Master Subscription Agreement
This Master Subscription Agreement (the "Agreement"), is made and entered by and between you, (“Customer”), and Galley Solutions, Inc., a Delaware Corporation doing business as Galley (“Provider”).
This Agreement is applicable to all persons who use or the Services, in their company’s capacity or in an individual capacity, including authorized users representing the company, its employees, or other persons using or accessing the Services (collectively, “Customers” and each, a “Customer”). If Customer is agreeing to these terms on behalf of a business or an individual other than Customer, Customer represents and warrants that Customer has authority to bind that business or other individual to this Agreement, and Customer’s agreement to these terms will be treated as the agreement of such business or individual. In that event, “Customer” also refers to that business or individual. By clicking the applicable button to indicate Customer’s acceptance of this Agreement, or by accessing or using the Services, Customer agrees, effective as of the date of such action, to be bound by the Agreement.
This Agreement permits Customer to purchase subscriptions to online software-as-a-service products and other services from Provider pursuant to any Provider ordering documents, online registration, order descriptions or order confirmations referencing this Agreement ("Order Form(s)") and sets forth the basic terms and conditions under which those products and services will be delivered. This Agreement will govern Customer's initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
The "Effective Date" of this Agreement is the date which is the earlier of (a) Customer's initial access to any Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement.
Modifications to this Agreement: From time to time, Provider may modify this Agreement. Unless otherwise specified by Provider, changes become effective for Customer upon renewal of Customer's current Subscription Term (as defined below) or entry into a new Order Form. Provider will use reasonable efforts to notify Customer of the changes through communications via Customer's account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Order Form, and in any event continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer's acceptance of such updated version. If Provider specifies that changes to the Agreement will take effect prior to Customer's next renewal or order (such as for legal compliance or product change reasons) and Customer objects to such changes, Customer may terminate the applicable Subscription Term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the applicable Services for the terminated portion of the Subscription Term.
Please review Section 15 of this Agreement carefully, as it contains an arbitration provision and class action waiver which requires Customer to resolve disputes with Provider through final, binding arbitration on an individual basis. By entering into this Agreement, Customer is acknowledging that Customer has read and that Customer understands the terms of this Agreement and that Customer agrees to be bound by the arbitration provision and class action waiver.
1.1 “Access Credentials” means any username, 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 Services.
1.2 “AUP” means Provider’s Acceptable Use Policy, available at https://galleysolutions.com/company/terms-policies.
1.3 “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
1.4 “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and Person, whether through the ownership of voting securities, by contract or otherwise.
1.5 “Authorized Users” means Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder.
1.6 “Customer Data” means 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.For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
1.7 “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.
1.8 “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.
1.9 “Effective Date” means the date that is the earlier of (a) Customer’s initial access to any Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement.
1.10 “Feedback” means any ideas, suggestions, guidance or other information disclosed by Customer related to Provider’s Software, Services, Documentation and Confidential Information, including any intellectual property rights relating to the foregoing.
1.11 “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 theServices or Provider Systems as intended by this Agreement. Harmful Code does not include any Provider Disabling Device.
1.12 “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.
1.13 “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.
1.14 “Losses” means any and all losses, damages, 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.
1.15 “Order Form(s)” means such Provider order form provided to Customer for Customer’s purchase of subscriptions toon line software-as-a-service products and other Services from Provider in any medium in connection with this Agreement.
1.16 “Permitted Use” means any use of the Services by an Authorized User for the benefit of Customer in the ordinary course of its internal business operations.
1.17 “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
1.18 “Personal Information” means information that Customer provides or for which Customer provides access to Provider, or information which Provider creates or obtains on behalf of Customer, in accordance with this Agreement that: (i) directly or indirectly identifies an individual (including, for example, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, genetic, health, or health insurance data, answers to security questions, and other personal identifiers),in case of both subclauses (i) and (ii), including Sensitive PersonalInformation as defined herein). Customer’s business contact information is not by itself Personal Information.
1.19 “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, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed”have correlative meanings.
1.20 “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.
1.21 “Provider Materials” means the Services, specifications,Documentation, and Provider Systems and any and all other information, 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 orProvider Systems. For the avoidance of doubt, Provider Materials includeResultant Data and any information, data, or other content derived fromProvider’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.
1.22 “Provider Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of Provider or any Subcontractor.
1.23 “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 byProvider or through the use of third-party services.
1.24 “Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.
1.25 “Resultant Data” means data and information related to Customer’s use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
1.26 “Services” means the products and services that are ordered by Customer, whether on a trial or paid basis, and made available online by Provider, via the applicable subscriber login link, Order Form and other web pages designated by Provider, including, individually and collectively, the applicable Software, updates, and Documentation. “Services”exclude (i) Third Party Services as that term is defined in this Agreement; and (ii) any additional features or associated Services that are not provided under this Agreement. From time to time the names and descriptions of theServices or any individual Service may be changed.
1.27 “Software” means all source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services.
1.28 “Subscription Term” or “Term” of each Service is provided on a subscription basis for a set term designated on the Order Form subject to this Agreement.
1.29 “Third Party Services” means third party products, applications, services, software, networks, systems, directories, websites, databases and information which a Service links to, or which Customer may connect to or enable in conjunction with a Service, including, without limitation, Third Party Services which may be integrated directly into Customer account by Customer or at Customer’s direction.
1.30 “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 theServices that are not proprietary to Provider.
2.1 Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 16.10) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited toCustomer’s internal use. Provider shall provide to Customer the Access Credentials within a reasonable time following the Effective Date.
2.2 Provider API. All use of Provider’s API is subject to the API Agreement (https://www.galleysolutions.com/company/terms-policies). If Provider makes access to any APIs available as part of the Services, Provider reserves the right to place limits on access to such APIs (e.g., limits on numbers of calls or requests). Further, Provider may monitor Customer’s usage of such APIs and limit the number of calls or requests Customer may make if Provider believes that Customer’s usage is in breach of this Agreement or may negatively affect the Services (or otherwise impose liability on Provider).
2.3 Documentation License. Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 16.10) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
2.4 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
(a) Provider has and will retain sole control over the operation, provision, maintenance, and management of the Provider Materials; 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 Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any AuthorizedUser, including any: (i) information, instructions, or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of theServices or Provider Materials; and (iii) conclusions, decisions, or actions based on such use.
2.5 Reservation of Rights. Nothing in this Agreement 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.
2.6 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 this Agreement. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. 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.
2.7 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.
2.8 Subcontractors. Provider may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”).
2.9 Trial Subscriptions. If Customer receives free accessor a trial or evaluation subscription to the Service (a “Trial Subscription”), thenCustomer may use the Services in accordance with the terms and conditions of this Agreement for a period of fourteen (14) days or such other period granted by Provider (the “Trial Period”). Trial Subscriptions are permitted solely forCustomer’s use to determine whether to purchase a paid subscription to the Services. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term. If Customer does not enter into a paid Subscription Term, this Agreement and Customer’s right to access and use the Services will terminate at the end of the Trial Period. Provider has the right to terminate a Trial Subscription at any time for any reason.NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, PROVIDER WILL HAVENO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.
2.10 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 AuthorizedUser’s, or any other Person’s access to or use of all or any part of theServices 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 good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used theServices beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the 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) this Agreement expires or is terminated. This Section 2.10 does not limit any of Provider’s other rights or remedies, whether at law, in equity, or under this Agreement.
3. Use Restrictions; Service Usage.
3.1 Use Restrictions. Customer shall not, and shall not permit any otherPerson to, access or use the Services or Provider Materials except as expressly permitted by this Agreement 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 thisAgreement 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 AuthorizedUser 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 toany third party, in whole or in part;
(g) remove, delete, alter, or obscure any trademarks, specifications, 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 theServices 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 theServices or Provider Materials for purposes of competitive analysis of theServices or Provider Materials, the development, provision, or use of a competing software service or product or any other purpose that is to theProvider’s detriment or commercial disadvantage
(j) otherwise accessor use the Services or Provider Materials beyond the scope of the authorization granted under this Section 3.1.
3.2 Service Usage. Customer’s applicable Order Form sets forth Fees for designated phases and/or an additional monthly fee (each a “Service Allocation”), beginning with the Fees payable by Customer for the phase in effect as of the Effective Date.Provider may increase its Service Allocation and corresponding Fee obligations inapplicable Order Form. Provider has no obligation to permit Customer to exceed its then-current Service Allocation.
4. Customer Obligations.
4.1 Customer Systems and Cooperation. Customer shall at all times during the Term set up, maintain, and operate in good repair and in accordance with the specifications all Customer Systems on or through which theServices are accessed or used and 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 this Agreement.
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 byCustomer’s delay in performing, or failure to perform, any of its obligation sunder this Agreement (each, a “CustomerFailure”).
4.3 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.1, 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 theServices 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.
4.4 Non-Solicitation. During the Term and for two (2) years after, Customer shall not, and shall not assist any other Person to, directly or indirectly recruit or solicit (other than by general advertisement not directed specifically to any Person or Persons) for employment or engagement as an independent contractor any Person then or within the prior three (3) months employed or engaged by Provider or any Subcontractor and involved in any respect with the Services or the performance of this Agreement.In the event of a violation of this Section 4.4, Provider will be entitled to liquidated damages equal to the compensation paid by Provider to the applicable employee or contractor during the prior twelve (12) months.
5. Service Levels and Credits.
5.1 Service Support. The Services include Provider’s standard customer support services (“Support Services”) which is attached as listed at https://www.galleysolutions.com/policies/service-and-support-agreement(the “Support Exhibit”). Provider may amend the Support Exhibit from time to time in its sole discretion.
6. Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives.PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION,DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
7.1 Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of CustomerData for Processing by the Services.
8. Fees and Payment.
8.1 Fees. Customer shall pay all Fees on or prior to the due date set forth in applicable OrderForm (“Fees”) and in accordance with this Section 8. Customer shall make all payments hereunder in US dollars. Customer shall make payments to the address or account specified in applicable Order Form or such other address or account as Provider may specify in writing from time to time.
8.2 Subscription Term and Renewals. Unless otherwise specified on the applicable Order Form, each Subscription Term will automatically renew for additional twelve month periods unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term.
8.3 Fees and Payment. All fees are as set forth in the applicable Order Form and will be paid by Customer within thirty (30) days of invoice, unless (a) Customer is paying via Credit Card (as defined below) or(b) otherwise specified in the applicable Order Form. Except as expressly set forth in Section 11, Section 12, and Section 13, all fees are non-refundable.
8.4 Payment Via Credit Card. If you are purchasing theServices via credit card, debit card or other payment card (“Credit Card”), the following terms apply:
(a) Recurring Billing Authorization. By providing CreditCard information and agreeing to purchase any Services, Customer hereby authorizes Provider (or its designee) to automatically charge Customer’s CreditCard on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) during the Subscription Term for all fees accrued as of that date (if any) in accordance with the applicableOrder Form. Customer acknowledges and agrees that the amount billed and charged each month may vary depending on Customer’s use of the Services and may include subscription fees for the remainder of Customer’s applicable billing period and overage fees for the prior month.
(b) Foreign Transaction Fees. Customer acknowledges that for certain Credit Cards, the issuer of Customer’s Credit Card may charge a foreign transaction fee or other charges.
(c) Invalid Payment. If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise,Customer remains responsible for any amounts not remitted to Provider and Provider may, in its sole discretion, either (i) invoice Customer directly for the deficient amount, (ii) continue billing the Credit Card once it has been updated by Customer(if applicable) or (iii) terminate this Agreement.
(d) Changing Credit Card Information. At any time,Customer may change its Credit Card information by entering updated Credit Card information via the “Settings” page on the Dashboard.
(e) Trial Period Billing. As set forth in Section 2.9 (Trial Subscriptions), if Customer does not enter into a paid Subscription Term following a Trial Period, this Agreement and Customer’s right to access and use the Services will terminate at the end of the Trial Period and Customer’s CreditCard will not be charged.
(f) Payment of Outstanding Fees. Upon any termination or expiration of the Subscription Term, Provider will charge Customer’s CreditCard (or invoice Customer directly) for any outstanding fees for Customer’s use of the Services during the Subscription Term, after which Provider will not charge Customer’s Credit Card for any additional fees.
8.5 Suspension of Service. If Customer’s account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Provider reserves the right to suspend Customer’s access to the applicable Service (and any related services) without liability to Customer until such amounts are paid in full. Provider also reserves the right to suspend Customer’s access to theServices without liability to Customer if Customer’s use of the Services is in violation of the AUP.
8.6 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, 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.
8.7 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 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
(b) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and
(c) if such failure continues for five (5) 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 toCustomer or any other Person by reason of such suspension.
8.8 Fee Increases. Provider may increase Fees by providing written notice to Customer at least 30 calendar days prior to such increase, and applicable Order Form will be deemed amended accordingly. Subject to earlier termination as provided below, this Agreement is for the InitialService Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term(collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
8.9 Reimbursable Expenses. Customer shall reimburse Provider for out-of-pocket expenses incurred by Provider in connection with performing the Services (“ReimbursableExpenses”).
(a) Agreement to Maintain Records. Customer shall maintain consistently applied, accurate, and complete books, records, and other documents to document the amount and calculations of, all its revenue, costs of goods sold, including food and labor costs, operational expenditures, and all other Customer expenses during the Term and for a period of two (2) years following the termination of this Agreement. Customer shall maintain the books, records, and other documents in conformance with generally accepted accounting principles.
(b) Audit Procedure. Provider or its nominee (including its accountants and auditors) may, in Provider’s sole discretion request fourteen (14) days notice, inspect and audit Customer’s records, as set forth in Section 8.10 (a), at any time during the Term and for two (2) years following the termination or earlier expiration of this Agreement. All audits will be conducted no more frequently than once in any two (2) month period, and in a manner that does not unreasonably interfere with Customer’s business operations. Customer shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may be requested by or on behalf of Provider with respect to such audit.
(c) Cost and Results of Audit. If an underpayment of Fees is equal to or greater than a ten percent (10%) difference, then the entire cost of the audit will be reimbursed by Customer.
9.1 Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”).Subject to Section 9.2, “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, recipes, 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 ofProvider and the financial terms and existence of this Agreement are the Confidential Information of each of the parties.
9.2 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 thisAgreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with thisAgreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference toor use of any Confidential Information of the Disclosing Party.
9.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for five (5) years:
(a) not access or useConfidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) except as may be permitted by and subject to its compliance with Section 9.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of theReceiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 9.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9;
(c) safeguard the ConfidentialInformation 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) promptly notify theDisclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps with Disclosing Party to prevent further unauthorized use or disclosure; and
(e) ensure itsRepresentatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 9.
(f) Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 9 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such ConfidentialInformation ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
9.4 Compelled Disclosures. If the ReceivingParty or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the DisclosingParty can seek a protective order or other remedy or waive its rights underSection 9.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, 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 9.4, the ReceivingParty remains required by Law to disclose any Confidential Information, theReceiving Party shall disclose only that portion of the ConfidentialInformation that, on the advice of the Receiving Party’s legal counsel, the ReceivingParty is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such ConfidentialInformation will be afforded confidential treatment.
10. Intellectual Property Rights.
10.1 Provider Materials. All right, title, and interest in and to the Provider Materials, including all Intellectual Property Rights therein, are and will remain with Provider and, with respect toThird-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to theThird-Party Materials. Customer has no right, license, or authorization with respect to any of the Provider Materials except as expressly set forth inSection 2.1 or the applicable third-party license, in each case subject to Section 3.1. All other rights in and to the Provider Materials are expressly reserved by Provider. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
10.2 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 PropertyRights relating thereto, subject to the rights and permissions granted inSection 10.4.
10.3 Feedback. Feedback is given entirely voluntarily and Provider will be free to use, disclose, reproduce, license, or otherwise distribute and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind. Customer grants Provider a perpetual, worldwide, fully transferable, sublicensable, non-revocable, fully paid-up, royalty free license to use the Feedback provided to Provider in any way.
10.4 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to CustomerData as are necessary or useful to Provider, its Subcontractors, and theProvider Personnel to enforce this Agreement and exercise Provider’s, itsSubcontractors’, and the Provider Personnel’s rights and perform Provider’s, its Subcontractors’, and the Provider Personnel’s obligations hereunder.
11. Representations and Warranties.
11.1 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 this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party;
(d) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms; and
(e) it has reviewed Section 15 of this Agreement carefully, as it contains an arbitration provision and class action waiver which requires Customer and Provider to resolve disputes arising under this Agreement through final, binding arbitration on an individual basis.
11.2 Additional Provider Representations, Warranties, and Covenants. Provider represents, warrants, and covenants toCustomer 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 this Agreement.
11.3 Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants toProvider 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 byProvider and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual PropertyRights, or any privacy or other rights of any third party or violate any applicableLaw.
11.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11.1 AND SECTION 11.2, ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED “AS IS.” PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE,OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS,OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE,FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “ASIS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
12.1 Provider Indemnification. Provider shall indemnify, defend, and hold harmless Customer and assigns (each, a “Customer Indemnitee”) from and against any and all Losses incurred by Customer Indemnitee resulting from any Action by a third party (other than an Affiliate of a Customer Indemnitee that Customer’s or an Authorized User’s use of the Services (excluding Customer Data and Third-Party Materials) in accordance with this Agreement (including the specifications) infringes or misappropriates such third party’s US patents, copyrights, or trade secrets. The foregoing obligation does not apply to the extent that the alleged infringement arises from:
(a) Third-Party Materials or Customer Data;
(b) access to or use of the Provider Materials in combination with any hardware, system, software, network, or other materials or service not provided by Provider or specified for Customer’s use in the Documentation, unless otherwise expressly permitted by Provider in writing;
(c) modification of theProvider Materials other than: (i) by or on behalf of Provider; or (ii) withProvider’s written approval in accordance with Provider’s written specification;
(d) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Provider; or
(e) act, omission, or other matter described in Section 12.2(a), Section 12.2(b), Section 12.2(c), or Section 12.2(d), whether or not the same results in any Action against or Losses by any Provider Indemnitee.
12.2 Customer Indemnification. Customer shall indemnify, defend, and hold harmless Provider and its Subcontractors and Affiliates, 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 resulting from any Action by a third party (other than an Affiliate of a Provider Indemnitee) that arise out of or result from, or are alleged to arise out of or result from:
(a) Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with this Agreement;
(b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or anyAuthorized User, including Provider’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider;
(c) allegation off acts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
(d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or anyAuthorized User, in connection with this Agreement.
12.3 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 12.1 or Section 12.2, as the case maybe. 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 promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. The Indemnitee’s failure to perform any obligations under this Section 12.3 will not relieve the Indemnitor of its obligations under this Section 12, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
12.4 Mitigation. If any of the Services or ProviderMaterials are, or in Provider’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual PropertyRight, or if Customer’s or any Authorized User’s use of the Services orProvider 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 this Agreement;
(b) modify or replace the Services and Provider Materials, in whole or in part, to seek to make theServices 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 this Agreement; or
(c) by written notice to Customer, terminate this Agreement with respect to all or part of the Services and Provider Materials, and require Customer to immediately cease any use of the Services and Provider Materials or any specified part or feature thereof.
12.5 Sole Remedy. THIS SECTION 12 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND PROVIDER MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
13. Limitations of Liability.
13.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, 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, OTHER THAN FORTHE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS PURSUANT TO SUPPORT EXHIBIT; (c)LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION;OR (f) 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 OFITS ESSENTIAL PURPOSE.
13.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE),STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14. Term and Termination.
14.1 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) Provider may terminate the Services and this Agreement by giving Customer at least thirty(30) days’ prior written notice. In addition to Provider’s foregoing termination right, Provider may immediately suspend or restrict Customer’sAccount; suspend or restrict Customer’s access to any Services; block Customer’s ability to use any particular feature of a Service; or immediately terminate the Services and this Agreement, in each case with or without notice to Customer, in the event that: (i) Provider has any reason to suspect or believe that Customer may be in violation of this Agreement; (ii) Provider determines that Customer’s actions are likely to cause legal liability for or material negative impact to Provider;
(b) Provider may terminate this Agreement, effective on written notice to Customer, if Customer:(i) fails to pay any amount when due hereunder, and such failure continues more than seven (7) calendar days after Provider’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3.1 , Section 7.3, or Section 9;
(c) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 calendar days after the non-breaching party provides the breaching party with written notice of such breach; and
(d) either party may terminate this Agreement, 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.
14.2 Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
(b) 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 ProviderMaterials or Provider’s Confidential Information; and (ii) permanently erase all Provider Materials and Provider’s Confidential Information from all systemsCustomer directly or indirectly controls; and (iii) certify to Provider in a signed written instrument that it has complied with the requirements of thisSection 14.2(b);
(c) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party’s Confidential Information; and (ii) Provider may retainCustomer Data; (iii) Customer may retain Provider Materials, in the case of each of subclause (i), (ii) and (iii) in its then current state and solely to the extent and for so long as required by applicable Law; (iv) Provider may also retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (v) all information and materials described in this Section 14.2(c) will remain subject to all confidentiality, security, and other applicable requirements of thisAgreement;
(d) Provider may disable all Customer and Authorized User access to the Provider Materials;
(e) if Customer terminates this Agreement pursuant to Section 14.1(b), Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination;
(f) if Provider terminatesthis Agreement pursuant to Section 14.1(a) or Section 14.1(b), all Fees thatwould have become payable had the Agreement remained in effect until expirationof the Term will become immediately due and payable, and Customer shall paysuch Fees, together with all previously-accrued but not yet paid Fees andReimbursable Expenses, on receipt of Provider’s invoice therefor
14.3 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.1, Section 9, Section 11.4, Section 12, Section 13, Section 14.2, this Section 14.3, and Section 16.
15.1 Notwithstanding any other provision in this Agreement, and except as otherwise set forth in this section, if either Customer or Provider has any dispute, controversy, or claim, whether founded in contract, tort, statutory, or common law, concerning, arising out of, or relating to this Agreement or the Services, including any claim regarding the applicability, interpretation, scope, or validity of this arbitration clause and/or this Agreement (each of the foregoing, a “Legal Claim”)that cannot be resolved directly between Provider and Customer, then such Legal Claim will be settled by individual (not class or class-wide), confidential, binding arbitration administered by the American Arbitration Association (“AAA”)in accordance with the then-current Commercial Arbitration Rules and MediationProcedures of the AAA (the “AAA Rules”), including any expedited procedures. To initiate an arbitration proceeding, an arbitration claim must be submitted by the claimant (the “Claimant”) to the AAA, and a written Demand for Arbitration must be provided to the other party (the “Opposing Party”), pursuant to the AAARules. Arbitration hearings will be held in San Diego, California or any other location that is mutually agreed upon by Customer and Provider. A single arbitrator will be mutually selected by Provider and Customer and shall be (i)a practicing attorney licensed to practice law in California or a retired judge; and (ii) selected from the arbitrators on the AAA’s roster of commercial dispute arbitrators (collectively, the “Arbitrator Requirements”). If Provider and Customer cannot mutually agree upon an arbitrator within ten (10) days of the Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the AAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable attorneys’ fees and expert witness fees. The award rendered by the arbitrator shall be final and binding upon Customer and Provider. A judgment on the award may be entered and enforced in any court of competent jurisdiction. Provider may, in its sole discretion, commence an action in any state or federal court of competent jurisdiction within the County of San Diego, California, for any monetary amounts that Customer owes to Provider (each, an “Action”). Customer hereby waives any objection to jurisdiction or venue, or any defense claiming lack of jurisdiction or improper venue, in any Action brought by Provider in such courts.
15.2 Customer and Provider agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act (Title 9 of the UnitedStates Code) shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement. CUSTOMER FURTHER ACKNOWLEDGES,UNDERSTANDS, AND AGREES THAT CUSTOMER AND PROVIDER ARE EACH WAIVING THE IRRESPECTIVE RIGHTS TO A TRIAL BY JURY AS TO DISPUTES HEREUNDER AND THAT CUSTOMER IS WAIVING ITS RIGHT TO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ARISING FROM THIS AGREEMENT.
16.1 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement 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.
16.2 Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that Provider may, without Customer’s consent, include Customer’s name and other indicia in its lists of Provider’s current or former customers ofProvider in promotional and marketing materials.
16.3 Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
16.4 US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. §2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212.Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services andDocumentation as are granted to all other end users, in accordance with (a) 48C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
16.5 Notices. Any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 16.5):
If to Provider:
8910 University Center Lane Aventine, San Diego, California
If to Customer:
Address Specified on Order Form
Email: Specified on Order Form
Attention: Specified on Order Form
Notices sent will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, email, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the fifth (5) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
16.6 Interpretation. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of thisAgreement to the same extent as if they were set forth verbatim herein.
16.7 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
16.8 Entire Agreement. This Agreement, 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 this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
16.9 Precedence. In the event of any conflict between this Agreement and any Order Form, such Order Form will take precedence.
16.10 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Provider’s prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under thisAgreement for which Provider’s prior written consent is required. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Provider may freely transfer, subcontractor otherwise assign any of its rights and obligations, in whole or in part, under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 16.10 is void. ThisAgreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
16.11 Force Majeure.
(a) 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 this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any obligations to make payments), 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 date of this Agreement, 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 thisAgreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of 30 days or more.
16.12 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective 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 this Agreement.
16.13 Amendment and Modification; Waiver.
(a) Subject to Section 16.13(b)or as otherwise provided in this Agreement, this Agreement may not be amended or modified without the mutual written agreement of both parties. 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 this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will 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.
(b) Notwithstanding Section16.13(a) of this Agreement, from time to time, Provider may modify this Agreement in its sole discretion, and, unless otherwise specified, such changes shall become effective upon (i) renewal of Customer’s current Subscription Term, (ii) entry into a new Order Form or(iii) such other date or event as determined by Provider. Provider may notifyCustomer of such changes through communications via Customer’s account, email or other means, and Customer’s acceptance of click wrap terms or continued use of the Services after such modification of this Agreement shall constituteCustomer’s acceptance of such modified terms. If Provider specifies that changes to the Agreement will take effect prior to Customer’s next renewal or order(including, without limitation, for legal compliance or product change reasons)and Customer reasonably objects to such changes, Customer may terminate the applicable Subscription Term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the applicable Services for the terminated portion of the Subscription Term.
16.14 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision oft his Agreement 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 this Agreement 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.
16.15 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California.
16.16 Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
16.17 Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Section 9 or, in the case ofCustomer, Section 3.1 or Section 4.3, would causeProvider irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Provider will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that maybe available at law, in equity, or otherwise.
16.18 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
16.19 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.