Terms of service
Last updated: August 21, 2023
This Master Subscription Agreement (“Agreement”) is made and entered into between Double-Loop, Inc., a Delaware corporation (“Company”) and Client (defined below). This Agreement sets forth the terms pursuant to which Client will be permitted to use and receive access to the Service (defined below). Each of Company and Client is a “Party” and together, the “Parties.”
BY CHECKING THE BOX AND CLICKING THE “ACCEPT” BUTTON, OR PURCHASING A SUBSCRIPTION OR EXECUTING AN ORDER FORM OR OTHER DOCUMENT THAT REFERENCES THIS AGREEMENT, USING (OR MAKING ANY PAYMENT FOR) THE SERVICE OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU: (I) AGREE TO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (“CLIENT”); AND (II) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CLIENT AND ITS AFFILIATES (DEFINED BELOW) TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE ANY SERVICE.
“Affiliate” means any corporation, partnership, joint venture, or other entity: (i) as to which a Party owns or controls, directly or indirectly, stock or other interest representing more than 50% of the aggregate stock or other interest entitled to vote on general decisions reserved to the stockholders, partners, or other owners of such entity; (ii) if a partnership, as to which a Party or another Affiliate is a general partner; or (iii) that a Party otherwise is in common control with, controlled by, or controls in matters of management and operations.
“Authorized Users” means Client’s personnel accessing and using the Service on Client’s behalf.
“Client Data” means information, content, data, and materials imported or input by Client into the Service.
“Losses” means: (i) all damages, costs, and attorneys’ fees finally awarded against Indemnitee pursuant to the Indemnified Claim; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Indemnitee in connection with the defense of the Indemnified Claim (other than attorneys’ fees and costs incurred without Indemnitor’s consent after Indemnitee has accepted defense of the Indemnified Claim); and (iii) all amounts that Indemnitor agrees to pay to any third party to settle the Indemnified Claim.
“Order Form” means any ordering document that is a signed writing between the Parties and is made a part of this Agreement, and includes the applicable Service, Order Fees, term, and other applicable plan limits and/or limitations on the type and number of Authorized Users.
“Service Data” means information, content, data, and materials generated by Company or obtained directly by Company from third party sources, and used in connection with providing the Service. Service Data includes, without limitation, aggregate usage data collected or obtained in connection with the use of the Service hereunder.
“Service” means those modules and features of Company’s software-as-a-service platform as made available by Company from time to time through one or more web sites or network accessible properties or APIs owned or controlled by or on behalf of Company, including associated documentation made available to Client in written form or online.
“System” means Client’s information technology systems and equipment.
Accounts and Registration. To access and use the Service, Client must register for an account. When registering for an account, Client may be required to provide Company with certain information, such as an Authorized Users name, email address, or other contact information. Client is solely responsible for maintaining the confidentiality of its account and password. If Client believes that its account is no longer secure, then Client should immediately notify Company at email@example.com.
Subscription Options. Client may purchase access to the Service through either (i) an online Subscription; or (ii) execution of an Order Form; each described in Sections 2.2.1 and 2.2.2 below respectively.
Online Subscription. Client may purchase an online subscription to the Service with automatically recurring payments for periodic charges (“Subscription”).
Price. Company reserves the right to determine pricing for the Subscription “Subscription Fees.” Company will make reasonable efforts to keep pricing information published on the Service up to date. Company may change the Subscription Fees for the Service, including additional fees or charges. Client is encouraged to check Company’s pricing page periodically for current pricing information; for information on the Subscription Fees, please see our pricing page.
General Payment Terms. Before payment of any Subscription Fee, Client will have an opportunity to review and accept the fees that will be charged. All Subscription Fees are in U.S. Dollars and are non-refundable unless otherwise specifically provided for in these Terms or as required by applicable law.
Subscription Billing. The “Subscription Billing Date” is the date when Client purchases the first subscription to the Service. The Subscription will begin on the Subscription Billing Date and continue for the subscription period that the Client selects (e.g., monthly, three-month, six-month and twelve-month subscriptions) (such period, the “Initial Subscription Period”), and will automatically renew for successive periods of the same duration as the Initial Subscription Period (the Initial Subscription Period and each such renewal period, each a “Subscription Period”) unless Client cancels the Subscription Service or Company terminates it.
Payment Processing. By purchasing Subscription, Client authorizes Company or its third-party payment processors to periodically charge, on a going-forward basis and until cancellation of the Subscription, all accrued sums on or before the payment due date. Client’s account will be charged automatically on the Subscription Billing Date and thereafter on the renewal date of Client’s Subscription for all applicable fees and taxes for the next Subscription Period. Company or its third-party payment processor will bill the Subscription Fee to the payment method associated with Client’s account.
Cancellation. Client must cancel Subscription before it renews in order to avoid billing of the next periodic Subscription Fee to Client’s account. Client may cancel its Subscription by clicking “cancel” on the billing page or contacting Company at firstname.lastname@example.org. CLIENT’S CANCELLATION MUST BE RECEIVED BY COMPANY BEFORE THE RENEWAL DATE IN ORDER TO AVOID CHARGE FOR THE NEXT SUBSCRIPTION PERIOD.
Order Form. The Parties may enter into Order Forms for Service, which, upon execution, will become a part of and subject to the terms and conditions of this Agreement. The Service to be provided, applicable fees, and the initial term during which Client is authorized to use such Service (the “Initial Term”) will be set forth in an Order Form. Unless otherwise provided in the applicable Order Form, upon expiration of the Initial Term, the Order Form will automatically renew for subsequent terms of the same length as the Initial Term, unless a Party provides written notice of nonrenewal at least thirty (30) days prior to the end of the then current Subscription Period (collectively, the “Subscription Term”).
Order Fees. Client will pay Company all applicable fees and any other amounts owing under this Agreement as specified in the applicable Order Form (collectively, the “Order Fees”), including, where applicable, any early termination fees specified on the Order Form. All Order Fees are quoted in, and all payments must be made in, U.S. dollars.
Payment Terms Unless otherwise specified in an Order Form, Client will pay all amounts due within 30 days of the date of the applicable Order Form. Company will charge Client’s payment instrument for the Order Fees in advance in accordance with any billing frequency stated in the applicable Order Form. Amounts due from Client under this Agreement may not be withheld or offset by Client against amounts due to Client for any reason.
Late Payment Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Client will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Company to collect any amount that is not paid when due.
Billing. Client will provide Company with valid and updated payment instrument information (such as credit card), and Client authorizes Company to charge such payment instrument for all Service ordered in the applicable Order Form during the Term (defined below).
Authorization. Client authorizes Company to charge all sums for Subscription Fees and/or Order Fees (collectively “Fees”) including all applicable taxes, to the payment method specified in Client’s account. If Client pays any Fees with a credit card, then Company may seek pre-authorization of Client’s credit card account prior to purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Client’s purchase.
Delinquent Accounts. Company may suspend or terminate Client’s access to the Service for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account may be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
Right to Access and Use. Subject to Client’s full and ongoing compliance with the terms and conditions of this Agreement, including without limitation the payment of all applicable Fees, Company grants Client a non-exclusive, non-transferable, non-sublicensable right, during the Term (defined below), to allow its Authorized Users to access and use the Service for Client’s internal business purposes.
API License. If under the terms of Client’s Subscription or if an Order Form indicates that Client will receive access to an application programming interface, or if Company provides credentials to Client that enable Client to access a Company-provided application programming interface in connection with the Service (each, an “API”), subject to Client’s full and ongoing compliance with the terms and conditions of this Agreement, including without limitation the payment of all applicable Fees, then Company hereby grants Client a non-exclusive, non-transferable and non-sublicensable right and license under Company’s rights in that API to access and use such API solely for the term set forth in such Order Form and in accordance with all applicable Documentation (defined below) and the restrictions set forth in this Agreement. Without limiting the foregoing, Client will comply with any volume or other usage-based restrictions provided by Company as set by the Subscription or as forth in an applicable Order Form.
Documentation. To the extent that the Service is accompanied by any Company-provided user manuals, help files, specification sheets, or other documentation, in whatever form, relating to the Service (“Documentation”), subject to Client’s full and ongoing compliance with the terms and conditions of this Agreement, including without limitation the payment of all applicable Fees, Company hereby grants to Client a non-exclusive, non-transferable, non-sublicensable right and license under Company’s rights in the Documentation to use such Documentation solely to enable Client to exercise its rights under the applicable license to or grant of access and usage rights of the Service.
Service Support. During the Term of this Agreement, Company shall provide support to Client for the Service in accordance with its then-current standard support policies. If Client is unable to access or use the Service hereunder as a result of an error occurring on Client’s System, or if access to such System is necessary to otherwise rectify an error occurring on the Service, Client agrees to provide Company with as much access to its System as may be necessary to duplicate and resolve such errors.
Client Responsibilities. Client is responsible for all activities that occur under Client’s user accounts. Client will: (i) obtain and maintain all equipment and any ancillary services needed to connect to, access or otherwise use the Service and ensuring that its equipment meets the minimum system guidelines set forth in the applicable documentation; (ii) provide Company sufficient access to its Systems as may be necessary to provide the Service; and (iii) have sole responsibility for the accuracy, quality, integrity, reliability, and appropriateness of all Client Data provided to Company hereunder, and for ensuring that all necessary rights, notices, and permissions have been obtained for the provision of such Client Data to Company for the uses provided herein.
RIGHTS AND RESTRICTIONS
Reservation of Rights. Client acknowledges that in providing the Service, Company utilizes (i) Company name, Company logo, Company’s websites and related domain names, the product names associated with the Service and other trademarks; (ii) certain audio and visual information, documents, software and other works of authorship; (iii) analytical, predictive, and optimization models, frameworks, rules, algorithms, and similar systems, data mining and other algorithms, and any other technology, software, hardware, products, processes, algorithms, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively "Technology"). As between Client and Company, Company reserves all rights, title and interest, including all intellectual property rights in and to, the Technology and the Service and any associated Service Data, together with any and all modifications, customizations or improvements to any of the foregoing, including without limitation, any AI or machine learning models, algorithms, neural nets, and similar technologies that may be enhanced, expanded, developed, or otherwise improved through the provision of the Services and through the processing and use of Client Data (“Derivatives”). Other than as expressly set forth in this Agreement, no license or other rights in the Technology or Derivatives are granted to Client.
Client Data. Company acknowledges that, as between Company and Client, Client is the sole and exclusive owner of the Client Data. In order to enable Company to provide the Service, Client hereby grants to Company and its successors, a worldwide, non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, irrevocable right and license to use, process, transmit, store, and disclose any Client Data imported, obtained through Client’s system APIs or integrated with the Service in connection with the provision of the Service to Client, and to use the know-how and analytical results resulting therefrom (including any and all machine learning, trained models, and other similar materials) in connection with the enhancement, improvement, and provision of the Service and derivatives thereof (including Company’s Technology and Derivatives), provided that the foregoing is not a license to provide or disclose any Client Data to any third party in raw or disaggregated form, or to identify Client as the source of any such Client Data or analytical results.
Third-Party Service. To the extent that the Service includes or is accompanied by third-party software or other products (e.g., cloud hosting instances or data analysis tools) that Company provides to Client or that is otherwise identified in the Documentation as being required to use properly such Service (“Third-Party Service”), the Third-Party Service and their use by Client are subject to all license and other terms that accompany such Third-Party Service. Client will abide by and comply with all such terms. Without limiting the foregoing, if Company enables Client to access a hosted environment offered by a third-party cloud or platform service provider, then Client must agree to the applicable service provider’s terms and conditions prior to accessing such hosted environment, and Client will comply at all times with such terms and conditions.
Service Guidelines. Client will use the Service solely as contemplated by this Agreement and will not: (i) submit or transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs to or through the Service or transmit unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar or obscene material or material harmful to minors, or collect data regarding others without their consent; (ii) interfere with or disrupt the integrity or performance of the Service or the content, data, or information contained therein; (iii) attempt to gain or permit unauthorized access or access to a third party (including customers or vendors) to the Service, computer systems or networks related to the Service; (iv) disassemble, reverse engineer, or decompile any of the Technology (defined below), or attempt to do so; (v) "frame", "mirror", or otherwise embed or incorporate any of the Service or any content, data, or information contained therein (other than Client Data) in any Client or third party system or service; or (vi) access the Service to build a competitive product or service, reproduce features of the Service, or resell the Service.
Usage. Client will use the Service and Documentation in compliance with all applicable laws and regulations. Client will prevent any unauthorized use of the Service and Documentation and will immediately notify Company in writing of any unauthorized use of which Client becomes aware. Client will immediately terminate any unauthorized use by persons having access to the Service or Documentation through Client.
Feedback. If Client provides any feedback to Company concerning the functionality and performance of the Service or Documentation (including identifying potential errors and improvements), Client hereby assigns to Company all right, title, and interest in and to the feedback, and Company is free to use the feedback without payment or restriction.
TAXES AND AUDIT
Taxes. All payments required by this Agreement exclude all sales, value-added, use, or other taxes and obligations, all of which Client will be responsible for and will pay in full, except for taxes based on Company’s net income. If Company has the legal obligation to pay or collect taxes for which Client is responsible pursuant to this Section 5.1, the appropriate amount will be invoiced to and paid by Client, unless Client provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
Audit Rights. During the Term and for one year thereafter, Company will be entitled to audit Client upon three days’ written notice in order to confirm access and use of the Services is within the limits set forth in an Order Form (including number of Authorized Users) to determine accuracy of all payments owed pursuant to this Agreement. No more than one audit may be conducted per quarter. Client will cooperate with Company in the performance of any such audit, and will provide to Company or a third party designated by Company such access to Client’s relevant records, data, information, personnel, computer systems and / or facilities as Company may reasonably request for such limited purposes. Company will bear the costs of any such audit unless such audit determines that Client has violated the terms and conditions of this Agreement, in which case (i) Client will reimburse Company for all expenses incurred in connection with the audit, (ii) Client will pay Company all fees that are applicable to Client’s unauthorized use (e.g., additional seat licenses to cover use in excess of Client’s previously purchased seat licenses), and (iii) Company may immediately terminate this Agreement for cause, in addition to any and all remedies available to Company in law or equity.
Definitions. As used herein, “Confidential Information” means all confidential information disclosed by or otherwise obtained from a Party (“Disclosing Party”) to or by the other Party (“Receiving Party”), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. “Confidential Information” of a Disclosing Party includes such Disclosing Party’s business and marketing plans, technology and technical information, product plans and designs, and business processes. Without limiting the foregoing, Company’s “Confidential Information” includes each Service, all Documentation, all Company technical information, and all information concerning Service-related database structure information and schema. The Confidential Information of Client shall include, without limitation, the Client Data. However, “Confidential Information” does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (b) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Notwithstanding the foregoing, Company is permitted to disclose Confidential Information of Client on a need-to-know basis to employees, contractors, and agents of its Affiliates. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
TERM AND TERMINATION
Term. This Agreement will remain in force while there is an active Subscription or Order Form unless terminated in accordance with this Agreement (the “Term”).
Termination. Either Party will have the right to terminate this Agreement, Subscription or the applicable Order Form, upon written notice, if the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same. The foregoing cure period will not apply in the case of failure to pay fees. Either Party may terminate this Agreement if: (i) the other Party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (ii) the other Party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing. Company may, in addition to any rights it may have at law or at equity, suspend Company’s access to the Service in the event that Company determines that Client’s use of the Service violates this Agreement or any applicable law or regulation, or would otherwise reasonably be expected to result in any harm or liability to Company or any third party. Without limiting any other provision of this Section 7.2, if Client fails to timely pay any fees, Company may, without limitation to any of its other rights or remedies, suspend access to the until it receives all amounts due.
Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (a) Company may immediately cease providing the Service hereunder; (b) any and all unpaid payment obligations of Client under this Agreement will become due immediately; (c) within thirty (30) days after such expiration or termination, each Party will return the tangible embodiments of the other Party’s Confidential Information in its possession and will not retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement.
Survival. Notwithstanding anything to the contrary herein, all definitions and Sections 1, 126.96.36.199, 2.4, 4.1, 4.2, 4.6, 5, 6, 7.3, 7.4, 8.3, 10, and 11 will survive termination or expiration of this Agreement.
WARRANTIES AND DISCLAIMER
By Company. Company represents and warrants to Client that (i) it will provide the Service in a professional manner consistent with applicable industry standards; (ii) it has all necessary right, power, and authority to enter into this Agreement and provide the Service to Client in accordance with the terms of this Agreement without any conflict or breach of any contract or obligation to any third party; and (iii) to Company’s knowledge, Client’s use of the Service as provided and in accordance with this Agreement does not and will not infringe the intellectual property rights of any third party, provided that Client’s sole and exclusive remedy for any breach of the foregoing representation is indemnification pursuant to Section 9.1 and Section 9.2.
By Client. Client represents and warrants to Company that: (i) Client has the necessary right, power, and authority to enter into this Agreement without any conflict or breach of any contract or obligation to any third party, and to use and to permit the use of, the Systems, Client Data, and other materials and information used, stored or processed in the course of using or permitting the use thereof in connection with the Service, (ii) Client will not transfer any personal data, personal information or personally identifiable information to Company without the consent of the individual(s) to whom such information relates and (iii) Client is in compliance with, and will not violate any applicable law, including without limitation privacy and data protection laws and regulations, or Client’s internal privacy policies, in connection with the collection, use or processing of personal data, personal information or personally identifiable information, the Systems, Client Data, and any other materials used in connection with the Service. In the event of a breach or reasonably anticipated breach of the foregoing warranties, in addition to any other remedies available at law or in equity, Company will have the right to immediately, in Company’s sole discretion, suspend any related Service if deemed reasonably necessary by Company to prevent any liability accruing to it.
Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 8 OR AN INVOICE, COMPANY MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICE. COMPANY DOES NOT WARRANT THAT THE SERVICE IS ERROR-FREE OR THAT OPERATION OF THE SERVICE WILL BE SECURE OR UNINTERRUPTED. COMPANY DOES NOT WARRANT THAT ANY INFORMATION PROVIDED BY THE SERVICE OR DOCUMENTATION, IS ACCURATE OR COMPLETE OR THAT ANY SUCH INFORMATION WILL ALWAYS BE AVAILABLE. COMPANY EXERCISES NO CONTROL OVER, AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF, CLIENT’S USE OF THE SERVICES OR DOCUMENTATION.
By Company. Company will: (i) at its expense, either defend Client from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Client alleging that Client’s use of the Service as permitted pursuant to this Agreement infringes or misappropriates any patent, copyright, or trademark, subject to Section 9.4, and (ii) indemnify Client from and pay the applicable Losses. Company will have no obligation under this Section 9 for any infringement or misappropriation to the extent that it arises out of or is based upon any of the following: (1) use of the Service in combination with other products or services not provided by Company if such infringement or misappropriation would not have arisen but for such combination; (2) the Service having been provided to comply with designs, requirements, or specifications required by or provided by Client, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (3) use of the Service by Client for purposes not intended or outside the scope of the license granted to Client; (4) Client’s failure to use the Service in accordance with instructions provided by Company, if the infringement or misappropriation would not have occurred but for such failure; or (5) any modification of the Service not made or authorized in writing by Company where such infringement or misappropriation would not have occurred absent such modification.
Mitigation; Limited Remedy. If Company becomes aware of, or anticipates, a Claim subject to Section 9.1, Company may, at its option: (i) modify the Service so that it becomes non-infringing or substitute a functionally equivalent product; (ii) obtain a license to the third-party intellectual property rights giving rise to the Claim; or (iii) cancel the affected Subscription and/or terminate the affected Order Form(s) on written notice and refund to Client of any prepaid Fees. Sections 9.1 and 9.2 state Company’s sole and exclusive liability, and Client’s sole and exclusive remedy, for the actual or alleged infringement, misappropriation, or other violation of any third-party intellectual property right by the Service.
By Client. Client will, at its own expense, indemnify and hold harmless Company against all Losses, costs and expenses arising out of a claim against Company to the extent caused by Client Data, or alleging any fact which, if true, would constitute a breach of any warranties set forth in Section 8.2; subject to Section 9.4. Client will have no obligation to Company under this Section 9.3 to the extent such claims arise from Company’s breach of this Agreement.
Procedures. A Party’s obligations as the indemnifying Party (“Indemnitor”) with respect to a Claim for which the indemnified Party (“Indemnitee”) is indemnified under this Section 9 (an “Indemnified Claim”) are subject to Indemnitee doing the following: (i) providing Indemnitor prompt written notice of the Indemnified Claim; (ii) granting Indemnitor full and complete control over the defense and settlement of the Indemnified Claim; (iii) providing assistance in connection with the defense and settlement of the Indemnified Claim as Indemnitor may reasonably request; and (iv) complying with any settlement or court order made in connection with the Indemnified Claim. Indemnitee will not defend or settle the Indemnified Claim without Indemnitor’s prior written consent. Indemnitee will have the right to participate in the defense of the Indemnified Claim at its own expense and with counsel of its own choosing, but Indemnitor will have sole control over the defense and settlement of the Indemnified Claim.
LIMITATIONS OF LIABILITY
Exclusion. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, COMPANY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CLIENT FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF COMPANY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE FOR ANY LOSS OF DATA (INCLUDING CLIENT DATA) STORED IN, OR IN CONNECTION WITH, THE SERVICE.
Maximum Liability. UNDER NO CIRCUMSTANCES WILL COMPANY’S TOTAL LIABILITY OF ALL KINDS, IN AGGREGATE, ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO COMPANY UNDER THE INVOICE WITH RESPECT TO WHICH THE LIABILITY AROSE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY COMPANY TO CLIENT AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
Relationship of the Parties. Company will be and act as an independent contractor (and not as the agent or representative of Client) in the performance of this Agreement. Company may utilize subcontractors or other third parties to perform its duties under this Agreement so long as Company remains responsible for all of its obligations under this Agreement.
Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if: (i) in writing sent from Client to Company by email to email@example.com; (ii) in writing sent from Company to Client by email to the email address provided in the Client’s account. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section 11.2. Notices are deemed given 1 business day following the date either Party sends email notice to the other Party.
Use of Name. Company may use the name, brand, or logo of Client (or Client’s parent company) solely for the purpose of identifying Client as a licensee or customer of Company in a ‘customer’ section of Company’s website, brochures, or other promotional materials, or as part of a list of Company’s customers in a press release or other public relations materials. Any such limited use by Company shall include proper attribution to Client or its parent company of any trademark or logo of Client or its parent company, and shall in no way suggest that Company is affiliated with, or speaking on behalf of, Client or Client’s parent company. Any other press releases or marketing materials referring to the trademarks or logos of Client shall require mutual approval in writing prior to public dissemination thereof. Client may opt out of Company use of its name, brand, or logo by expressly opting out in an Order Form or by notice to Company in accordance with Section 11.2.
Assignability. Neither Party may assign its right, duties, or obligations under this Agreement without the other Party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that Company may assign this Agreement to an Affiliate or a successor (including a successor by way of Change of Control or operation of law), or in connection with the sale of all of the assets or business to which this Agreement relates. A Change of Control will be deemed to cause an assignment of this Agreement. “Change of Control” means a merger, acquisition, divestiture, sale of assets or equity, or similar transaction.
Export. Client will comply with all applicable export and import laws, rules, and regulations in connection with Client’s activities under this Agreement. Client acknowledges that it is Client’s responsibility to obtain any required licenses to export and re-export Service. The Service, including technical data, are subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Client represents and warrants that the Service are not being and will not be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals and persons on the Table of Denial Orders, the Entity List or the List of Specifically Designated Nationals, unless specifically authorized by the U.S. Government for those purposes.
U.S. Government Restricted Rights. If the Service is commercial computer software, as that term is defined in 48 C.F.R. §2.101. Accordingly, if Client is the U.S. Government or any contractor therefor, Client will receive only those rights with respect to the Service and Documentation as are granted to all other end users under license, in accordance with (i) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (ii) 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors.
Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement (except for failure to make payments when due) on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that Party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
Arbitration. Any dispute, claim, or controversy between the Parties arising out of or relating to this Agreement, whether in contract, tort, or otherwise, and the Parties’ rights, remedies (collectively, “Disputes”) will be conclusively determined by a final and binding confidential arbitration proceeding to take place in the City and County of San Francisco, California. Such proceeding will be conducted in English and administered by JAMS pursuant to the JAMS Comprehensive Arbitration Rules and Procedures then in effect before a single arbitrator chosen in accordance with such rules. The ruling by the arbitrator may be entered in any court having jurisdiction over the Parties or any of their assets. The Parties will evenly split the cost of the arbitrator’s fees, but each Party will bear their own attorneys’ fees and other costs associated with the arbitration. Both Parties agree that this arbitration provision may be enforced by injunction or other equitable order, and no bond or security of any kind will be required with respect to any such injunction or order. In addition, and notwithstanding the foregoing, each Party will be entitled to seek immediate injunctive relief from a court of competent jurisdiction. Disputes must be brought to arbitration within the applicable period under law or they are waived.
Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Subject to the arbitration provision in Section 11.8, each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in San Francisco, California in connection with any action arising out of or in connection with this Agreement.
Waiver. The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Service under this Agreement is found to be illegal, unenforceable, or invalid, Client’s right to use Service will immediately terminate.
Interpretation. For purposes of this Agreement, (i) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation;”; (ii) the words “such as”, “for example” “e.g.” and any derivatives of those words will mean by way of example and the items that follow these words will not be deemed an exhaustive list; (iii) the word “or” is used in the inclusive sense of “and/or” and the terms “or,” “any,” and “either” are not exclusive; (iv) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (v) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (vi) whenever the context may require, any pronouns used in this Agreement will include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns will include the plural, and vice versa. The headings set forth in this Agreement are for convenience of reference purposes only and will not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof. Any law defined or referred to herein means such law as from time to time amended, modified or supplemented, including (in the case of statutes) by succession of comparable successor laws.
Entire Agreement. This Agreement, including all attachments, is the final and complete expression of the agreement between these Parties regarding the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the Parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the Parties relating to other products or services of Company that are not described in an Order Form and with respect to which Client has executed a separate agreement with Company that remains in effect. No employee, agent, or other representative of Company has any authority to bind Company with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. In the event of any conflict or inconsistency between the terms of this Agreement and the terms of an Order Form, the terms of the Order Form will prevail. This Agreement may be changed only by a written agreement signed by an authorized agent of the Party against whom enforcement is sought. Company will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Client in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Company specifically provides a written acceptance of such provision signed by an authorized agent of Company.