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THIS MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR PURCHASE AND ONGOING USE OF THE SERVICES.
BY STARTING USING OUR SERVICES (OR BY CLICKING TO ACCEPT, EXECUTING AN ORDER FORM THAT REFERENCE, OR OTHERWISE AGREEING TO THIS MASTER SUBSCRIPTION AGREEMENT WHEN SUCH OPTION IS MADE AVAILABLE TO YOU), YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT EFFECTIVE AS OF THE DATE OF SUCH ACTION. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on 30th September, 2024.
“Access Credentials” means any user name, 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.
“Authorized Users” means all users, including but not limited to employees, contractors and agents of Customer and Customer’s customers, authorized by Customer to access the Services.
“Confidential Information” means any information disclosed by one Party to the other or accessed by the other under this Agreement, which, (i) if in written, graphic, machine readable or other tangible form is marked “Confidential” or “Proprietary” or which, if disclosed orally or by demonstration, is identified at the time of disclosure as confidential and reduced to a writing marked “Confidential” and delivered to the Receiving party (as defined below) within thirty (30) days of such disclosure; or (ii) by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential. Notwithstanding any failure to so identify them, all technology or proprietary information underlying the Services will be deemed Confidential Information of Provider, and the Customer Data, the identity of the Customer clients, and the existence of this Agreement will be deemed Confidential Information of Customer.
“Customer Data” means 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. For the avoidance of doubt, Customer Data includes information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
“Effective Date” means the start date as set out in the Order Form.
“Provider Materials” or “Documentation” means any documentation provided by the Provider for use under this Agreement.
“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 Users from accessing or using the Services as intended by this Agreement.
“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.
“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of any kind, including the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Marks” means a Party’s corporate or trade name, trademark(s), logo(s), domain names or other identification of such party.
“Party” means Customer or Provider, as applicable.
“Person” means any natural person, sole proprietorship, corporation, partnership, limited liability company, firm, joint venture, association, joint-stock company, trust, unincorporated organization, governmental entity, or any other entity.
“Platform”, “Product” or “Mesh’, means the PMS software platform at https://app.mesh.ai or any of its sub-domains or any other URL/location made available by People Mesh, Inc.
“Process” means to take any action or perform any operation or set of operations, which is performed on personal data, Customer Data, content, or other information, whether or not by automated means, such as 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.
“Representatives” means officers, employees, auditors, legal counsel, professional advisers, agents, consultants and contractors of each Party and a Subcontractor.
“Resultant Data” means information, data and other content that is derived by or through the Services from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.
“Services” means the services provided under this Agreement or in an Order Form, including access to the services, any maintenance, training, configuration, data extraction, data feed, support, hosting, professional, and any other service provided by Provider to Customer as identified in an Order Form.
“Specifications” means the requirements for the Services provided in the applicable Documentation, or Order Form.
“Third-party Materials” means any documentation related to third-party service providers used by People Mesh, Inc. for rendering our Services for use under this Agreement.
“We”, “Us”, “Our”, or “Provider” means People Mesh, Inc.
“You”, “Your”, or “Customer” means the company or other legal entity for which you are accepting this Agreement.
2. Services.
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-transferable (except in compliance with Section 14.8) right to access and use the Services during the Subscription Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. Provider shall provide to Customer the Access Credentials within a reasonable time following the Effective Date. The total number of Authorized Users at signup stage will not exceed the number set forth in the Order Form, except as expressly agreed to in writing by the parties.
2.2 Documentation License. Provider hereby grants to Customer a non-exclusive, sub-licensable, non-transferable (except in compliance with Section 14.8) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
2.3 Order Forms. The Parties may enter into Order Forms under this Agreement. Provider and Customer agrees that Customer’s affiliates may enter into Order Forms under this Agreement. Any reference in the Agreement to “Customer” will refer to the Customer entity signing the Order Form. Each Order Form will incorporate the terms and conditions of this Agreement and will be a separate contract between the entities entering into the Order Form.
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, the Platform, and the Services; 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 Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services 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 Platform, 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 Subscription Term, maintain within its organization a service manager if included in the Mesh product plan 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 Subscription 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 Subscription Term, request in writing changes to the Services. The Parties shall evaluate and, if agreed, implement all such requested changes. No requested changes will be effective unless and until memorialized in a written change order signed by both Parties.
2.8 Subcontractors. Subject to Section 2.4(a), Provider may from time to time in its discretion engage third parties to perform any part of the Services (each, a “Subcontractor”) provided that Provider shall first notify the Customer before such engagement. The Provider shall ensure that any Subcontractor complies with all relevant terms of this Agreement and shall remain liable for any and all acts and omissions of each Subcontractor to the same extent as if such acts and omissions were by the Provider.
2.9 Suspension or Termination of Services. Provider may, directly or indirectly, and by use of a Provider’s disabling device or any other lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services 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 sole discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services 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 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; (iii) non-payment of invoices/dues for due amount as per active licenses beyond the due date as per the Order Form or (iv) this Agreement expires or is terminated. This Section 2.9 does not limit any of Provider’s other rights or remedies, whether at law, in equity, or under this Agreement.
2.10 Subscription Term. The initial term of each subscription is specified on the Order Form. Subscriptions will automatically renew at the end of each Subscription Term for additional periods equal to current term, unless either Party gives the other written notice of non-renewal at least 30 days before the end of the then-current subscription term. If not specified, the default term shall be twelve (12) months.
3. Use Restrictions; Customer shall not, and shall not permit any other Person 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 this Agreement 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 other than an Authorized User, 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 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 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 to any 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 the Services 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 the Services or Provider Materials for purposes of competitive analysis of the Services or Provider Materials, 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 Provider Materials beyond the scope of the authorization granted under this Section 3.
4. Customer Obligations.
4.1 Customer Systems and Cooperation. Customer shall at all times during the Subscription Term: (a) set up, maintain, and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide Provider personnel with such access to Customer’s premises and Customer Systems as is necessary for Provider to perform the Services in accordance with the Specifications; and (c) 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 by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).
4.3 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3, 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 the Services 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.
5. 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.
6. Security.
6.1 Provider Systems and Security Obligations. Provider will employ security measures in accordance with applicable industry practice. Provider has and will retain sole responsibility for the information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Provider or through the use of third-party services to access the Customer Systems or otherwise in connection with the Services (“Provider Systems”) and shall prevent unauthorized access to the Customer Systems through the Provider Systems.
6.2 Data Breach Procedures. Provider maintains a data breach plan in accordance with the criteria set forth in Provider’s Privacy and Security Policy and shall implement the procedures required under such data breach plan on the occurrence of a “Data Breach” (as defined in such plan).
6.3 Customer Control and Responsibility. 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 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 to access the Platform or otherwise in connection with the 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 Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
6.4 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 Customer Data for Processing by the Services.
7. Fees and Payment.
7.1 Fees. Customer will pay to Provider all applicable fees for the Products and Services specified in each Order Form. Fees are payable in the currency specified in the Order Form and are not refundable except as expressly stated herein.
7.2 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.
7.3 Payment. Customer shall pay all Fees and Reimbursable Expenses within 30 days after the date of the invoice therefore. If You provide credit card information to Us, You authorize Us to charge such credit card for all Subscriptions listed in the Order Form for the initial Subscription Term and any renewal Subscription Term(s) as set forth in Section 13.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Subscriptions will only become active upon payment receipt. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
7.4 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 costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and
7.5 No Deductions or Setoffs. All amounts payable to Provider under this Agreement shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law).
7.6 Fee Increases. Provider may increase Fees after the initial Subscription Term, by providing written notice to Customer at least 60 calendar days prior to the commencement of such renewal term and you may choose to opt out of the renewal 30 days prior to the renewal date .
7.7 Reimbursable Expenses. Customer shall reimburse Provider for out-of-pocket expenses incurred by Provider in connection with performing the Services (”Reimbursable Expenses”)that have been approved in writing by the Customer prior to such incurrence.
8. Confidentiality.
8.1 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 8.2, “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, and pricing, and information with respect to which the Disclosing party has contractual or other confidentiality obligations. Without limiting the foregoing: all Provider Materials are the Confidential Information of Provider and the terms of this Agreement are the Confidential Information of each of the Parties.
8.2 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 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; or (d) the Receiving party can demonstrate by written or other documentary records was or is independently developed by the Receiving party without reference to or use of any Confidential Information. Notwithstanding the provisions of Section 8.2 or any other provisions of this Agreement, none of the exclusions in the foregoing of this Section 8.2 shall apply to any Customer Data, whether provided by or on behalf of Customer to Provider or generated or derived from the Processing of such Customer Data.
8.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving party shall:
(a) not access or use Confidential 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 8.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of 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 8.3; 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 8;
(c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its sensitive information and in no event less than a reasonable degree of care;
(d) promptly notify the Disclosing party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and
(e) ensure its Representatives’ compliance with and be responsible and liable for any of its Representatives’ non-compliance with the terms of this Section 8.
(f) Notwithstanding any other provisions of this Agreement, the Receiving party’s obligations under this Section 8 with respect to any Confidential Information that constitutes a trade secret under any applicable law will continue until such time, if ever, as such Confidential Information 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.
8.4 Compelled Disclosures. If the Receiving party 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 Disclosing party can seek a protective order or other remedy or waive its rights under Section 8.3; and (b) provide reasonable assistance to the Disclosing party, 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 8.4, 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 the Receiving party is legally required to disclose.
9. Intellectual Property Rights.
9.1 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 to Third-party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-party Materials. Customer has no right, license, or authorization with respect to any of the Provider Materials except as expressly set forth in Section 2.1 or the applicable third-party license, in each case subject to Section 3. 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.
9.2 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 Property Rights relating thereto, subject to the rights and permissions granted in Section 9.3.
9.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Provider, its Subcontractors, and the Provider personnel to Process the Customer Data strictly as instructed by the Customer or an Authorized User and solely as necessary to provide the Services for Customer’s benefit as provided under this Agreement.
10. Representations and Warranties.
10.1 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 Order Form has been duly authorized by all necessary corporate or organizational action of such Party; and
(d) when the Order Form is 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.
10.2 Additional Provider Representations, Warranties, and Covenants. Provider represents, warrants, and covenants to Customer that:
(a) 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;
(b) to the Provider’s knowledge as of the Effective Date, the Services and Provider Materials and all materials provided by the Provider under this Agreement will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights of any third party or violate any applicable law;
(c) the Provider will not input, upload, transmit, or otherwise provide to or through the Services, Customer Systems or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code; or
(d) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Customer Systems.
10.3 Additional Customer Representations, Warranties, and Covenants. 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 of any third party or violate any applicable law.
10.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10.1 AND SECTION 10.2, 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, ACCURATE, COMPLETE, , 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.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE CUSTOMER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF.
11. Indemnification.
11.1 Provider Indemnification. Provider shall indemnify, defend, and hold harmless Customer and affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Customer Indemnitee”) from and against any and all Losses incurred by such Customer Indemnitee resulting from any action by a third party (other than an affiliate of Customer Indemnitee) to the extent that such Losses arise out of or result from, or are alleged to arise out of or result from:
(a) 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 misappropriation such third party’s US Intellectual Property Rights/US patents, copyrights, or trade secrets; and
(b) unauthorized disclosure of Customer Data. The foregoing obligation does not apply to the extent that the alleged infringement arises from:
(b) allegation of facts that, if true, would constitute Provider’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
(c) negligence or more culpable act or omission (including recklessness or willful misconduct) by a Provider Indemnitee or any third party on behalf of Provider Indemnitee, in connection with this Agreement.
11.2 Customer Indemnification. Customer shall indemnify, defend, and hold harmless Provider 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) to the extent that such Losses arise out of or result from, or are alleged to arise out of or result from:
(a) any claim that the Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with this Agreement is unlawful or actually does or threatens to infringe or misappropriate such third party’s US Intellectual Property Rights/US patents, copyrights, or trade secrets, provided however that the Customer shall have no liability or obligation with respect to any action or Losses to the extent (i) Customer has obtained all the necessary rights and consents in and relating to the Customer Data or (ii) such action or Losses arise out of or result from any unauthorized access to or use, disclosure or other Processing of Customer Data by or on behalf of Provider, or through or enabled by the Provider Systems, whether authorized by Provider, due to a security breach;
(b) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
(c) 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 any Authorized User, in connection with this Agreement.
11.3 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 11.1 or Section 11.2, as the case may be. 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 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 11.3 will not relieve the Indemnitor of its obligations under this Section 11, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
11.4 Mitigation. If any of the Services or Provider Materials are, or in Provider’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or Provider Materials is enjoined or threatened to be enjoined, Provider shall, 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 the Services 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, and subject to Customer’s compliance with its post-termination obligations set forth in Section 13.5, the Provider shall refund to Customer Fees paid in advance for Services that Provider has not performed as of the effective date of termination.
12. Limitations of Liability.
12.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL EITHER PARTY 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 CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PARTY WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE,.
12.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY 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 LICENSOR UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
12.3 The exclusions and limitations in Section 12.1 and Section 12.2 shall not apply to a Party’s indemnification obligations under Section 11 or to losses arising out of or relating to a Party’s gross negligence, wilful misconduct or fraud.
13. Term and Termination.
13.1 Term. The Term of this Agreement shall begin on the Effective Date and shall continue until terminated by either Party as outlined in this Section and Section 11.4.
13.2 Term of User Subscriptions. Subscriptions purchased by You are activated and commence upon payment receipt and continue for the Subscription Term specified therein. Except as otherwise specified in the applicable Order Form, all Subscriptions shall automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is shorter), unless either Party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing change at least 60 days before the end of such prior term, in which case the pricing change shall be effective upon renewal and thereafter.
13.3 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) 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 days after the non-breaching Party provides the breaching Party with written notice of such breach; and
(b) 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.
13.4 No Early Termination or Refunds. Except as provided in Section 13.3, neither Party may terminate for convenience before the Order Form expiration. Customer agrees that in case of early termination of the Subscription Term by it for convenience, Provider will not provide refunds of any prepaid Fees and will invoice for any amounts that have been committed to but not invoiced for during the Term. Customer remains responsible for the balance due.
13.5 Effect of Termination or Expiration. Upon the expiration or termination of this Agreement, unless Customer submits a commercial order to purchase the evaluated Products and Services (“Order Form”), all licenses granted hereunder shall immediately terminate and Customer shall return or destroy all documentation and materials made available by Provider in connection with this Agreement. If the Parties have entered into an Order Form, then all future use of the purchased Product and Services shall be subject to the terms of the Order Form. Notwithstanding, upon expiration or 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 (i) promptly return to Customer, or at Customer’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data or Customer’s Confidential Information; and (ii) permanently erase all Customer Data and Customer’s Confidential Information from all systems Provider directly or indirectly controls, provided that, for clarity, Provider’s obligations under this Section 13.5(b) do not apply to any Resultant Data;
(c) 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 Provider Materials or Provider’s Confidential Information; and (ii) permanently erase all Provider Materials and Provider’s Confidential Information from all systems Customer directly or indirectly controls.
(d) 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 retain Customer Data; in the case of each of subclause (i) and (ii) in its then current state and solely to the extent and for so long as required by applicable law; (iii) 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 (iv) all information and materials described in this Section 13.5(d) will remain subject to all confidentiality, security, and other applicable requirements of this Agreement;
(e) Provider may disable all Customer and Authorized User access to the Provider Materials;
(f) if Customer terminates this Agreement pursuant to Section 13.3(a) or in case of early termination of a Subscription Term by Provider for convenience, Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Provider will refund to Customer Fees paid in advance for Services that Provider has not performed as of the effective date of termination.
(g) if Provider terminates this Agreement pursuant to Section 13.2(a) or or in case of early termination of a Subscription Term by Customer for convenience, all Fees that would have become payable had the Agreement remained in effect until expiration of the Subscription Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees and Reimbursable Expenses, on receipt of Provider’s invoice therefor.
13.6 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, Section 8, Section 10.4, Section 11, Section 12, Section 13.3, Section 13.4, Section 13.5, this Section 13.6, and Section 14.
14. Miscellaneous.
14.1 Further Assurances. On a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
14.2 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.
14.3 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.
14.4 Notices. Except as otherwise expressly set forth in this Agreement, 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 at the address set forth beneath the Party’s signature below (or to such other address or such other person that such Party may designate from time to time in accordance with this Section 14.4). Notices sent in accordance with this Section 14.4 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, if by facsimile or 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 day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
14.5 Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. 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 this Agreement to the same extent as if they were set forth verbatim herein.
14.6 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
14.7 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, the terms and conditions on the Platform, both written and oral, with respect to such subject matter.
14.8 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. No assignment, delegation, or 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 14.8 is void. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.
14.9 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 this Agreement if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of 30 days or more.
(b) Affected Party Obligations. 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.
14.10 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.
14.11 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. 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.
14.12 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 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 effectuate 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.
14.13 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. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the city of San Francisco and County of San Francisco, and each Party irrevocably submits to the exclusive jurisdiction of 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.
14.14 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 8, Section 6.1, Section 6.2 or Section 6.3 or, in the case of Customer, Section 3 or Section 4.3, or in the case of Provider, Section 10.2(c) and Section 10.2(d), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party 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 may be available at law, in equity, or otherwise.
