Last Updated: December 6th, 2024
Licensing Terms
This MASTER SUBSCRIPTION AGREEMENT (this “Agreement”) is entered into as of this __ day of __, 202_ (the “Execution Date” and, if left blank, the Effective Date (defined below) shall be controlling), by and between Datagroomr LLC, a Pennsylvania limited liability company (the “Company”) and [_____], a [_____] [_____], or if this Agreement is entered into by reference on an Order Form, the entity listed on an Order Form (together with all of its affiliates given access to the Services (as defined herein), the “Customer”). In the event a Customer is using the Free, Trial or Beta Services, and no Order Form is executed among the Parties, the Customer hereby acknowledges and agrees that the terms hereof are expressly binding on Customer and all references to Customer shall be deemed to include any such Party, regardless of whether an Agreement or Order Form are executed among the Parties. Company and Customer may hereinafter be collectively referred to as the “Parties” and each individually as a “Party”.
This Agreement governs Customer’s acquisition and use of certain Services (as defined below), including any free, beta or trial Services (to the extent applicable).
This Agreement will be deemed effective upon (i) Customer’s acceptance of the Agreement via enrollment in the Services or (ii) the Execution Date(the “Effective Date”).
- DEFINITIONS
“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 end-user any usage guides and policies provided by the Company in connection with the Services, from time to time and/or at any time.
“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 that 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 provided by Customer or a third party and/or listed 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.
“Services” means Services purchased by a Customer pursuant to an Order Form, or enrolled by a Customer in the event of Free, Trial or Beta Services.
“User” means, an individual authorized by Customer to use Services.
- DATAGROOMR LLC RESPONSIBILITIES
2.1. Provision of 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, (b) provide reasonable necessary support for Services to Customer, provided however that certain additional support may only be available for a cost as described in detail on an Order Form, and (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which the Company shall endeavor to 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 problems (other than one involving Company employees), Internet service provider failure or delay, Non- Company Applications, or denial of service attack event.
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 Processing 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. Safeguards may also include, de-identifying and/or aggregating Customer Data such that it (i) cannot be associated with Customer; and (ii) is not considered Personal Data under the applicable laws (“De-Identified Data”). 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 whether to try such Beta Services 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. Customer’s use of Beta Services shall be subject to Section 3 and such other terms and conditions as provided by the Company.
2.4. Free Trial. From time to time, the Company may make free trial Services available to Customer. Customer may choose whether to try such free trial Services 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. Additional trial terms and conditions may appear on the trial registration web page. Customer’s use of free trial Services shall be subject to Section 3 and such other terms and conditions as provided by the Company.
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 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, THE FREE TRIAL SERVICES AND THE BETA SERVICES ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND COMPANY WILL HAVE NO, AND EXPRESSLY DISCLAIMS LIABILITY FOR THE BETA SERVICES. 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. COMPANY DOES NOT WARRANT THAT THE FREE TRIAL OR BETA SERVICES: (A) WILL BE ERROR- FREE, (B) WILL BE SECURE, (C) WILL MEET ANY SPECIFIED SERVICE LEVEL, OR (D) WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.
CUSTOMER SHALL REVIEW THE APPLICABLE TRIAL SERVICE’S DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE TRIAL SERVICES BEFORE MAKING A PURCHASE.
- USE OF SERVICES AND CONTENT
3.1. Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) 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 Services upgrades available to the Customer, which Services 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, Content, and Customer Data are subject to usage limits specified in the relevant Order Form(s) and Documentation. If Customer exceeds any such limitation, the Company will notify Customer of such overage and Customer will pay the amount of the overage in accordance with Section 4 below. Notwithstanding the foregoing, Company may propose and the Parties may enter into a revised Services subscription with new usage limits, and which will incorporate the cost of the initial overage.
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 the 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 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 Services or Content available to anyone other than Customer or Users, or use any Services 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 Services or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use the Services 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 the Services or Non-Company Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (f) attempt to gain unauthorized access to the Services or Content or its related systems or networks, (g) permit direct or indirect access to or use of the Services or Content in a way that circumvents a contractual usage limit, or use the 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 the Services 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 the Services 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 Services or Content, (3) copy any ideas, features, functions or graphics of the Services or Content, or (4) determine whether the Services or Content are within the scope of any patent or other intellectual property right, or (l) conduct any business or activity that is competitive with the Company’s business and/or the Services.
3.5. Verification Credits. From time to time the Customer may purchase credits to use the Services (“Verification Credits”), which Verification Credits may be allocated to Customer’s affiliates in Customer’s discretion. Verification Credits expire twelve (12) months from the date purchased by Customer and no refund will be provided for expired Verification Credits.
3.6. Non-Company Applications.
3.6.1. Customer, or Company at Customer’s direction, may use Non-Company Applications with the Services. The Non-Company Application provider of each Non-Company Application is solely responsible for that Non-Company Application, the content therein, and any claims that Customer or any other party may have relating to that Non-Company Application or Customer’s use of that Non-Company Application. Customer acknowledges that Company is not responsible for any Non-Company Application, the content therein, or any claims that Customer or any other party may have relating to a Non-Company Application or Customer’s use of that Non-Company Application. By using a Non-Company Application with the Services, Customer grants Company permission to share Customer Data with the Non-Company Application provider as necessary in order to provide Customer the Services.
3.6.2. Company makes no representations, endorsements, guarantees, or warranties, express or implied, with respect to Non-Company Applications, including but not limited to the continuing availability of such Non-Company Applications or the continuing ability to use and integrate the Services with Non-Company Applications. Company is not responsible for any disclosure, modification or deletion of Customer Data caused by, or resulting from access by, a Non-Company Application or its provider. Company will have no, and expressly disclaims any, liability with respect to Non-Company Applications.
- FEES AND PAYMENT
4.1. Fees. Customer will pay Fees for the 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.
4.2. 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. No terms in a purchase order will apply to Customer’s use of the Services and are hereby rejected by Company. If Customer provides credit card information to the Company, Customer authorizes the Company to charge such credit card for (i) all Services listed in the Order Form(s) for the initial subscription term, (ii) any renewal subscription term(s) as set forth in Section 10.2 section below, and (iii) any overage fees due by Customer pursuant to Section 3.2, above. Customer will pay all Fees within 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.
4.3. 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.
4.4. Suspension of Service. Except where Customer disputes any Fees in accordance with Section 4.5 below, if Customer fails to pay the Fees by the invoice due date, the Company may, without limiting its other rights and remedies, 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 before suspending Services to Customer.
4.5. Payment Disputes. Company may dispute an invoice in its reasonable discretion, provided that Company provides notice of the dispute before the invoice due date and cooperates diligently and in good faith to resolve the dispute. All Fees not disputed by the invoice due date are deemed accepted by Company.
4.6. Taxes. The 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
5.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, the Company, its Affiliates, its licensors and Content providers reserve all rights, title and interest in and to the Services and Content, including all of related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
5.2. Right to Use Services and Content. Company grants to Customer a limited, revocable (in accordance with the terms herein), non-sublicenseable, non-transferable (except in accordance with the terms herein), right to access and use the Services and applicable Content during the Term, subject to the terms of applicable Order Forms, this Agreement and the Documentation.
5.3. 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.
5.4. De-Identified Data. Unless otherwise agreed, the Company may use or modify De-Identified Data for product development and other business purposes, including, without limitation, disclosing or transferring the same to third parties. Company shall not reidentify De-Identified Data or otherwise link De-Identified Data with any other data such that Customer, or Customer Data, may be identified.
- CONFIDENTIALITY
6.1. 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 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 De-Identified Data or 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.
6.2. 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.
6.3. 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
7.1. 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 or in any manner that is in competition with Company or otherwise not in compliance with this Agreement (unless otherwise consented to in writing, in advance, by the Company).
7.2. Company Warranties. The Company warrants that during an applicable subscription term, the Services will perform materially in accordance with the applicable Documentation. If Company breaches this warranty, Company, at its sole option and expense, may make reasonable efforts to correct material defects in the Services that are identified and documented by Customer and confirmed by Company or may replace any defective Services within a reasonable timeframe of notice being provided by Customer. If Company determines, in its sole, reasonable discretion, that repair or replacement of the Services is not commercially practicable, Company may terminate the applicable Order Form and will provide a pro-rata refund for any pre-paid fees as calculated from the effective date of termination.
7.3. 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. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES AND DOCUMENTATION ARE PROVIDED ON AN “AS IS” AND AS AVAILABLE BASIS, AND COMPANY DOES NOT WARRANT THAT THE SERVICES WILL (A) BE ERROR- FREE, (B) MEET ANY SPECIFIED SERVICE LEVEL, OR (C) OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.
- INDEMNIFICATION
8.1 By Company.
8.1.1. 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) third-party proceedings, claims, allegations, or suits (“Claims”); and (b) damages, liabilities, losses, costs, expenses, (including but not limited to reasonable attorney’s fees), amounts payable under any judgment, verdict, or court order or settlement related to any damages suffered by Customer (“Damages”) arising in connection with: any actual or alleged infringement, misappropriation, or violation of any third party intellectual property 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, provided that such Services are unmodified by Customer.
8.1.2. If Customer’s continued use of the Services is restricted or prohibited as a result of any actual or alleged infringement, misappropriation, or violation of any third party intellectual property rights, the Company shall, at the Company’s option and at no charge to Customer, either: (i) secure for Customer the right to continue using the Services as allowed under this Agreement; or (ii) modify or replace the infringing components, portions, or processes of the Services so that they are non-infringing with no material loss or degradation of features, functionalities, or performance. If Company determines, in its reasonable discretion, that neither options (i) or (ii) are commercially practicable, Company will terminate the relevant Order Form and refund to Customer all prepaid Fees paid by Customer for the Services as calculated from the effective date of termination. This Section 8.1.2 shall be Customer’s sole remedy for any actual or alleged infringement, misappropriation or violation of any third-party intellectual property.
8.2 By Customer. 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
9.1. Limitation of Liability. EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF COMPANYTOGETHER 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.
9.2. Exclusion of Consequential and Related Damages. EXCEPT WITH RESPET TO EACH PARTY’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL CUSTOMER OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, LOSS OF DATA, COST OF REPLACEMENT, 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
10.1. Term of Agreement. This Agreement commences on the Effective Date and continues until the earlier of: (i) termination of the Agreement in accordance with the terms herein and (ii) expiration or termination of all subscriptions hereunder.
10.2. Term of 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 Company’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.
10.3. Termination for Cause. A Party may terminate this Agreement for cause (i) upon thirty (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.
10.4. Refund or Payment upon Termination. If this Agreement is terminated by Customer for cause, 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 for cause, 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. In the event of refund due to improper payment method or payment error, Customer will be charged a transaction fee to cover processing and administrative costs. This cost will not exceed 5% of the payment amount.
10.5. Surviving Provisions. Section 2.5 “Free Trial and Beta Services Notices,” Section 5 “Fees and Payment,” Section 6 “Proprietary Rights and Licenses,” Section 7 “Confidentiality,” Section 7 “Representations, Warranties, Exclusive Remedies and Disclaimers,” Section 8 “Indemnification,” Section 9 “Limitation of Liability,” Section 10.4 “Refund or Payment upon Termination,” this Section 10.5 “Surviving Provisions” and Section 11 “General Provisions” will survive any termination or expiration of this Agreement, and Section 2.2 “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
11.1. 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. 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.
11.2. 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. Customer represents 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.
11.3. 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 DPA (if applicable), (2) the applicable Order Form, and (3) this Agreement. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
11.4. 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.
11.5. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
11.6. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
11.7. 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.
11.8. 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, Company may assign this Agreement in its entirety (including all Order Forms), without Customer’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 Company 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 Company may terminate this Agreement upon written notice without further liability to either Party. 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.
11.9. 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. Notices to Company should be addressed to:
DataGroomr, LLC
1729 McNelis Drive
Southampton, PA 18966
United States of America
11.10. Agreement to Governing Law and Jurisdiction. This Agreement and any dispute related to this Agreement shall be governed by and interpreted in accordance with the laws of the State of Pennsylvania without regard to its conflict of laws provisions. If any litigation is validly instituted in connection with this Agreement, the parties hereby consent to the exclusive personal jurisdiction of the state and federal courts in Pennsylvania and waive any objection as to venue or inconvenient forum.