TERMS OF SERVICE
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING "I AGREE TO THESE TERMS," CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.
These Terms of Service constitute an agreement (this "Agreement") by and between Aurelius Lab, LLC, a Delaware limited liability company ("Provider"), and the corporation, limited liability company, partnership, sole proprietorship, or other business entity executing this Agreement ("Customer"). This Agreement is effective as of the date Customer clicks "I Agree to These Terms" (the "Effective Date"). Customer’s use of and Provider’s provision of the Services (as defined below) are governed by this Agreement, as are Customer’s authorizations to grant its own customers use of the Services.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON AGREEING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.
Unless otherwise defined in this Agreement, capitalized terms used in this Agreement shall have the respective meanings set forth below:
- "Available" means the Services are available for access and use by Customer over the Internet and operating in material accordance with the Documentation.
- "Customer Data" means (other than Resultant Data or any information, data or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, which will not constitute Customer Data) any information, data and other content, in any form or medium, that is collected or otherwise received, directly or indirectly from Customer, End-Clients or any other User by or through the Services.
- "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 the Service Software.
- "End-Clients" means any of Customer’s clients or customers or other third parties Customer gives access to the Provider System, including without limitation such companies’ agents and employees.
- "Exceptions" means, for purposes of calculating the Availability Requirement, any (i) act or omission by Customer or any End-Client or other authorized User; (ii) Customer Failure; (iii) Customer’s or any End-Client’s or other authorized User’s Internet connectivity; (iv) Force Majeure Event; (v) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Provider; (vi) Scheduled Downtime; or (vii) disabling, suspension or termination of the Services pursuant to Section 2.6.
- "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 computer, software, firmware, hardware, system or network or 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 other User from accessing or using the Services, the Service Software or the Provider System as intended by this Agreement.
- "Order" means an order for access to the Provider System between the Provider and Customer.
- "Provider System" means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Provider or through the use of third-party services.
- "Service Software" means the Provider software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Provider provides remote access to as part of the Services.
- "Services" means software as a service that allows creation of and reporting for projects and input of related information regarding projects, project goals, research, customer insights data, project decisions, related project documentation and digital product measurement data, and suggestions for specific project related success indicators, measurement methods and metrics and product research methods and approaches, including hosting, managing, operating and maintaining the Service Software for remote electronic access and use by Customer, End-Clients and other Users.
- "User" means any company or individual who uses the Services or accesses the Provider System on Customer’s behalf or through Customer’s account or passwords, whether authorized or not, including, without limitation, End-Clients.
- "User TOS" means such terms of service as Provider may require for users of the Provider System.
- "Resultant Data" means information, data and other content that is derived by or through the Services from Processing or aggregating Licensee Data and is sufficiently different from such Licensee Data that such Licensee Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.
- Service Levels.
(a) Service Levels. Subject to the terms and conditions of this Agreement, Provider will use reasonable efforts to make the Services Available at least 99% of the time as measured over the course of each year during the Term, excluding unavailability as a result of any Exceptions (the "Availability Requirement").
(b) Scheduled Downtime. Provider will use reasonable efforts to schedule downtime for routine maintenance of the Services between the hours of 9:00 p.m. and 3:00 a.m. Minneapolis time and give Customer at least one hours’ prior notice of all scheduled outages of the Services ("Scheduled Downtime").
(c) Remedies. Provider will use commercially reasonable efforts to respond to and address a Service issue within 24 hours of written notice of such Service issue to firstname.lastname@example.org.
- Customer shall pay Provider the fees set forth in each Order (the "Subscription Fee"). Provider will not be required to refund the Subscription Fee under any circumstances.
- CUSTOMER DATA AND SECURITY.
- Customer Data. As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all intellectual property rights relating thereto; provided, that Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data (a) to Provider and its subcontractors and personnel as are necessary to perform the Services and (b) to Provider as are necessary or useful to enforce this Agreement and exercise its rights and perform its hereunder. Notwithstanding the foregoing, Provider may disclose Customer Data as required by applicable law or by proper legal or governmental authority. As permitted by applicable law, Provider shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s sole cost and expense.
- Prohibited Data. Customer acknowledges and agrees that the Services are not designed with security and access management for processing the following categories of data, information or other content (each, "Prohibited Data"): (a) information that, individually or in combination, does or can identify a specific individual or device or by or from which a specific individual or device may be identified, including, without limitation, data regulated by the Health Insurance Portability and Accountability Act or related rules or regulations; (b) data that is classified and or used on the U.S. Munitions list, including software and technical data; (c) articles, services and related technical data designated as defense articles or defense services; and (d) ITAR (International Traffic in Arms Regulations) related data. Customer shall not, and shall not permit any End-Client, User or other person to, provide any Prohibited Data to, or process any Prohibited Data through, the Services, the Provider System or any Provider personnel. Customer is solely responsible for reviewing all Customer Data provided to or processed through the Services, the Provider System or any Provider personnel and shall ensure that no such Customer Data constitutes or contains any Prohibited Data. CUSTOMER ACKNOWLEDGES AND AGREES THAT PROVIDER HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE LAWS REGULATING SUCH PROHIBIT DATA OR OTHERWISE TO PROTECT PROHIBITED DATA AND THE PROVIDER SYSTEM MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR PROHIBITED DATA.
- Customer Control. Customer has and will retain sole responsibility for (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any other authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services ("Customer Systems"); (d) the security and use of Customer’s and its authorized Users’ access credentials; and (e) all access to and use of the Services and Documentation directly or indirectly by or through the Customer Systems or its or its authorized Users’ access credentials.
- Access and Security. Customer shall employ all reasonable (and, at minimum, legally required) physical, administrative and technical controls, screening and security procedures and other safeguards 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.
- Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Provider System, Customer assumes such risks. Provider offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
- Data Accuracy. Provider shall have no responsibility or liability for the accuracy of data uploaded to the Provider System by Customer, including without limitation Customer Data and any other data uploaded by End-Clients or other Users.
- Data Deletion. Provider may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more. 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.
- CUSTOMER RESPONSIBILITIES AND RESTRICTIONS.
- Acceptable Use. Customer shall not, and shall not permit any End-Client or other person to, access or use the Services, the Service Software or Documentation, except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not (and shall not permit any End-Client or other person to):
(a) copy, modify or create derivative works or improvements of the Services, the Service Software or Documentation;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services, the Service Software or Documentation 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, the Service Software or Documentation, in whole or in part;
(d) bypass or breach any security device or protection used by the Services, the Service Software, Provider System or Documentation or access or use the Services, the Service Software, Provider System or Documentation other than by an authorized User through the use of his or her own then valid access credentials;
(e) input, upload, transmit or otherwise provide to or through the Services, the Service Software or the Provider System, 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, the Service Software, the Provider System, Documentation or Provider’s provision of services to any third party;
(g) remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services, the Service Software or Documentation;
(h) access or use the Services, the Service Software, the Provider System or Documentation 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, including, without limitation, laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data;
(i) access or use the Services, the Service Software or Documentation for purposes of competitive analysis of the Services, the Service Software or Documentation, the development, provision or use of a competing software service or product or any other purpose that is to the Provider’s detriment or commercial disadvantage; or
(j) otherwise access or use the Services or Documentation beyond the scope of the authorization granted under Section 2.1.
- Unauthorized Access. Customer shall take all reasonable steps to prevent unauthorized access to the Provider System. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a "Customer Failure"). If Customer becomes aware of any actual or threatened activity prohibited by Section 5.1, then Customer shall immediately (a) take all reasonable and lawful measures within its control that are necessary to stop the activity or threatened activity and to mitigate its effects and (b) notify Provider of any such actual or threatened activity.
- End-Clients and Other Users; System Access. Customer is responsible and liable for: (a) use of the Provider System by End-Clients or other Users, including, without limitation, unauthorized User conduct and any User conduct that would violate the requirements of this Agreement applicable to Customer and (b) any use of the Provider System through Customer’s account, whether authorized or unauthorized.
- Acceptable Use. Customer shall not, and shall not permit any End-Client or other person to, access or use the Services, the Service Software or Documentation, except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not (and shall not permit any End-Client or other person to):
- INTELLECTUAL PROPERTY.
- 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, the Service Software, Documentation or third party materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Service Software, the Documentation and the third party materials are and will remain with Provider and the respective rights holders in the third party materials.
- Resultant Data. 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. Notwithstanding anything to the contrary in this Agreement, Provider may use, reproduce, sell, publicize, or otherwise exploit Resultant Data in any way, in its sole discretion.
- Feedback. Provider has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Customer, End-Clients, or other Users provide to Provider, and nothing in this Agreement or in the parties’ dealings arising out of or relating to this Agreement will restrict Provider’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the End-Client or other User in question. "Feedback" means any suggestion or idea for improving or otherwise modifying any of Provider’s products or services.
- CONFIDENTIAL INFORMATION.
- Confidential Information. "Confidential Information" means information in any form or medium that the Disclosing Party (as defined below) considers confidential or proprietary, including, without limitation, information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, pricing and information with respect to which the Disclosing Party has contractual or other confidentiality obligations; provided, that Confidential Information does not include information that: (a) was rightfully known to the Receiving Party (as defined below) without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (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; (d) the Receiving Party can demonstrate by written or other documentary record was or is independently developed by the Receiving Party without reference to or use of any Confidential Information; or (e) was or is Resultant Data.
- Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, each party (as the "Receiving Party") shall:
(a) not access or use Confidential Information other party (as the "Disclosing Party") 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 7.3, not disclose or permit access to Confidential Information other than to its representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 7; 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 7;
(c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information; and
(d) ensure its representatives’ compliance with, and be responsible and liable for any of its representatives’ non-compliance with, the terms of this Section 7.
- Compelled Disclosures. If the Receiving Party 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 Disclosing Party can seek a protective order or other remedy or waive its rights under Section 7.2 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 7.3, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose.
- REPRESENTATIONS & WARRANTIES.
- Mutual. 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; and (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.
- Provider. Provider represents and warrants that it is the owner of the Provider System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement. Provider’s representations and warranties in the preceding sentence do not apply to use of the Provider System in combination with hardware or software not provided by Provider. In the event of a breach of the warranty in this Section 8.2, Provider will promptly (a) secure for Customer the right to continue using the Provider System; (b) replace or modify the Provider System to make it non-infringing; or (c) terminate the infringing features of the Service. In conjunction with Customer’s right to terminate for breach in accordance with this Agreement, the preceding sentence states Provider’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 8.2 and for potential or actual intellectual property infringement by the Provider System.
(a) Customer represents, warrants and covenants to Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any intellectual property rights or any privacy or other rights of any third party or violate any applicable law.
(b) Customer represents, warrants and covenants that (i) to its knowledge, each End-Client will have the full right and authority to enter into, execute, and perform its obligations as required under this Agreement and the User TOS, with no pending or threatened claim or litigation that would have a material adverse impact on its ability so to perform; (ii) Customer will accurately identify each End-Client and will not provide any inaccurate information about an End-Client or other User to or through the Provider System.
- Warranty Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE PREAMBLE AND SECTIONS 8.1 and 8.2, ALL SERVICES AND DOCUMENTATION ARE PROVIDED "AS IS" AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND 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 "AS IS" 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.
- Indemnification. Customer will indemnify Provider and its 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 in connection with any action by a third party (other than an affiliate of a Provider Indemnitee) to the extent that such losses arise out of or relate to any (a) Customer Data, including any receipt or processing of Customer Data by 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 any other authorized User, including, without limitation, Provider’s compliance with any directions provided by Customer or any End-Client or other authorized User; (c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or (d) gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer or any End-Client or other authorized User, or any third party on behalf of Customer or any End-Client or other authorized User, in connection with this Agreement.
- Indemnification Procedure. A Provider Indemnitee will promptly notify Customer in writing of any action for which such Provider Indemnitee believes it is entitled. Such Provider Indemnitee will cooperate with Customer at Customer’s sole cost and expense. Customer will control of the defense and investigation of such action and shall employ counsel reasonably acceptable to the such Provider Indemnitee to handle and defend the same, at Customer’s sole cost and expense; provided, that Customer may only enter into a settlement without the consent of such Provider Indemnitee so long as such settlement does not require any payment or admission of wrongdoing by any Provider Indemnitee. Such Provider Indemnitee’s failure to perform any obligations under this Section 9.2 will not relieve Customer of its indemnification obligations, except to the extent that Customer demonstrates that it has been materially prejudiced as a result of such failure. Such Provider Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
- LIMITATIONS ON LIABILITY.
- 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, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Cap on Monetary Liability. IN NO EVENT WILL THE AGGREGATE LIABILITY OF PROVIDER 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, EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER UNDER THIS AGREEMENT. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- TERM AND TERMINATION.
- Term. The term of this Agreement (the "Term") shall commence on the Effective Date and continue for a period of one year. Thereafter, the Term will renew for successive one-year periods, unless either party notifies the other of non-renewal in writing at least 30 prior to the expiration of such then-current period.
- Termination. In addition to any other express termination right set forth elsewhere in this Agreement, either party may terminate this Agreement (a) without notice if the other party breaches this Agreement and such breach (i) is incapable of cure or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach or (b) 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.
- Effects of Termination. Upon termination of this Agreement:
(a) all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate;
(b) Provider shall immediately cease all use of any Customer Data or Customer’s Confidential Information and, upon written request, erase all Customer Data and Customer’s Confidential Information from all systems that Provider directly controls; provided, that Provider may retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course (it being acknowledged and agreed that all such information and materials will remain subject to all confidentiality, security and other applicable requirements of this Agreement);
(c) Customer shall immediately cease all use of any Services or Documentation and (i) promptly return to Provider, or at Provider’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Provider’s Confidential Information and (ii) permanently erase all Documentation in its possession or control and Provider’s Confidential Information from all systems Customer directly or indirectly controls; and
(d) Provider may disable all Customer, End-Client and other User access to the Provider System, Services and Documentation.
- Surviving Terms. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Sections 5 (Customer Responsibilities and Restrictions), 6 (Intellectual Property), 7 (Confidential Information), 8.4 (Warranty Disclaimers), 9 (Indemnification), 10 (Limitations on Liability), 11.3 (Effect of Termination), 11.4 (Surviving Terms) and 12 (Miscellaneous); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
- Independent Contractors and Subcontractors. 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.
- Notices. Provider may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to email@example.com, and such notices will be deemed received 72 hours after they are sent.
- Force Majeure. 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, 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 this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of 30 days or more. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
- Assignment & Successors. 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 (or sale of equity resulting in a change of control of Customer) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Provider’s prior written consent is required. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 12.4 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- Severability. If any 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 of this 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.
- No Waiver. 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 shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or of any other right, remedy, power or privilege.
- Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Minnesota 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 Minnesota. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Minnesota in each case located in the city of Minneapolis and County of Hennepin, and each party unconditionally and irrevocably submits to the exclusive jurisdiction of, and waives all objections to the laying of venue (including any objection of forum non conveniens) in, such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
- 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.
- Construction. This Agreement will not be construed in favor of or against either party by reason of authorship.
- Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications. If there is any conflict between the terms or conditions of this Agreement and any User TOS, then this Agreement shall control.
- Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.