Master Service Agreement

MASTER SERVICES AGREEMENT
Last Updated: [12-29-2023]
This Master Services Agreement (together with all the exhibits and other attachments hereto, this
“Agreement”) is by and between [Modeco Systems, LLC (TIMESCAPE)] (“Service Provider”) and the
enterprise customer or other entity that receives the Services or purchases and Products (the
“Customer”). This Agreement constitutes a binding agreement between Service Provider and Customer
(together, the “Parties” and, individually, each a “Party”).
This Agreement governs Customer’s access to, use of, and receipt of the Services and purchase of any
Products. BY CLICKING A BOX INDICATING CUSTOMER’S ACCEPTANCE OF THIS AGREEMENT OR
EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER ACKNOWLEDGES THAT
IT HAS READ, UNDERSTANDS, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING
TO THIS AGREEMENT ON BEHALF OF A CUSTOMER, YOU REPRESENT THAT YOU HAVE THE AUTHORITY
TO BIND SUCH CUSTOMER TO THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THIS
AGREEMENT, CUSTOMER MUST NOT ACCEPT THIS AGREEMENT AND MUST NOT ACCESS OR USE, OR
ATTEMPT TO ACCESS OR USE, THE SERVICES OR PURCHASE, OR ATTEMPT TO PURCHASE, ANY
PRODUCTS.
THE LICENSES AND RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON
THIS AGREEMENT WITHOUT MODIFICATION BY CUSTOMER. ANY ADDITIONAL OR DIFFERENT TERMS
OR CONDITIONS IN ANY FORM DELIVERED BY CUSTOMER OR ON CUSTOMER’S BEHALF IN ANY MANNER
ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND
REJECTION OF THEM ARE HEREBY GIVEN BY SERVICE PROVIDER.
1. Defined Terms. For purposes of this Agreement, the following capitalized terms shall have the
meanings ascribed thereto. Other capitalized terms used in this Agreement are defined in the context
in which they are used and shall have the meanings there indicated.
(a) “Account” means a password-protected account assigned to a User that provides such User
access to certain features and functionalities of the Services. As used in these Terms, the term
Account refers to all Accounts created by Customer or on Customer’s behalf for use by
Customer’s Personnel to access or use the Services on Customer’s behalf.
(b) “Account ID” means the username and password a User uses to access such User’s Account.
(c) “Administrator” means the individual authorized by Customer to manage Customer’s access to
and use of the Services, including, without limitation, viewing reports, managing User roles,
activating/deactivating features, setting default values and performing other administrative
functions available to such individual(s) through the Administrator Account.
(d) “Administrator Account” means the Account provided to Customer by Service Provider and
assigned to the Administrator.
(e) “Affiliate” means any entity that controls, is controlled by, or is under common control with a
Party, where “control” means the direct or indirect ownership of more than 50% of the voting
securities or other ownership interests of such entity or Party.
(f) “Aggregated Data” means any Customer Data or any other data or information derived from a
User’s use of the Services or necessary to provide the Services that is de-identified, or otherwise
anonymized, and aggregated by or on behalf of Service Provider in a manner that complies with
any requirements under applicable law relating to the nature and effect of such aggregation, deidentification or anonymization and, in all cases, does not, as applicable, identify the source of
the foregoing or any individual to whom the foregoing relates. For clarity, the term Aggregated
Data includes, without limitation, data and information that is derived from a User’s access to or
use of the Services.
(g) “Confidential Information” means any information prepared for or delivered to a Party (the
“Receiving Party”) by the other Party or its representative (the “Disclosing Party”) (including
information or data received by the Disclosing Party from a third party and to whom the
Disclosing Party has confidentiality obligations) that: (1) is marked or designated by the Disclosing
Party as confidential or proprietary; (2) is disclosed orally or visually provided that such
information is identified by the Disclosing Party at the time of disclosure as confidential or
proprietary; or (3) is known to the Receiving Party, or should be known to a reasonable person
given the contents and circumstances of the disclosure, as being treated as confidential or
proprietary by the Disclosing Party, even if the Disclosing Party fails to take the actions specified
in (1) or (2) with respect to such information.
(h) “Customer Data” means any data collected through, or otherwise generated by, Customer’s or
Customer’s Personnel’s use of the Services or purchase of any Products. For clarity, Customer
Data does not include any Feedback or Aggregated Data.
(i) “Customer’s Personnel” means Users and Customer’s officers, employees, contractors,
consultants or agents.
(j) “Documentation” means all Service Provider user manuals, operating instructions and other
documentation relating to the access to, use of or operation of the Services or Products, as
generally made available by Service Provider to Customer and/or Users from time to time.
(k) “Feedback” means all ideas, advice, recommendations, proposals, suggestions, comments and
other feedback Customer or Customer’s Personnel provide to Service Provider related to the
Services or Products or any other services or products provided by Service Provider or its
Affiliates.
(l) “Intellectual Property” means, to the extent that any of the following are recognized in any
jurisdiction worldwide: (1) intellectual property and/or proprietary rights, whether registered or
unregistered, including copyrights and patent rights (including applications for patent
protection); (2) publicity rights, trade dress, registered or otherwise protected trademarks, trade
names, service marks and protections from trademark dilution; (3) trade secrets, as defined in
the Uniform Trade Secrets Act or its equivalent in applicable jurisdictions; and (4) proprietary
products, services, know-how, techniques, business processes, configurations and business
methods.
(m) “Order Form” means any quote or proposal provided by or on behalf of Service Provider, online
order form, statement of work, or other ordering document executed or otherwise accepted by
Customer, in all cases specifying, as applicable, the Services to be provided to Customer and/or
the quantity and type of Products purchased by Customer thereunder.
(n) “Product” means any hardware or other tangible products Customer purchases from Service
Provider or otherwise accepts from Service Provider pursuant to an Order Form.
(o) “Professional Services” means professional services, including, without limitation, software
maintenance services and installation and consulting services Customer purchases from Service
Provider or otherwise accepts from Service Provider pursuant to one or more Order Forms.
(p) “SaaS Offerings” means the software-as-a-service offering(s) and related mobile applications
Service Provider provides to Customer on a software-as-a-service basis pursuant to an applicable
Order Form. As referred to herein and as applicable, the term SaaS Offerings includes all SaaS
Software, Documentation and Websites utilized by Service Provider or otherwise made available
to Customer in connection with the foregoing.
(q) “SaaS Software” means the software utilized by Service Provider to provide and operate the SaaS
Offerings.
(r) “Services” means the SaaS Offerings and Professional Services Service Provider provides to
Customer pursuant to one or more Order Forms.
(s) “User” means each individual person and/or device, including Customer and Customer’s
Personnel, who Customer, in compliance with this Agreement and the applicable Order Form(s),
authorizes to, as applicable, access, use or receive the Services.
(t) “Websites” means the websites, including any and all sub-domains thereof and the features,
functionalities, applications, browser extensions and other services available through the
foregoing utilized by Service Provider to provide and operate the SaaS Offerings.
2. Products and Services General Terms.
(a) Order Forms. Customer may request Products or Services by submitting an Order Form to Service
Provider. Each such Order Form is subject to approval by Service Provider. Service Provider may,
by for executing or otherwise accepting an Order Form, reject such Order Form based on, as
applicable, Product availability or Services capacity and Service Provider does not and cannot
guarantee that Service Provider will execute or otherwise accept every Order Form submitted by
Customer. For clarity and without limiting anything set forth herein, all Order Forms executed or
otherwise accepted by Service Provider are subject to this Agreement.
(b) Pricing Information. Subject to this Agreement, pricing for Products and Services will be as
established on proposals issued by Service Provider in response to Customer’s request to receive
Products or Services (each, a “Proposal”), subject to any additional terms or conditions set forth
therein; provided, however, if Service Provider does not provide a Proposal for a particular
request, pricing shall be established on the applicable Order Form executed or otherwise
accepted by Service Provider.
(c) Additional Terms. Proposals expire thirty (30) days after provided by Service Provider unless
another time period has been specified therein. Except with respect to unexpired Proposals and
Order Forms previously executed or otherwise accepted by Service Provider, Service Provider
reserves the right to make changes to the Products or Services, including, without limitation, the
pricing therefor at any time.
(d) Documentation License. Subject to Customer’s compliance with this Agreement and the terms
of the applicable Order Form(s), Service Provider hereby grants Customer a non-excusive, nonsublicensable, non-transferable license to use the Documentation during the term set forth in
the applicable Order Form(s) solely for Customer’s internal business purposes in connection with
its access to and use of the applicable Products or Services.
(e) Support. Service Provider may provide general technical and other support for the Products and
Services as described in the Documentation. Notwithstanding the foregoing, except as otherwise
set forth in the applicable Order Form(s), Service Provider has no obligations under the terms of
this Agreement to provide Customer with any specific technical or other support with respect to
the Products or Services.
(f) Commercial Software. As defined in FAR section 2.101, the Software, Websites, Documentation,
and any software incorporated in or utilized by the Products are “commercial items” and
according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer
software” and “commercial computer software documentation.” Consistent with DFAR section
227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance,
display or disclosure of such commercial computer software or commercial computer software
documentation by the U.S. Government will be governed solely on the terms of this Agreement
and the applicable Order Form(s) and will be prohibited except to the extent expressly permitted
by the terms of this Agreement and/or the applicable Order Form(s).
(g) Customer Equipment. Except as set forth in the applicable Order Form(s), Customer is solely
responsible for obtaining and maintaining any equipment and ancillary services need to, as
applicable, install, connect to, access otherwise use and Product or Services, including mobile
devices, modems, hardware, servers, software, operating systems, networks, web services and
the like (collectively, “Customer Equipment”). Customer shall also be responsible for maintaining
the security of the Customer Equipment and for all uses of the Customer Equipment with or
without Customer’s knowledge or consent.
(h) Third Party Services. Service Provider may, now or in the future, include features and
functionalities in one or more of the Products or Services that allow Customer to access, connect
to, use, or otherwise interact with certain applications, websites, and other content owned or
otherwise controlled by third parties (“Third Party Services”). Customer’s access to and/or use
of any Third Party Services may be subject to separate terms imposed by the providers of such
Third Party Services (“Third Party Terms”). By accessing or using any Third Party Services,
Customer acknowledges and agrees that Customer is solely responsible for ensuring Customer’s
and Users’ use of any Third Party Services comply with all applicable terms and conditions of the
applicable Third Party Terms (if any). Customer further acknowledges and agrees that Service
Provider is not responsible or liable for: (1) the availability, functionality or accuracy of any Third
Party Service; or (2) the content, products or services available through such Third Party Services.
Access to Third Party Services through or in connection with Customer’s or Users’ access to or
use of Products or Services does not imply any endorsement by Service Provider of the Third
Party Services or any products or services available from or through the Third Party Services.
3. SaaS Offerings.
(a) General. Subject to the applicable Order Form(s), Service Provider will provide the applicable
SaaS Offering(s) to Customer during the term identified in the applicable Order Form(s).
(b) Authorization for Access and Use. Subject to Customer’s compliance with this Agreement and
the applicable Order Form(s), Service Provider grants to Customer a limited, non-exclusive, nontransferable, non-sublicensable, non-assignable, revocable right to access and use the SaaS
Offerings in accordance with this Agreement and the applicable Order Form(s) and as described
in the applicable Documentation. For clarity, the foregoing shall solely include the rights to access
and use the SaaS Offerings for Customer’s own internal business purposes unless otherwise
expressly set forth in the applicable Order Form(s). Customer’s rights with respect to the SaaS
Offerings shall terminate upon the expiration or earlier termination of the applicable Order
Form(s).
(c) Accounts.
(1) Where applicable, subject to Customer’s compliance with this Agreement and the applicable
Order Form(s), Service Provider will provide one (1) Administrator Account to Customer for
use by Customer’s Administrator to manage Customer’s access to and use of the applicable
SaaS Offering(s), including creating individual Accounts to enable Users (subject to any User
limits set forth in the applicable Order Form(s)) to access and use such SaaS Offering(s).
(2) Each Account and Account ID, including any Administrator Account, is personal in nature
and may only be used by the User assigned to the Account. Without limiting the foregoing,
Customer shall not allow any access to or use of Customer’s Accounts or Customer’s Account
IDs by anyone other than Customer and Users.
(3) Customer agrees to change any Account ID (or close the applicable Account) immediately if
such Account ID is lost, stolen or otherwise compromised and to immediately notify Service
Provider of such incident.
(4) Customer is fully responsible for all access to and use of the SaaS Offerings associated with
Customer’s Accounts and Customer’s Account IDs (whether lawful or unlawful) and for any
actions taken through Customer’s Accounts or using Customer’s Account IDs.
(5) Customer agrees that all information provided in connection with establishing Customer’s
Accounts: (1) will be true and complete; and (2) will be promptly updated and kept accurate
and current.
(6) Neither Customer nor Users may: (1) select or use an Account ID of another person with the
intent to impersonate that person; or (2) select or use an Account ID that Service Provider,
in its sole discretion, deems offensive.
(7) Subject to any restrictions set forth herein, including, without limitation, restrictions on the
disclosure of Confidential Information, Customer authorizes Service Provider to access any
Account, including any Customer Data contained therein, as necessary to administer,
provide, operate or configure the SaaS Offerings.
(d) Restrictions. Customer shall not, and shall not permit others to: (1) access or use any SaaS
Offering other than as set forth in this Agreement, the applicable Order Form(s), and the
applicable Documentation; (2) copy any SaaS Offering or Documentation, except as permitted in
this Agreement or the applicable Order Form(s); (3) use any SaaS Offering in a service bureau or
time sharing environment (including using any SaaS Offering to provide third parties a service
consisting solely of the collection and entry of data and other information into any SaaS Offering);
(4) modify, disassemble, reverse engineer, decompile, transfer or attempt to reconstruct or
discover any source code or underlying idea, algorithms, file formats or programming
interoperability of any SaaS Offering; (5) sell, assign, transfer, sublicense, lease, pledge, rent or
otherwise share Customer’s rights under this Agreement or any applicable Order Form; (6) create
any derivative works based upon any SaaS Offering; (7) modify, obscure or remove any product
identification or proprietary notices on any SaaS Offering or any copies thereof; (8) except as
specified in this Agreement or the applicable Order Form(s), modify or incorporate the SaaS
Offering into or with other software; (9) transmit or upload any software or materials that
contain any viruses, worms, trojan horses, defects, time bombs or other items of a destructive
nature through or in connection with Customer’s access to or use of any SaaS Offering; or (10)
access or use any SaaS Offering in violation of any applicable law, regulation or rule.
(e) Authorized Users. Customer may access and use the SaaS Offering(s) solely as permitted under
this Agreement and the applicable Order Form(s) and as described in the applicable
Documentation. Without limiting anything set forth herein, any access to and use of the SaaS
Offering(s) by Customer or on Customer’s behalf shall be solely by Customer and Users.
(f) Use of SaaS Offerings.
(1) Customer acknowledges and agrees that under no circumstances will Service Provider or
any of its licensors or suppliers be responsible for any loss, damage or liability arising out of
any mistakes or other errors made by Customer as a result of Customer’s access to or use
of any SaaS Offering. Customer further agrees to maintain all security regarding Account IDs
and connectivity with the SaaS Offering(s). If an Account ID is stolen or otherwise
compromised and such theft or compromise is not due to the fault of Service Provider,
Service Provider shall not be responsible for any ensuing unauthorized access to or use of
the applicable SaaS Offering(s).
(2) Customer shall, at all times, be responsible for the actions of Customer’s Personnel in
connection with Customer’s obligations under this Agreement and each Order Form,
including any access to or use of the SaaS Offering(s). Customer shall ensure Customer’s
Personnel: (1) do not breach the terms of this Agreement or any Order Form, including any
restrictions set forth in the foregoing, or the Documentation with respect to the access to
or use of the applicable SaaS Offering(s); and (2) comply with all applicable laws in
connection with this Agreement and each Order Form, including, without limitation, access
to and use of the applicable SaaS Offering(s). Customer acknowledges and agrees that any
breach of this Agreement or any Order Form by Customer’s Personnel shall constitute
Customer’s breach thereof.
(g) Changes to SaaS Offerings. Service Provider may, in its sole discretion, make any changes to any
SaaS Offering that it deems necessary or useful to: (1) maintain or enhance the: (a) quality or
delivery of Service Provider’s products or services to its customers; (b) market for Service
Provider’s products or services; or (c) cost efficiency or performance of the SaaS Offering; or (2)
comply with any applicable laws or regulations.
(h) Export Restrictions. Customer shall not remove or export from the United States or allow the
export or re-export of any SaaS Offering or anything related thereto, or any direct product
thereof, in violation of any restrictions, laws or regulations of the United States Department of
Commerce, the United States Department of Treasury Office of Foreign Assets Control or any
other United States or foreign agency or authority.
(i) Suspension. Customer acknowledges and agrees that the SaaS Offerings may include
technological means of determining Customer’s compliance with this Agreement, the applicable
Order Form(s), and the Documentation. Without limiting anything set forth herein, Service
Provider may immediately suspend all or part of Customer’s or Users’ access to and use of any
SaaS Offering (including access to and use of the applicable Account) if: (1) Service Provider
reasonably determines that Customer’s or any User’s access to or use of the SaaS Offering could
adversely impact the SaaS Offering, a third party’s use of services Service Provider provides to
such third party or the network or servers Service Provider uses to operate or provide the SaaS
Offering; (2) there is suspected unauthorized third party access to or use of the SaaS Offering; (3)
Service Provider reasonably believes that immediate suspension is required to comply with
applicable laws; (4) Customer or one or more of Users is in breach of the Terms of Service or
Sections 3(c), 3(d), 3(e) or 3(h) of this Agreement; or (5) Service Provider receives a judicial or
other governmental demand or order, subpoena or law enforcement request that expressly or
by reasonable implication requires Service Provider to do so. Service Provider will reinstate any
SaaS Offering suspended pursuant to this Section 3(i) when Service Provider determines, in its
sole discretion, the circumstances giving rise to the suspension have been resolved. Unless
prohibited by applicable law and where reasonably possible, Service Provider will provide
Customer with prior notice of any such suspension and the basis for any such suspension.
(j) Installed Technology. In addition to any Products specified in the applicable Order Form,
Customer’s access to and use of the SaaS Offering(s) may require Customer to install associated
software provided or otherwise made available by Service Provider to Customer on Customer’s
systems (“Installed Technology”), as set forth in the Documentation. This Section applies to the
extent Customer’s access to or use of a SaaS Offering requires the installation and use of Installed
Technology.
(1) Delivery. Any Installed Technology will be provided or otherwise made available by Service
Provider to Customer via download pursuant to applicable instructions provided by Service
Provider to Customer.
(2) License. Subject to the terms and conditions of this Agreement and the applicable Order
Form(s), during the term of the applicable Order Form(s), Service Provider grants to
Customer a non-exclusive, non-transferable, non-sublicensable, revocable license to install
the Installed Technology on Customer’s applicable systems and to use such Installed
Technology solely in accordance with the terms of this Agreement, the applicable Order
Form(s) and the Documentation to facilitate Customer’s access to and use of the applicable
SaaS Offering(s).
(3) Releases and Patches
(A) During the term of the applicable Order Form(s), Service Provider will provide or
otherwise make available to Customer maintenance updates, revisions and product
enhancements for the applicable Installed Technology and Documentation
(collectively, “Installed Technology Releases”) if and when Service Provider makes any
such Installed Technology Releases generally available.
(B) In the event Service Provider makes any Installed Technology Release available to
Customer, Service Provider will notify Customer of the availability of such Installed
Technology Update via email, through a notification provided within the SaaS
Offering(s) or, at Service Provider’s discretion, by telephone or other direct
communication. Upon Service Provider providing such notification or otherwise
providing Customer an Installed Technology Release, Customer shall promptly use
commercially reasonable efforts to test, install and implement production use of such
Installed Technology Release and discontinue any and all use of any SaaS Offering or
Documentation which has not implemented the applicable Installed Technology
Release.
(C) Notwithstanding anything to the contrary herein: (1) Service Provider shall have the
right to withdraw any Installed Technology Release in the event of an emergency, which
may include, without limitation, an Installed Technology Release that may negatively
impact: (a) the functionality of the SaaS Offering(s) or Installed Technology, (b)
Customer; or (c) Service Provider; (2) Service Provider may, but is not obligated to,
automatically apply any Installed Technology Release to any Installed Technology; and
(3) Customer is responsible for acquiring at its own cost and expense any updated or
additional hardware, software, firmware or other components necessary to test, install
or implement production use of any Installed Technology Release.
4. Products.
(a) Delivery. Service Provider will deliver all tangible Products to the delivery address specified by
Customer in the applicable Order Form (the “Delivery Location”). Notwithstanding anything
herein to the contrary, title to and all risk of loss and damage to tangible Products purchased by
Customer under this Agreement pursuant to an Order Form shall pass to Customer upon delivery
of such Products to the Delivery Location. Unless Customer provides shipping instructions,
Service Provider is authorized to make shipping arrangements on Customer’s behalf. Customer
shall be responsible for all costs and expenses associated with shipment of tangible Products
after delivery by Service Provider to the Delivery Location.
(b) Title. Except for the rights granted under this Agreement and the applicable Order Form(s), all
right, title and ownership, including, without limitation, all Intellectual Property rights, in and to
the Products remain with Service Provider or the applicable licensor(s) of the same, regardless of
the form or media in or on which they may exist.
(c) Warranties.
(1) When Service Provider is not the licensor or manufacturer of a Product, the only warranties
offered by Service Provider are those of the licensor/manufacturer, not Service Provider,
and Customer relies on the licensor’s/manufacturer’s descriptions and specifications only
and not on any statements, specifications, photographs or other depictions representing
the Product that may be provided or otherwise made available by Service Provider. When
Service Provider is the licensor or manufacturer of a Product, the only warranties offered
are those contained in this Agreement and the applicable Order Form(s) (if any) and
Customer is not relying on any warranties or representations in any descriptions,
statements, specifications, photographs or other depictions representing the Product.
(2) Without limiting the foregoing, when Service Provider is the licensor or manufacturer of a
Product, Service Provider warrants to Customer that such Product will be free from defects
in materials or workmanship for one (1) year from the date of receipt or original retail
purchase (the “Limited Product Warranty”). This Limited Product Warranty will apply only
if Customer purchased or otherwise obtained the applicable Product from Service Provider
pursuant to an Order Form executed or otherwise accepted by Service Provider. This Limited
Product Warranty does not apply to any loss or damage caused by accidents, misuse,
neglect, disassembly, alterations, servicing other than by Service Provider, water damage,
extreme heat or other environmental conditions, if the Product’s serial number has been
removed or replaced or other causes beyond Service Provider’s control. In order to obtain
warranty service under the Limited Product Warranty, Customer must submit a valid claim
to Service Provider, during the warranty period, by contacting Service Provider and
obtaining a return materials authorization (“RMA”) number and returning the applicable
Product to Service Provider within thirty (30) days of Customer’s receipt of the RMA number.
Customer’s sole and exclusive remedy (and Service Provider’s entire liability) with respect
to any defective Product covered by this Limited Product Warranty will be for Service
Provider to either repair or replace such defective Product; no refunds will be issued. The
repaired or replaced Product will continue to be subject to the Limited Product Warranty
for the remaining time of the original warranty period. All returned Products for which
Customer has received a replacement will become Service Provider’s property. THIS
PARAGRAPH SETS FORTH SERVICE PROVIDER’S ENTIRE LIABILITY AND CUSTOMER’S
EXCLUSIVE REMEDY FOR ANY DEFECTIVE PRODUCT COVERED BY THE LIMITED PRODUCT
WARRANTY.
(d) Returns. Except as otherwise set forth in this Agreement or the applicable Order Form(s),
Customer may return any tangible Product for a refund within thirty (30) days of the shipment
date, subject to the following exceptions and fees. Returned Products that conform to all
requirements of this Agreement and the applicable Order Form(s) are subject to a restocking fee
equal to twenty-five percent (25%) of the purchase price for such Products. Except in the event
of a shipping error, Customer is responsible for the cost of shipping returned Products back to
Service Provider. Notwithstanding the foregoing, the following Products are non-returnable and
non-refundable: (1) non-tangible Products; (2) any SaaS Offerings, in whole or in part; (3)
Products that have been unpackaged from their factory packaging or on which any factory
packaging seal has been removed or broken; (4) Products that have been modified, physically
damaged or defaced; (5) Products returned without their original retail packaging; and (6)
Products provided via large volume orders with standard pricing discounts.
5. Professional Services.
(a) Scope of Professional Services. Service Provider will perform the Professional Services as
specified and in the quantities set forth in the applicable Order Form. All Professional Services
shall be described and documented in one or more Order Forms unless otherwise expressly
agreed by the Parties in writing.
(b) Changes in Scope of Professional Services. Either Party may propose changes to the scope of the
Professional Services to be provided pursuant to an Order Form by delivering a written
notification to the other Party describing the desired changes (“Change Request”). Upon delivery
of a Change Request, the Parties shall negotiate in good faith any modifications necessary to the
applicable Order Form, or any separate written agreement between the Parties concerning such
Professional Services, including changes to the cost or time of delivery associated with the
Change Request. Notwithstanding the foregoing, no Professional Services will be modified or
changed until the Parties agree upon a Change Request and execute a written change order or
other amendment to the applicable Order Form or any separate written agreement between the
Parties concerning such Professional Services.
(c) Performance Schedule; Delays. In the event any delay in the performance of the Professional
Services occur as a result of Customer’s failure to cooperate or ultimately perform Customer’s
obligations applicable to such Professional Services, Service Provider shall not incur any liability
for Service Provider’s non-performance in the delivery of such Professional Services as a result
of such delay.
6. Customer Data.
(a) Consent and Notices.
(1) Customer is responsible for obtaining any consents and providing any legally required
notices necessary to enable: (1) Customer’s and Users’ access to and use of the Products or
Services; and (2) Service Provider’s access to, storage of and processing of Customer Data
collected, received or otherwise generated by Service Provider in connection with
Customer’s and Users’ access to and use of the Products or Services and as otherwise
contemplated under this Agreement and the applicable Order Form(s).
(2) Customer acknowledges and agrees that it is solely responsible for requesting and obtaining
from Service Provider all information necessary to accurately explain all relevant data
practices in connection with any consents and notices. Customer acknowledges and agrees
that Service Provider will not, and shall have no responsibility to, provide notices or obtain
consents directly from individuals on Customer’s behalf and Service Provider shall have no
liability for Customer’s failure to provide any such notices or obtain any such consents.
(b) Permitted Use of Customer Data. Customer acknowledges and agrees that Service Provider shall
have the right to:
(1) access Customer Data to administer, provide, operate and configure the Products or
Services;
(2) reproduce, translate, encode, publish, use and distribute Customer Data to the extent
necessary to administer, provide, operate or configure the Products or Services and as
otherwise described in this Agreement, the applicable Order Form(s) or the Documentation;
and
(3) use the Customer Data to create Aggregated Data and to use, share and commercialize such
Aggregated Data for any lawful purpose, including, without limitation, improving the
Products or Services and developing new products and services.
(c) Prohibited Use of Customer Data. Except as otherwise agreed by the Parties in writing:
(1) Service Provider shall not, whether directly or indirectly, sell, pledge, assign, license, rent,
gift, distribute or otherwise transfer or permit access to Customer Data to a third party
except as provided in this Agreement, the applicable Order Form(s) or the Documentation
or where necessary to administer, provide, operate or configure the Products or Services;
and
(2) at no time shall Service Provider derive any revenue from, otherwise monetize or attempt
to derive any revenue from the use of Customer Data except for the fees earned under this
Agreement.
(d) Restrictions. Customer and Customer’s Personnel shall not provide Service Provider any
Customer Data except to the extent necessary for Customer and Users to access and use the
Products and Services in accordance with this Agreement, the applicable Order Form(s) and the
Documentation. Without limiting the generality of the foregoing, Customer shall not provide
Service Provider any Customer Data that Customer is not permitted to disclose pursuant to
applicable laws.
(e) Non-Infringement. Without limiting anything set forth in this Agreement or the applicable Order
Form(s), Customer represents and warrants to Service Provider that: (1) Customer has all
necessary rights in and to any and all Customer Data provided to Service Provider in connection
with this Agreement and the applicable Order Form(s); (2) Customer Data shall not infringe any
third party’s Intellectual Property rights; and (3) Customer Data does not contain, promote or
link to material that is pornographic, defamatory, offensive, harassing, malicious, illegal or
otherwise objectionable.
(f) Removal. Without limiting anything set forth in this Agreement and the applicable Order Form(s),
upon the expiration or earlier termination of the applicable Order Form, Service Provider will
remove the applicable Customer Data from the Services and such Customer Data will no longer
be accessible or otherwise available to Customer or any User through the Services. Within ninety
(90) days after the expiration or earlier termination of the applicable Order Form, Service
Provider will securely erase or destroy the applicable Customer Data in Service Provider’s
possession or under its reasonable control; provided, however, Customer acknowledges and
agrees that Service Provider will securely erase or destroy any Customer Data stored on Service
Provider’s backup or archive systems within six (6) months after the expiration or earlier
termination of the applicable Order Form. For clarity, the removal and destruction of Customer
Data shall not apply to any Aggregated Data and the expiration or earlier termination of the
applicable Order Form shall not affect, limit or otherwise modify Service Provider’s rights in and
to any and all such Aggregated Data.
7. Ownership.
(a) SaaS Offerings. As between the Parties, Service Provider owns all right, title and interest in and
to the SaaS Offerings, including any outputs, analytics, improvements, modifications,
enhancements, additions and derivatives therein or thereof and any and all Intellectual Property
rights in the foregoing. Customer does not acquire any rights, express or implied, in the foregoing
other than those specified in this Agreement or the applicable Order Form(s).
(b) Feedback. By submitting Feedback to Service Provider in any way, Customer acknowledges and
agrees that: (1) the Feedback does not contain confidential or proprietary information; (2) Service
Provider is not under any obligation of confidentiality, express or implied, with respect to the
Feedback; (3) Service Provider shall be entitled to disclose (or choose not to disclose) such
Feedback for any purpose and in any way; (4) Service Provider may have something similar to the
Feedback already under consideration or in development; (5) any Feedback which is not subject
to a patent automatically becomes Service Provider’s property without obligation to Customer;
and (6) Customer is not entitled to any compensation or reimbursement of any kind from Service
Provider under any circumstances with respect to or in connection with any such Feedback.
(c) Aggregated Data. Service Provider owns all right, title and interest in and to any Aggregated Data.
Customer does not acquire any rights, express or implied, in any Aggregated Data, other than
those specified in this Agreement or the applicable Order Form(s).
(d) Customer Data. As between the Parties, Customer owns all right, title and interest in and to
Customer Data, irrespective of whether Customer Data is stored via the Services or in any
databases created using the Services. For clarity, the foregoing only applies to the individual
components of Customer Data and does not include any Service Provider Intellectual Property
incorporated in or applied to Customer Data through or in connection with the administration,
performance, operation or configuration of the Products or Services. Service Provider does not
acquire any rights, express or implied, in Customer Data, other than those specified in this
Agreement or the applicable Order Form(s).
(a) Third Party Intellectual Property. Customer acknowledges that Service Provider may have
incorporated into the Products or Services, or otherwise provide access from the Products or
Services to, Intellectual Property owned by third parties, which may include, without limitation,
Third Party Services (collectively, “Third Party Intellectual Property”) and Customer agrees that
Customer’s right to access or use such Third Party Intellectual Property, including, without
limitation, applicable features and functionalities of the SaaS Offerings, may be subject to
Customer’s agreement to additional licensing terms concerning such Third Party Intellectual
Property, which may include, without limitation, Third Party Terms. Customer’s express
agreement to such additional licensing terms may be required before Customer can access and
use certain Third Party Intellectual Property. Without limiting the foregoing, Customer
acknowledges that the SaaS Offerings may include or use software subject to open source license
agreements, including, without limitation, such software described or otherwise identified in the
Documentation. Such open source licensing agreements apply, to the extent not in conflict with
such agreements, to Customer’s access to and use of such software in addition to and not in lieu
of the terms and conditions of this Agreement and the applicable Order Form(s).
8. Fees and Payments.
(a) Fees. Customer shall pay Service Provider the fees applicable to the Products and Services
provided to Customer by Service Provider (the “Fees”) as set forth in the applicable Order Form(s)
and any invoicing schedule(s) therein, without offset or deduction. If no invoicing is stated in the
Order Form, Service Provider will invoice Customer on a monthly basis. Customer shall make all
payments hereunder in US dollars within thirty (30) days of Customer’s receipt of an invoice. If
Customer fails to make any payment when due, without limiting Service Provider’s other rights
and remedies: (1) Service 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 by applicable law; (2) Customer shall reimburse Service Provider for all reasonable
costs incurred by Service Provider in collecting any late payments or interest, including attorneys’
fees, court costs and collection agency fees; and (3) if such failure to pay is not promptly
remedied, Service Provider may suspend Customer’s access to any portion or all of the Services
until such amounts are paid in full.
(b) Changes. Service Provider may change any portion of the Fees upon the renewal of the applicable
Order Form, such changes to take effect upon the commencement of such Order Form renewal.
(c) Taxes. Fees and other amounts payable by Customer under this Agreement are exclusive of any
taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any
other similar taxes, duties and charges of any kind imposed by federal, state or local government
or regulatory authority on any amounts payable by Customer hereunder, other than taxes
imposed on Service Provider’s income.
9. Confidentiality.
(a) Obligations. The Receiving Party shall keep in strict confidence and trust all Confidential
Information of the Disclosing Party. The Receiving Party shall: (1) not, without the prior written
consent of the Disclosing Party: (a) disclose the Disclosing Party’s Confidential Information to any
third party (other than to the Receiving Party’s employees, agents or representatives on a needto-know basis who are bound by obligations of non-disclosure and limited use at least as
stringent as those contained herein); or (b) use the Disclosing Party’s Confidential Information
except and solely for the performance of the Receiving Party’s obligations under this Agreement;
and (2) use the same care and discretion to avoid disclosure of the Disclosing Party’s Confidential
Information as it uses with its own confidential or proprietary information, and in no event with
less than reasonable care.
(b) Exceptions. As used in this Agreement, the term Confidential Information does not include
information that demonstrably: (1) is or becomes generally available to the public other than as
a result of a disclosure by the Receiving Party; (2) was possessed by the Receiving Party prior to
being furnished by the Disclosing Party, provided that the source of such information was not
known by the Receiving Party to be bound by a confidentiality agreement with, or other
obligations of confidentiality to, the Disclosing Party or any third party with respect to such
information; (3) is independently developed by the Receiving Party without breach of this
Agreement; or (4) becomes available to the Receiving Party from a source other than the
Disclosing Party that is permitted to disclose such information, provided that such source is not
bound by a confidentiality agreement with, or other obligation of confidentiality to, the
Disclosing Party or any third party with respect to such information.
(c) Required Disclosures. It shall not be a violation of Section 9(a) for the Receiving Party to disclose
the Disclosing Party’s Confidential Information in response to a subpoena or other legal process
served upon the Receiving Party or where applicable law requires the disclosure of such
information, provided that: (1) if not prohibited under applicable law, the Receiving Party, prior
to disclosing such information, gives reasonable prior written notice to the Disclosing Party
sufficient to permit the Disclosing Party to seek a protective order if it so chooses; and (2) in all
cases, the Receiving Party discloses only that information that is legally required to be disclosed.
For clarity, any of the Disclosing Party’s Confidential Information the Receiving Party discloses
pursuant to this Section 9(c) shall remain subject to the confidentiality requirements under this
Agreement for all other purposes.
(d) Remedies. The Receiving Party acknowledges and agrees that the Disclosing Party may be
irreparably harmed if the Disclosing Party’s Confidential Information were to be disclosed to third
parties, or if any use were to be made of such Confidential Information other than as permitted
under this Agreement and further agrees that the Disclosing Party shall have the right to seek
injunctive relief upon any violation or threatened violation of the terms of this Section 9, in
addition to all other rights and remedies available at law or in equity, without having to post a
bond or other security.
(e) Return/Destruction of Confidential Information. Except as otherwise set forth in this
Agreement, upon the expiration or termination of this Agreement for any reason, or upon the
Disclosing Party’s written request, the Receiving Party shall return to the Disclosing Party all
Confidential Information of the Disclosing Party, together with any copies thereof, or, if
requested by the Disclosing Party, destroy the same.
(f) Survival of Confidentiality Obligations. The Receiving Party’s obligation to maintain the
confidentiality of the Disclosing Party’s Confidential Information shall be in effect during the
Term and for a period of 5 years after the expiration or earlier termination of this Agreement.
Notwithstanding anything to the contrary in this Agreement, the obligations of confidentiality
with respect to a trade secret of the Disclosing Party shall continue in effect so long as such
Disclosing Party protects such Confidential Information as a trade secret under applicable trade
secret laws.
10. Term and Termination.
(a) Term. This Agreement shall become effective on the date of Customer’s acceptance hereof (the
“Effective Date”) and shall remain in effect during the term of the applicable Order Form(s)
unless otherwise terminated as permitted by this Agreement (the “Term”). In the event no Order
Form is in effect, either Party may terminate this Agreement for any or no reason by providing
written notice to the other Party.
(b) Order Forms. Notwithstanding anything to the contrary herein, any Order Form that does not
expressly set forth the term thereof shall be a period of twelve (12) months unless otherwise
terminated as permitted by the terms of this Agreement or the applicable Order Form.
(c) Termination. In addition to any other express termination right set forth in this Agreement:
(1) Service Provider may terminate, as applicable, any Service or any feature or function of a
particular Service upon sixty (60) days’ prior written notice if, as applicable, such Service or
any feature or function of such Service, is being generally discontinued, in which case Service
Provider will credit or refund any allocable prepaid fees on a pro rata basis; provided,
however, with respect to, as applicable, any Service or feature or function of a particular
Service that is provided by a third party or otherwise utilizes or relies on any third party
Intellectual Property, including, without limitation, Third Party Intellectual Property (a
“Third Party Feature”), Service Provider may terminate any such Third Party Feature
immediately upon notice to Customer in the event Service Provider’s right to make such
Third Party Feature available to Customer terminates or expires;
(2) Service Provider may terminate the applicable Order Form, effective on written notice to
Customer, if Customer: (1) fails to pay any amount when due hereunder and such failure
continues for more than thirty (30) days after Service Provider’s delivery of written notice
thereof; or (2) breaches any of Customer’s obligations under Sections 3(c), Error! Reference
source not found., 3(e), or 3(h) of this Agreement;
(3) either Party may terminate this Agreement and/or the applicable Order Form(s), effective
on written notice to the other Party, if the other Party materially breaches this Agreement
or the applicable Order Form, and such breach: (1) is incapable of cure; or (2) being capable
of cure, remains uncured for a period of thirty (30) days after the non-breaching Party
provides the breaching Party with written notice of such breach; and
(4) either Party may terminate this Agreement, effective immediately upon written notice to
the other Party, if the other Party: (1) becomes insolvent or is generally unable to pay, or
fails to pay, its debts as they become due; (2) 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; (3) makes or seeks to make a general assignment for the benefit of its creditors; or (4)
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.
(d) Effects of Termination. Without limiting any other effects of termination set forth in this
Agreement or the applicable Order Form(s), upon termination of an Agreement, Customer shall
immediately discontinue access to and use of and shall have no further right to access or use the
applicable Services. Termination will not affect Customer’s obligations to pay any and all fees
that have become due before such termination, nor shall termination an Agreement entitle
Customer to any refund. Further, termination shall not relieve Customer of any liabilities or
obligations arising before the date of such termination.
11. Representations, Warranties and Covenants; Disclaimers.
(a) Mutual Representations and Warranties of the Parties. Each Party represents and warrants
that: (1) it is duly organized, validly existing and in good standing under the laws of the applicable
jurisdiction (as applicable); (2) it is duly qualified to do business and is in good standing in every
jurisdiction in which qualification is required; (3) it has full right, power and authority to enter
into this Agreement and to perform its obligations hereunder; (4) the execution or acceptance
of this Agreement by the Party will not violate, conflict with, require consent under or result in
any breach or default under the provision of any contract or agreement to which the Party is a
party or to which any of its material assets are bound; and (5) this Agreement has been properly
executed and constitutes the legal, valid and binding obligation of the Party, enforceable against
the Party in accordance with its terms.
(b) Customer Representations, Warranties and Covenants. Customer represents, warrants and
covenants that: (1) Customer’s access to, use of and receipt of the Products and Services are at
Customer’s own risk and Service Provider shall not be liable for any damages arising, directly or
indirectly, from Customer’s or Users’ access to use of or receipt of the Products or Services,
including reliance on the information, analysis and other data available or otherwise provided by
Service Provider through or in connection with the Products or Services; and (2) Customer’s
access to, use and receipt, directly or indirectly, of the Products and Services shall comply with
all applicable laws and shall not, and Customer shall not attempt to take any action intended to,
infringe any third party’s Intellectual Property rights.
(c) Service Provider Representations, Warranties and Covenants. Service Provider warrants to
Customer that the Services will be performed in a good and workmanlike manner by trained
professionals and in accordance with generally accepted industry standards of care and
competence (the “Limited Services Warranty”). Customer’s sole and exclusive remedy (and
Service Provider’s entire liability) with respect to this Limited Services Warranty will be for Service
Provider to either, at its option: (1) re-perform or cause to be re-performed, at Service Provider’s
cost, the portion of the Services not in compliance with this Limited Services Warranty; or (2)
refund amounts paid by Customer related to that portion of the Services not in compliance;
provided, however, in each case of alleged noncompliance Customer notifies Service Provider of
the alleged noncompliance within ten (10) business days of its occurrence. THIS PARAGRAPH
SETS FORTH SERVICE PROVIDER’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR
ANY DEFECTIVE SERVICES COVERED BY THIS LIMITED SERVICES WARRANTY.
(d) Disclaimer of Warranties. Other than as expressly stated in this Agreement, and to the maximum
extent permitted by applicable laws, Customer acknowledges and agrees that:
(1) THE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS
AND WITH ALL FAULTS WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EITHER
EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OR
CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET
ENJOYMENT, QUIET POSSESSION, OR NON-INFRINGEMENT. NO ORAL OR WRITTEN
INFORMATION OR ADVICE GIVEN BY SERVICE PROVIDER, ITS AFFILIATES OR THIRD PARTIES
SHALL CREATE A WARRANTY OF ANY KIND OR IN ANY WAY INCREASE THE SCOPE OF ANY
WARRANTY EXPRESSLY GRANTED HEREIN.
(2) SERVICE PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PRODUCTS OR SERVICES,
OR ANY OF THE RESULTS FROM THE USE THEREOF, WILL MEET CUSTOMER’S, USERS’ OR
ANY THIRD PARTY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY
INTENDED RESULT, BE COMPATIBLE WITH ANY SOFTWARE, SYSTEMS OR OTHER SERVICES
OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR-FREE.
CUSTOMER ASSUMES THE ENTIRE RISK AS TO THE ACCESS TO, USE OF AND RECEIPT OF THE
PRODUCTS AND SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, UPDATES
OR OTHERWISE.
(3) SERVICE PROVIDER EXPRESSLY DISCLAIMS THAT THE PRODUCTS OR SERVICES WILL BE
WITHOUT ERROR OR INVULNERABLE TO VIRUSES, WORMS OR OTHER HARMFUL
SOFTWARE.
(4) SERVICE PROVIDER DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AGAINST
THE POSSIBILITY OF DELETION, MISDELIVERY OR FAILURE TO STORE COMMUNICATIONS,
PERSONALIZED SETTINGS OR OTHER DATA, INCLUDING ANY CUSTOMER DATA, COLLECTED,
STORED, TRANSMITTED OR OTHERWISE USED IN CONNECTION WITH CUSTOMER’S AND
USERS’ ACCESS TO, USE OF AND RECEIPT OF THE PRODUCTS AND SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES.
ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS MAY NOT APPLY TO CUSTOMER.
12. Indemnification.
(a) Indemnification by Service Provider.
(1) Service Provider shall indemnify, defend and hold Customer harmless from and against any
and all losses, settlements, claims, actions, suits, proceedings, investigations, judgments,
awards, damages and liabilities (collectively, “Losses”), and shall reimburse Customer for
any and all legal (including reasonable attorneys’ fees), accounting and other fees, costs and
expenses reasonably incurred in connection with investigating, mitigating or defending
against any such Loss (collectively, “Expenses”) where such Losses or Expenses are
sustained, incurred by or asserted against Customer and arise out of a third party claim that
the Products or Services infringe or misappropriate such third party’s Intellectual Property
rights (“Infringement Claim”).
(2) Service Provider’s indemnification obligations shall not apply to any Loss or Expense based
on: (1) Customer’s use of the Products or Services in any manner not expressly permitted
under this Agreement, the applicable Order Form(s) or the Documentation or otherwise
without Service Provider’s written permission; (2) Customer’s use or combination of the
Products or Services with non-Service Provider provided software, hardware, equipment or
technology except for uses or combinations that are approved by Service Provider in writing
or any combination made in connection with the customary, ordinary and intended use of
the Products or Services; (3) Customer’s access to, use of or receipt of the Products or
Services after receiving notice the Products or Services infringe a third party’s Intellectual
Property rights; or (4) any Loss or Expense for which Customer is contractually obligated to
indemnify, defend, or hold Service Provider harmless.
(3) If an Infringement Claim is made or appears possible, Customer agrees to permit Service
Provider, in Service Provider’s sole discretion, to: (1) modify or replace the Products or
Services, or component or part thereof, to make them non-infringing; or (2) obtain the right
for Customer to continue to access, use and receive the Products or Services. If Service
Provider determines that neither alternative is reasonably available, Service Provider may
terminate the applicable Order Form(s) with respect to the affected component or part,
effective immediately on written notice to Customer, and credit or refund any allocable
prepaid fees on a pro rata basis.
(4) This Section 12(a) sets forth Customer’s sole remedy and Service Provider’s sole liability and
obligation for any actual, threatened or alleged Infringement Claim. In no event will Service
Provider’s liability under this Section 12(a) exceed the amounts paid to Service Provider
under the applicable Order Form(s) in the twelve (12) months immediately preceding the
event giving rise to such Infringement Claim.
(b) Indemnification by Customer. Customer shall indemnify, hold harmless and defend Service
Provider and its Affiliates, and its and their officers, directors, employees, agents and attorneys
(“Service Provider Indemnified Parties”) from and against any and all Losses or Expenses that
are sustained or incurred by, or asserted against, any Service Provider Indemnified Party arising
out of: (1) Customer’s negligence or more culpable conduct; (2) Customer’s breach of any
representation, warranty or covenant made by Customer under this Agreement; (3) Customer’s
access to, use of or receipt of the Products or Services in a manner not authorized by this
Agreement; (4) Customer’s use of the Products or Services in combination with any software,
hardware, equipment or technology not provided by Service Provider or authorized by Service
Provider in writing, including in the Documentation, or any combination made in connection with
the customary, ordinary and intended use of the Products or Services, where such Loss or
Expense would not have arisen but for such combination; (5) modifications to the Products or
Services not made by Service Provider where such Loss or Expense would not have arisen but for
such modification; or (6) any claim that Customer Data or Customer’s access to, use of or receipt
of the Products or Services, infringes or constitutes a wrongful use of any third party’s Intellectual
Property rights, any right of publicity or privacy, or is libelous or defamatory where such claim
arises from Customer’s access to or use of the Products or Services in violation of this Agreement.
(c) Indemnification Procedure. In the event a Party is entitled to indemnification pursuant to these
Terms, the Party seeking indemnification shall provide the indemnifying Party with: (1) prompt
written notification of any such Losses or Expenses; (2) sole control and authority over the
defense or settlement thereof, provided that if any settlement requires any actions or admissions
by the indemnified Party, then the settlement will require the indemnified Party’s prior written
consent; and (3) all available information and reasonable assistance necessary to settle and/or
defend any such Losses or Expenses, at the indemnifying Party’s expense. Failure by the
indemnified Party to provide prompt notice of a Loss or Expense or to provide sole control and
authority or information and assistance shall not relieve the indemnifying Party of its
indemnification obligations under these Terms, except and solely to the extent the indemnifying
Party is materially prejudiced by such failure. The indemnified Party may have its own counsel
present at, and participate in, all proceedings or negotiations relating to a Loss or Expense, at the
indemnified Party’s own expense.
13. Limitation of Liability.
(a) General. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER OR IN
CONNECTION WITH THIS AGREEMENT FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT,
SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (EVEN IF PREVIOUSLY APPRISED OF THE
POSSIBILITY THEREOF), WHETHER THE BASIS OF THE LIABILITY IS BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTORY OR ANY OTHER LEGAL THEORY, OR
FOR ANY ERROR OR INTERRUPTION OF USE, INCREASED COSTS, DIMINUTION IN VALUE, LOST
BUSINESS, LOST PRODUCTION, LOST REVENUES, LOST PROFITS, LOSS OF GOODWILL OR
REPUTATION OR COST OF REPLACEMENT GOODS OR SERVICES. SUBJECT TO ANY OTHER
LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT, THE AMOUNT OF SERVICE
PROVIDER’S LIABILITY TO CUSTOMER UNDER ANY AND ALL CLAIMS FOR LOSS OR LIABILITY BASED
UPON, ARISING OUT OF, RESULTING FROM OR IN ANY WAY CONNECTED WITH SERVICE
PROVIDER’S PERFORMANCE UNDER OR BREACH OF THIS AGREEMENT SHALL IN NO CASE EXCEED
THE FEES ACTUALLY PAID BY CUSTOMER TO SERVICE PROVIDER UNDER THE APPLICABLE ORDER
FORM(S) IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACT GIVING RISE
TO THE LIABILITY.
(b) Exclusions. THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY WITH RESPECT TO ANY
OF THE FOLLOWING: (1) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS; (2)
CUSTOMER’S INDEMNIFICATION OBLIGATIONS; OR (3) ANY DAMAGES RESULTING FROM A
PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(c) Customer Actions/Inactions. FOR THE SAKE OF CLARITY, AND NOTWITHSTANDING ANYTHING
TO THE CONTRARY HEREIN, SERVICE PROVIDER SHALL NOT BE RESPONSIBLE OR LIABLE UNDER
THIS AGREEMENT FOR ANY COSTS, EXPENSES, DAMAGES OR LIABILITIES, AND CUSTOMER SHALL
BEAR ALL RESPONSIBILITY, WITH RESPECT TO ANY DAMAGES OR LIABILITIES CAUSED BY OR
ARISING FROM: (1) ANY VIOLATION OF ANY APPLICABLE LAW OR ANY THIRD PARTY CLAIM
ASSOCIATED WITH CUSTOMER DATA; (2) CUSTOMER’S ACTIONS OR INACTIONS (UNLESS AT THE
SPECIFIC DIRECTION OF SERVICE PROVIDER); OR (3) CUSTOMER’S FAILURE TO FULFILL ITS
RESPONSIBILITIES UNDER THIS AGREEMENT.
14. Subcontractors. Service Provider may subcontract the performance of any of its duties or obligations
under this Agreement to any person. Service Provider shall be responsible for the acts and omissions
of each subcontractor to the same extent as if such acts or omissions were those of Service Provider
and shall be responsible for all fees and expenses payable to any subcontractor.
15. Miscellaneous.
(a) Relationship of the Parties. It is expressly agreed that the Parties are independent contractors
and that the relationship between the Parties shall not constitute a partnership, joint venture, or
agency. Neither Party shall have the authority to make any statements, representations, or
commitments of any kind, or to take any action, which shall be binding on the other Party,
without the prior written consent of such other Party.
(b) No Third Party Beneficiaries. The rights, remedies, obligations and liabilities arising under or in
connection with this Agreement are solely intended to apply to the Parties and their respective
successors and assigns. Without limiting the generality of the foregoing, nothing in this
Agreement, whether express or implied: (1) is intended to confer any rights or remedies under
or in connection with this Agreement to Users or any other third party; (2) is intended to relieve
or discharge the obligation or liability of any third party to any Party; or (3) give any third party
any right of subrogation or action over or against any Party.
(c) Use of Customer Logo. Notwithstanding anything to the contrary in this Agreement, Customer
authorizes Service Provider to refer to Customer as a customer and include Customer’s name,
word mark and logo in Service Provider’s marketing materials, including on Service Provider’s
commercial websites. Customer also authorizes Service Provider to use Customer’s name, word
mark and logo in other promotional efforts with prior written consent from Customer.
(d) Amendment and Modification. Service Provider may propose amendments to this Agreement
at any time by providing notice of such proposed amendments in a manner permitted hereunder.
Such proposed amendments shall be deemed accepted and become part of this Agreement thirty
(30) days after the data such notice is given unless Customer informs Service Provider that
Customer does not accept such amendments. In the event Customer informs Service Provider
that Customer does not accept the proposed amendments, the proposed amendments will not
take effect and the existing terms will continue in full force and effect; provided, however, in the
event Customer rejects any such amendments, Service Provider shall have the right to terminate
this Agreement upon written notice to Customer. No other modification of this Agreement shall
be valid except by written amendment signed by Service Provider’s and Customer’s authorized
representatives.
(e) Waiver. 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. No waiver by any Party shall operate or
be construed as a waiver in respect of any failure, breach, or default not expressly identified by
such written waiver, whether of a similar or different character, and whether occurring before
or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or
privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
(f) 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.
(g) Assignment. Customer shall not assign any of Customer’s rights or delegate any of Customer’s
obligations under this Agreement, in each case whether voluntarily, involuntarily, by operation
of law or otherwise, without the prior written consent of Service Provider. Any purported
assignment or delegation in violation of this Section 15(g) will be null and void. No assignment or
delegation will relieve the assigning or delegating Party of any of its obligations hereunder arising
prior to such assignment or delegation. This Agreement is binding upon and inure to the benefit
of the Parties and their respective permitted successors and assigns.
(h) Force Majeure. In no event shall Service Provider be liable to Customer, or be deemed to have
breached this Agreement, for any failure or delay in performing Service Provider’s obligations
under this Agreement, if and to the extent such failure or delay is caused by any circumstances
beyond Service Provider’s reasonable control, including acts of God, flood, fire, earthquake,
explosion, epidemic or pandemic, war, terrorism, invasion, riot or other civil unrest, 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 or other similarly disruptive
events, whether or not such events are of a similar type or nature to the previously listed events
(each, a “Force Majeure Event”).
(i) Survival. The provisions of this Agreement which by their nature are intended to survive the
expiration or earlier termination of this Agreement shall continue as valid and enforceable
obligations of the Parties notwithstanding any such termination, cancellation, completion or
expiration. Without limiting the foregoing, the provisions regarding confidentiality, indemnity
and limitations of liability shall survive the expiration or earlier termination of this Agreement.
(j) Terms of Service. Customer agrees that, in addition to this Agreement and the applicable Order
Form(s), Customer’s access to and use of the SaaS Offerings are governed by the Service
Provider’s terms of use, terms of service, end user license agreement or click-through provisions
governing the use, as applicable, of the SaaS Offerings published, presented or otherwise made
available to Customer, Customer’s Personnel or Users, either directly or through the SaaS
Offerings (collectively, the “Terms of Service”). The Terms of Service are incorporated herein by
reference. In the event of a conflict between the Terms of Service and this Agreement, as
between Customer and Service Provider, this Agreement controls.
(k) Conflicts. In the event of any inconsistency between the statements made in this Agreement, an
Order Form, or any other documents incorporated herein by reference, the following order of
precedence governs: (1) this Agreement; (2) the applicable Order Form; and (3) any other
document incorporated herein by reference unless such document expressly provides that it is
modifying this Agreement and is signed by Service Providers and Customer’s authorized
representatives.
(l) Notices. All notices or other communications permitted or required to be given under this
Agreement shall be sent by email to the email address provided by the other Party for such
purpose and shall be deemed given when sent. Notices to Service Provider shall be sent to
[accounting@gettimescape.com]. Customer shall provide an email address for notices under this
Agreement. If Customer fails to provide an email address for notices, Service Provider may
provide notices under this Agreement by any means reasonably likely to provide Customer with
actual notice thereof.
(m) Electronic Communications. The communications between Service Provider and Customer use
electronic means, whether Customer accesses or uses the Services or communicates with Service
Provider via email, or whether Service Provider posts notices on the Services or communicates
with Customer via email. For contractual purposes, each Party consents to receive
communications from the other Party in electronic form. Further, Customer agrees that all
notices, disclosures and other communications that Service Provider provides to Customer
electronically satisfy any legal requirement that such communications would satisfy if they were
provided in a hardcopy writing. The foregoing does not affect either Party’s non-waivable rights.
(n) Governing Law. The Agreement(s) are governed by and construed in accordance with the laws
of the State of Wisconsin without giving effect to any choice 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
Wisconsin. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the
licenses granted hereunder will be instituted exclusively in and will take place in the United States
District Court for the Eastern District of Wisconsin or the courts of the State of Wisconsin covering
Washington County, Wisconsin, as appropriate. Each Party agrees to submit to the personal
jurisdiction of each of these courts for the purpose of litigating claims or disputes, hereby waives
any right to a jury trial, and agrees to remain bound by any and all limitations of lability and
damages included in this Agreement.
(o) Attorney’s Fees. In the event that any Party institutes any legal suit, action or proceeding against
the other Party arising out of or relating to this Agreement, the prevailing Party in the legal suit,
action or proceeding shall be entitled to receive, in addition to all other damages to which it may
be entitled, the costs incurred by such Party in conducting the suit, action or proceeding,
including reasonable attorney’s fees, expenses, and court costs.
(p) Entire Agreement. This Agreement constitutes the entire understanding and agreement
between the Parties with respect to the transactions contemplated herein and supersede any
and all prior or contemporaneous oral or written communications or agreements with respect to
the subject matter hereof. No usage of trade, or other regular practice or method of dealing
between the Parties or others, will be used to modify, interpret, supplement or alter in any
manner the express terms of this Agreement. If any document issued by Customer includes any
reference that is inconsistent with the provisions of this Agreement, such references shall be null
and void despite no objection being stated by Service Provider.

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