY SPECIFIC NUMBER OF INSTALLS AND CONVERSIONS WILL BE SECURED, OR (III) THE AD OR MARKETING CAMPAIGNS WILL RESULT IN ANY INCOME OR OTHER BENEFIT FOR CUSTOMER.
10.3. Additional Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed in accordance with these Terms, they do not and will not infringe, misappropriate or otherwise violate any valid Intellectual Property Rights.
10.4. Data Subject’s Rights Assistance. The parties will provide each other reasonable assistance through appropriate technical and organizational measures designed to fulfill the obligations of the parties to respond to requests for the implementation of the right to provide data in accordance with GDPR and other applicable data protection laws.
10.5. Security Assistance.The Parties will cooperate in good faith in efforts to ensure compliance of the Provider with safety requirements in accordance with the GDPR and other applicable data protection laws.
10.6. Data Protection Impact Assessment Assistance. Taking into account the nature of Provider’s processing of personal data and the information available to Provider, Provider will provide reasonable assistance to Customer, as required, for Customer to comply with its obligations under the GDPR and other applicable data protection laws in connection with Provider’s processing of personal data under the Terms.
10.7. Personal Data Breach Notice and Assistance. Provider will notify Customer without undue delay after becoming aware of a personal data breach. Taking into account the nature of processing of personal data and the information available to Provider, Provider will provide reasonable assistance to Customer as may be necessary for Customer to satisfy any notification obligations required under the GDPR and other applicable data protection laws related to any personal data breach.
11.1. Provider Indemnification. Provider shall indemnify, defend and hold harmless Customer and its officers, directors, employees from and against any and all third party claim, suit, action or proceeding (each, an “Action“), other than by an Affiliate of Customer, arising out of or relating to (i) the Services (excluding Customer Data) infringing any Intellectual Property Right and/or (ii) Provider’s breach of these Terms. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any modification of the Services or Provider Materials other than: (i) by or on behalf of Provider; or (ii) with Provider’s written approval in accordance with Provider’s written specification.
11.2. Customer Indemnification. Customer shall indemnify, defend and hold harmless Provider, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “Provider Indemnitee“) from and against any and all Losses incurred by such Provider Indemnitee in connection with any Action by a third party (other than an Affiliate of a Provider Indemnitee) that arise out of or relate to (i) any Customer Data, excluding any Personal Information, or (ii) Customer’s breach of these Terms.
11.3. Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 11.1 or Section 11.2, as the case may be. The party seeking indemnification (the “Indemnitee“) shall cooperate with the other party (the “Indemnitor“) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel of reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 11.3 will not relieve the Indemnitor of its obligations under this Section 11 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
11.4. Mitigation. If any of the Services or Provider Materials are, or in Provider’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or Provider Materials is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Services and Provider Materials materially as contemplated by these Terms;
(b) modify or replace the Services and Provider Materials, in whole or in part, to seek to make the Services and Provider Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Provider Materials, as applicable, under these Terms;
(c) If neither (a) nor (b) are commercially reasonable, Provider shall terminate Customer’s use of the Services.
12. Limitations of Liability.
12.1. EXCLUSION OF DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, OR (C) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
12.2. CAP ON LIABILITY. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO PROVIDER PURSUANT TO THE TERMS IN THE TWELVE (12) MONTHS PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THIS LIMITATION DOES NOT COVER OBLIGATIONS OF CUSTOMER TO PAY FEES DUE ACCORDING TO THE TERMS.
12.3. ANY LIMITATION OF LIABILITY SHALL NOT APPLY TO DAMAGES CAUSED BY OR ARISING OUT OF (1) BREACH OF CONFIDENTIALITY OBLIGATIONS OR INTELLECTUAL PROPERTY RIGHTS; (2) BREACH OF REPRESENTATIONS AND WARRANTIES; (3) GROSS NEGLIGENCE OR WILFULL MISCONDUCT; (4) AGREED INDEMNITY OBLIGATIONS AND/OR (5) BREACH OF THE DPA OR OTHER DATA PROTECTION OBLIGATIONS.
13. Force Majeure.
13.1. No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event“), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the effective date of these Terms, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate these Terms if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of 30 days or more.
13.2. Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
14.1. Further Assurances. Upon a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to these Terms.
14.2. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
14.3. Public Announcements. Customer grants to Provider a permission to use Customer’s trademarks, service marks, trade names and logos on Provider’s websites and in the Provider’s marketing materials in order to define Customer as a client of Provider.
14.4. Notices. Notices shall be sent by Customer by email to [email protected] and by Provider by posting a notice on Customer’s account page or by sending an email to the Customer’s email address. Each party may update its contact information by providing such a notice. Notice will be deemed given twenty-four hours after posting or after an email is sent to the most recent address provided by the other party.
14.5. Interpretation. For purposes of these Terms: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to these Terms as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in these Terms: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, these Terms; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend these Terms to be construed without regard to any presumption or rule requiring construction or interpretation against the parties. The exhibits, schedules, attachments and appendices referred to herein are an integral part of these Terms to the same extent as if they were set forth verbatim herein.
14.6. Headings. The headings in these Terms are for reference only and do not affect the interpretation of these Terms.
14.7. Entire Agreement. These Terms, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of these Terms, the related Service Orders, exhibits, schedules, attachments and appendices and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, these Terms, excluding Service Orders, exhibits, schedules, attachments and appendices; (b) second, unless they expressly amend these Terms, the Service Orders, exhibits, schedules, attachments and appendices to these Terms; and (c) third, any other documents incorporated herein by reference.
14.8. Assignment. Either party shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under these Terms, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without other party’s prior written consent, which consent that party shall not unreasonably withhold or delay/may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving either party (regardless of whether that party is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under these Terms for which the other party’s prior written consent is required. No delegation or other transfer will relieve either party of any of its obligations or performance under these Terms. Any purported assignment, delegation or transfer in violation of this Section 14.8 is void. These Terms is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
14.9. No Third-party Beneficiaries. These Terms are for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
14.10. Amendment and Modification; Waiver. Provider may modify these Terms from time to time, with 30 days’ notice to Customer, by posting the modified Terms on its website. Such modifications will not apply retroactively. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from these Terms shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
14.11. Severability. If any provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify these Terms so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
14.12. Governing Law; Submission to Jurisdiction. These Terms and all matters arising out of or relating to these Terms shall be governed by the laws of the State of New York, without regard to its conflict of law provisions. Any dispute, controversy or claim arising out of or relating to these Terms, or the breach, termination or validity thereof shall be finally settled by arbitration in accordance with the Rules of International Chamber of Commerce. The place of arbitration shall be New York, NY and the language of the arbitration proceedings shall be English. However, notwithstanding the foregoing, both Parties are entitled to seek interim injunctive relief from competent jurisdiction as well as the enforcement of the arbitral award. The Parties agree that the arbitration procedure and all thereto related material and information shall be treated as Confidential Information.
14.13 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of these Terms, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.