Last Updated: May 5, 2021
This Agreement governs customer’s acquisition and use of certain Services (as defined below), including any free or trial Services (to the extent applicable).
This Agreement will be deemed effective (the “Effective Date”) upon the earlier of the following: (i) the Customer having indicated, by completion of the necessary data fields, its agreement to be bound by the terms and conditions contained herein, (ii) executing an Order Form (as defined herein), and (iii) using any Services.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Beta Services” Services made available to Customer as a trial, or otherwise without cost to the Customer, and clearly identified as “Beta” by the Company.
“Content” means information obtained by the Company from publicly available sources or its third-party content providers and made available to Customer in connection with the Services, Beta Services or pursuant to an Order Form, as more fully described in the Documentation.
“Customer Data” means electronic data and information submitted by or for Customer in connection with the Services. For the avoidance of doubt, neither Non-Company Applications, nor Content shall in any context be considered “Customer Data”.
“Documentation” means all documentation provided by the Company in connection with the Services, from time to time and/or at any time, including but not limited to terms of service, privacy information, user guidelines, etc.
“Free Services” means Services made available to the Customer by the Company without expense to the Customer. For the avoidance of doubt, the Company has no obligation to make any Free Services available.
“Malicious Code” means code, files, scripts, agents or programs intended to, or could reasonably be expected to, do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Marketplace” means an online directory, catalogue or marketplace of applications that interoperate with the Services, including, for example, the AppExchange at http://www.salesforce.com/appexchange and any successor websites.
“Non-Company Application” means any Web-based, mobile, offline or other software application functionality that interoperates with the Services, that is made available by a party other than the Company via a Marketplace.
“Order Form” means a document executed by the Parties referencing the acquisition by the Customer of certain Services, and all addenda and/or supplements thereto. All Order Forms shall, unless otherwise explicitly stated, be subject to and governed by the terms and conditions of this Agreement.
“Purchased Services” means Services purchased by a Customer pursuant to an Order Form.
“Services” means products and services offered by the Company to the Customer from time to time.
“User” means, an individual authorized by Customer to use Services.
- DATAGROOMR LLC RESPONSIBILITIES
2.1 Provision of Purchased Services. Subject to Customer’s performance of its obligations hereunder, the Company shall (a) make the Services and Content available to Customer pursuant to this Agreement, and the applicable Order Forms and Documentation, (b) provide reasonable necessary support for Purchased Services to Customer, provided however that certain additional support may only be available for a cost as described in detail on an Order Form, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which the Company shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond the Company’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 Company employees), Internet service provider failure or delay, Non- Company Applications, or denial of service attack event, and (d) provide the Services in accordance with applicable laws and regulations.
2.2 Protection of Customer Data. The Company will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). The terms and conditions of the Company’s Data Privacy Addendum (the “DPA”), a copy of which has been provided herewith, are incorporated herein by reference and shall apply to the extent Customer Data includes Personal Data, as defined in the DPA. To the extent Personal Data from the European Economic Area (EEA), the United Kingdom and Switzerland are processed by the Company, its Processor Binding Corporate Rules, the EU-US and/or Swiss-US Privacy Shield, and/or the Standard Contractual Clauses shall apply, as further set forth in the DPA. For the purposes of the Standard Contractual Clauses, Customer and its applicable Affiliates are each the data exporter, and Customer’s acceptance of this Agreement, and an applicable Affiliate’s execution of an Order Form, shall be treated as its execution of the Standard Contractual Clauses and Appendices. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, the Company will make Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, the Company will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited. Capitalized terms not defined herein shall have the meanings ascribed to them in the DPA.
2.3 Beta Services. From time to time, the Company may make Beta Services available to Customer. Customer may choose to try such Beta Services or not in its sole discretion. The Company may revoke access to Beta Services at any time upon written notice to the Customer, for any reason or for no reason whatsoever. Use of Beta Services shall be subject to these terms and conditions, and such other terms and conditions as provided in advance thereof by the Company, and such terms and conditions shall be deemed incorporated herein by reference.
2.4 Free Trial. From time to time, the Company may make free trial Services available to Customer. Customer may choose to try such free trial Services or not in its sole discretion. The Company may revoke access to free trial Services at any time upon written notice to the Customer, for any reason or for no reason whatsoever. Additional trial terms and conditions may appear on the trial registration web page. Use of free trial Services shall be subject to these terms and conditions, and such other terms and conditions as provided in advance thereof by the Company, and such terms and conditions shall be deemed incorporated herein by reference.
2.5 Free Trial and Beta Services Notices. IF A CUSTOMER’S ACCESS TO FREE TRIAL SERVICES OR BETA SERVICES EXPIRES PRIOR TO CUSTOMER OBTAINING PURCHASED SERVICES, ALL CUSTOMER DATA PROVIDED BY CUSTOMER WILL BE LOST AND THE COMPANY HAS NO DUTY TO ASSIST CUSTOMER TO RECOVER ANY SUCH CUSTOMER DATA. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE FREE TRIAL SERVICES AND THE BETA SERVICES ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. CUSTOMER AGREES THAT ALL RISK PERTAINING TO THE USE OF THE FREE TRIAL SERVICES AND THE BETA SERVICES IS ASSUMED BY CUSTOMER. THE COMPANY AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
CUSTOMER SHALL REVIEW THE APPLICABLE SERVICE’S DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.
- USE OF SERVICES AND CONTENT
3.1 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal, and (b) from time to time the Company may make Service upgrades available to the Customer, which Service upgrades shall be governed by this Agreement. Customer 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 the Company regarding future functionality or features.
3.2 Usage Limits. Services and Content are subject to usage limits specified in Order Forms and Documentation. If Customer exceeds any such limitation, the Company may notify Customer of such overage and propose a revised Service subscription. If Customer fails to execute any such revised Services subscription, the Company may charge the Customer a reasonable amount for such overage for so long as such overage persists, and such overage charges shall be paid as set forth in Section 5, herein.
3.3 Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Non-Company Applications with which Customer uses Services or Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify the Company promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Non-Company Applications with which Customer uses Services or Content. Upon any use of the Services in breach of the foregoing by Customer or Users, upon written notice to Customer the Company may immediately suspend any or all Services until the Company determines that such breach has been remedied.
3.4 Usage Restrictions. Customer will not (a) make any Service or Content available to anyone other than Customer or Users, or use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-Company Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-Company Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of Company intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, alter, or create any derivative works of the Services, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.
- INTENTIONALLY OMITTED.
- FEES AND PAYMENT
5.1 Fees. Customer will pay fees for Purchased Services as specified in corresponding Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non- cancellable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
5.2 Invoicing and Payment. Customer will provide the Company with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to the Company. If Customer provides credit card information to the Company, Customer authorizes the Company to charge such credit card for (i) all Purchased Services listed in the Order Form for the initial subscription term, (ii) any renewal subscription term(s) as set forth in the “Term of Purchased Subscriptions” section below, and (iii) any fees due by Customer pursuant to Section 3.2, above. Fees for Services shall be due prospectively, and within not more than thirty (30)) days of Customer’s receipt of a corresponding invoice, provided however that fees due in connection with Section 3.2 above shall be due on an as-invoiced basis. Invoice frequency shall be as set forth on any Order Form, or otherwise annual. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. The Company has no obligation to accept payment by means other than credit card. Customer is responsible for providing complete and accurate billing and contact information to the Company and notifying the Company of any changes to such information.
5.3 Overdue Charges. If any invoiced amount is not received by the Company by the due date, then without limiting the Company’s rights or remedies, (a) those charges shall accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) the Company may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above.
5.4 Suspension of Service and Acceleration. If any charge owing by Customer under this or any other agreement for services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized the Company to charge to Customer’s credit card), the Company may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, the Company will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section below for billing notices, before suspending services to Customer.
5.5 Payment Disputes. the Company will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
5.6 Taxes. The Company ‘s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If the Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the Company will invoice Customer and Customer will pay that amount unless Customer provides the Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, the Company is solely responsible for taxes assessable against it based on its income, property and employees.
- PROPRIETARY RIGHTS AND LICENSES
6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, the Company, its Affiliates, its licensors and Content Providers reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.2 Access to and Use of Content. Customer has the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation.
6.3 License by Customer to Use Feedback. Customer grants to the Company and its Affiliates a worldwide, perpetual, irrevocable, royalty- free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of the Company’s or its Affiliates’ services.
7.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of the Company includes the Services and Content, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Services.
7.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, the Company may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-Company Application Provider to the extent necessary to perform the Company obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
7.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
- REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
8.1 Representations. The undersigned hereby represents and warrants that he or she has all necessary corporate power and authority to bind the Customer to the terms and conditions set forth herein. Customer represents that it is not accessing and will not access the Services (i) for the purpose of monitoring their continued availability, or (ii) if Customer is a direct competitor of the Company (unless otherwise consented to in writing, in advance, by the Company).
8.2 Company Warranties. The Company warrants that during an applicable subscription term (a) this Agreement, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, (b) the Services will perform materially in accordance with the applicable Documentation, and (c) subject to the “Integration with Non-Company Applications” section above, the Company will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
8.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
During the Term, and continuing after the expiration or termination of this Agreement, the Company shall indemnify, defend and hold harmless Customer, its officers, directors, employees, customers, subsidiaries, affiliates, representatives, successors and assigns from and against any and all (a) proceedings, claims, allegations, or suits (“Claims”); and (b) damages, liabilities, losses, costs, expenses, (including but not limited to attorney’s fees, expert witness fees, and court costs), amounts payable under any judgment, verdict, or court order or settlement related to any damages suffered by Customer, Customer customers, or any third party (“Damages”) arising in connection with: (i) the Company’s material breach of any of the representations, warranties, terms or conditions of this Agreement; (ii) any actual or alleged infringement, misappropriation, or violation of any third party intellectual property or other rights resulting from the use, sale, or distribution of the Services by the Company, to the extent that such infringement, misappropriation, or violation is directly or indirectly attributable to the Services; and (iii) the Company’s or its employees or agents violations of laws or regulations.
If Customer’s continued use, sale, or distribution of Services is restricted or prohibited as a result of any actual or alleged infringement, misappropriation, or violation of any third party intellectual property or other rights, the Company shall, at the Company’s option and at no charge to Customer, and in addition to Customer’s other rights and remedies: (i) secure for Customer and Customer’s customers the right to continue using, selling, or distributing the Services as allowed under this Agreement; (ii) modify or replace the infringing components, portions, or processes of the Services so that they are non-infringing with no loss or degradation of features, functionalities, or performance; or (iii) refund to Customer all amounts paid by Customer for the Services.
Customer shall indemnify, defend and hold harmless the Company, its officers, directors, employees, customers, subsidiaries, affiliates, representatives, successors and assigns from and against any and all Claims and Damages relating to: (i) Customer’s breach of any of the representations, warranties, terms or conditions of this Agreement; (ii) Customer’s use of the Free Trial Services and Beta Services (without exception); and (iii) Customer’s or its employees or agents violations of laws or regulations, including attorneys’ and collection fees and expenses.. Customer shall indemnify the Company from any costs and expenses incurred in connection with the enforcement of this section.
- LIMITATION OF LIABILITY
10.1 Limitation of Liability. EXCEPT WITH RESPET TO THE PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
10.2 Exclusion of Consequential and Related Damages. EXCEPT WITH RESPET TO THE PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
- TERM AND TERMINATION
11.1 Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
11.2 Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at the Companyr’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
11.3 Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.4 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with the “Termination” section above, the Company will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by the Company in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to the Company for the period prior to the effective date of termination.
11.5 Surviving Provisions. The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Removal of Content and Non-Company LLC Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as the Company retains possession of Customer Data.
- GENERAL PROVISIONS
12.1 Use of Logo. Customer hereby grants to the Company the express right to use Customer’s company logo in marketing, sales, financial, and public relations materials and other communications solely to identify Customer as a DataGroomr customer. The Company hereby grants to Customer the express right to use the Company’s logo solely to identify the Company as a provider of services to Customer. Other than as expressly stated herein, neither party shall use the other party’s marks, codes, drawings or specifications without the prior written permission of the other party.
12.2 Export Compliance. The Services, Content, other Company technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. The Parties each represent that it is not named on any U.S. government denied-party list. Customer will not permit any User to access or use any Service or Content 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.
12.3 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
12.4 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between the Parties regarding Customer’s use of Services and Content 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 Customer purchase order or in any other Customer 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. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
12.5 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
12.6 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
12.7 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
12.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
12.9 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, the Company will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.10 Contracting Entity, Notices, Governing Law, and Venue. The Company entity entering into this Agreement, the address to which Customer should direct notices under this Agreement, the law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have jurisdiction over any such dispute or lawsuit is the following:
1729 McNelis Drive
Southampton, PA 18966
12.11 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.
12.12 Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.