By signing the Order Form, having access to, receiving, and/or using the Hoops HR Enterprise cloud-based services described in the Order Form (“Service”) to be provided by Hoops HR, LLC (“Company”), you agree, on behalf of your company (collectively, “Customer”), to comply with these Terms and Conditions (“Terms”).
1. Definitions. Unless otherwise expressly stated herein, the terms defined in this Section, or parenthetically defined elsewhere, shall have the same meaning throughout these Terms and all Order Forms and SOWs (if any) hereto.
“Agreement” means these Terms together with all Order Forms and any SOWs incorporated herein by reference.
“Participant” means the registered or activated participant of an Experience created by Customer using the Service and/or Company Technology.
“Company Technology” means Company’s proprietary technology, white label talent management platform, leaderboards, scoring technology, Hoops library, and talent experience platform used by Company in the course of its performance under this Agreement which includes the API, the Service, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, trade secret, know-how and any related IP Rights throughout the world and also including any derivatives, improvements, translations, enhancements or extensions of Company Technology conceived, reduced to practice, or developed during the Service Term by or on behalf of Company.
“Customer Data” means all data or information transmitted, generated by or made visible through Customer’s use of the Company Technology, including without limitation, the content associated with the performance of, and the actions and postings by Users and Participants. Customer Data also includes email and names of Customer’s employees.
“Customer Technology and Content” means Customer’s proprietary technology, including Customer’s Internet operations design, content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation, trade secrets, copy, images, logos, trademarks and any related intellectual property rights throughout the world and also including any derivatives, improvements, enhancements or extensions of Customer Technology and Content conceived, reduced to practice, or developed, during the Service Term.
“Order Form” means the initial order form for the Service, and any subsequent order forms, agreed to between the parties in writing from time to time and made a part of these Terms (or to which these Terms are made a part of), specifying, among other things, the number of licenses, services, fees, the Service Term and other charges as agreed to between the parties.
“IP Rights” means any trade secrets, patents, trademarks, copyrights, and other intellectual property rights.
“Service Term” means the initial term and any renewal term(s) during which Company will provide the Service to Customer as specified in an Order Form.
“Users” means Customer’s employees and contractors who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by Company at Customer’s request).
2.1 Service. Company shall provide the applicable Service(s) to Customer during the Service Term set forth in these Terms and the applicable Order Form(s).
2.2 Professional Service. Customer may request Company to provide certain professional services that are ancillary to the Service, such as integration, customization, or managed services (“Professional Service”). In such event, the parties will enter into a Statement of Work (“SOW”) which refers to and incorporates the terms of these Terms and sets forth the scope and description of the Professional Service, deliverables, parties’ responsibilities, completion dates, fees and payment terms, and any other relevant information.
3. Use of the Service.
3.1 Company Responsibilities.
(a) Company shall ensure that the Service is available to Customer and performs substantially in accordance with the requirements of the applicable Order Form and the specifications for the Service, and will use commercially reasonable efforts to maintain the security of the Service. Company maintains and will continue to maintain commercially reasonable administrative, technical, and physical safeguards consistent with applicable laws, rules and regulations and best practices in the industry (which in no event will be less than the safeguards used to protect its own confidential information) to ensure the security and confidentiality of any Customer Data, and of any Confidential Information of Customer, and to protect against the unauthorized access to, or disclosure or use of, Customer Data or Confidential Information (collectively, the “Data Safeguards”). Company further agrees that it will monitor and periodically test its Data Safeguards, and further agrees to adjust its Data Safeguards in light of relevant circumstances or the results of any relevant testing or monitoring. If Company suspects or becomes aware of any loss, misuse or actual, threatened or attempted unauthorized access to, disclosure or use of, or any other breach of this Agreement relating to Customer Data, Confidential Information, or other information received or held by it or its agents or contractors in connection with the Service or performance of its obligations under this Agreement (“Data Breach”), Company shall immediately notify Customer in writing and shall fully cooperate with Customer at Company’s expense to prevent or stop such Data Breach. In the event of such Data Breach, Company shall fully and immediately comply with applicable laws, and shall take the appropriate steps to remedy such Data Breach. Company will defend, indemnify and hold Customer, its affiliates, and their respective officers, directors, employees and agents, harmless from and against any and all claims, suits, causes of action, liability, loss, costs and damages, including reasonable attorney fees, arising out of or relating to any third party claim arising from said Data Breach.
(b) Additionally, Company will provide telephone help desk or online support services during normal business hours (between the hours of 8:00 am and 5:00 pm CST on business days). Company may access Customer’s User accounts, including without limitation Customer Data, solely to respond to service or technical problems or at Customer’s request in connection with Customer support matters. As part of onboarding and set up, at the times requested by Customer, Company shall provide all necessary assistance to Customer in implementing the Service and training Customer on how to utilize the Service. Company also agrees to comply, and that the Service(s) will comply, with the Service Level Agreement (“SLA”) (SLA), linked hereto and incorporated herein by reference.
(c) Company will take commercially reasonable precautions, including the use of industry standard virus protection software and other customary procedures, to screen any software used by it in implementing and operating the Service, platform and websites, and to avoid introducing, and it will not knowingly insert, or knowingly allow to be inserted, any Disabling Devices into any software or platforms used by it in providing the Service hereunder. For purposes of this Agreement, “Disabling Device” means any malware or other computer code (i) designed to disrupt, disable, harm, or otherwise impede in any manner the operation of any software program or code, or any computer system or network (commonly referred to as “malware”, “spyware”, “viruses” or “worms”); (ii) that would disable or impair the operation thereof or of any software, computer system or network in any way based on the elapsing of a period of time or the advancement to a particular date or other numeral (referred to as “time bombs”, “time locks”, or “drop dead” devices); (iii) is designed to or could reasonably be used to permit Company or any third party to access any computer system or network (referred to as “trojans”, “traps”, “access codes” or “trap door” devices); or (iv) is designed to or could reasonably be used to permit Company or any third party to track, monitor or otherwise report the operation and use of any software program or any computer system or network by Customer, visitors or users of Company’ s payment service, platform or website(s), or any of Customer’s employees or customers (other than as specifically authorized in this Agreement).
3.2 Service Guidelines. Customer shall use the Service solely for its business, promotional, and marketing purposes as contemplated by these Terms and the applicable Order Form, and shall not use the Service to knowingly: (i) send spam or any other form of duplicative and unsolicited messages other than marketing and promotional messages to Customer’s clients and prospective clients as contemplated by the Service; (ii) harvest, collect, gather, or assemble information or data regarding other users of the Service without their consent ; (iii) transmit through or post on the Service unlawful, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors; (iv) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (v) attempt to gain unauthorized access to the Service, computer systems, or networks related to the Service; or (vi) harass or interfere with another user’s use of the Service. For the avoidance of any doubt, use for “business, promotional or marketing purposes” shall include the right for Users to transmit links to Customer content, to social media accounts of Users.
4. Fees & Payment.
4.1 Fees. The Service shall be provided for the fees specified in the applicable Order Form(s). All fees are quoted in United States Dollars. Fees are non-refundable except in the case of material breach of these Terms by Company or as otherwise specifically set forth in these Terms. The pricing set forth in an Order Form may not be modified during the Initial Term or any Renewal Term, but instead any proposed price increases must be provided in writing to Customer at least ninety (90) days prior to the end of the Initial or then-current Renewal Term.
4.2 Professional Service Fees for Enterprise Customers. Any work outside the scope of the Order Form performed by Company pursuant to Customer’s request and confirmed by a Statement of Work signed by Customer will be billed at $250/hour in 15 minute-increments, unless otherwise set forth in an executed Statement of Work.
4.3 Invoicing & Payment. Undisputed charges due shall be payable according to the terms and conditions in the applicable Order Form or SOW. All payments made under these Terms shall be in United States dollars.
4.4 Overdue Payments. Any undisputed payment not received from Customer by the due date may accrue, at Company’s discretion, late charges at the rate of one and a half percent (1.5%) of the outstanding balance per month, or at the maximum rate permitted by law, whichever is lower; provided Customer does not cure the alleged failure of payment within fifteen (15) days of receiving prior written notice thereof from Company.
4.5 Suspension of Service. If Customer’s account is sixty (60) days or more overdue for any undisputed fees, in addition to any of its other rights or remedies, Company reserves the right to suspend the Service provided to Customer until such amounts are paid in full, provided Customer does not pay such fees within fifteen (15) days of receiving prior written notice of such failure to pay.
4.6 Taxes. Company’s fees are exclusive of all local, state, federal, and foreign taxes, levies, or duties of any nature (“Taxes”), and Customer is responsible for payment of all Taxes, excluding only taxes based on Company’s income, and gross receipts. If Company has the legal obligation to pay or collect taxes for which Customer is responsible pursuant to this Section 4.5, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.7 Billing and Contact Information. Customer shall ensure that Customer’s license administrator maintains complete, accurate, and up-to-date Customer billing and contact information via the online Customer account section of the Service at all times.
5. Proprietary Rights.
5.1 Reservation of Rights. No rights are granted to Company and all rights, title and interest in all Customer Data, Customer Technology and Content and other Property of Customer (as defined in Section 5.6 below), including any and all IP Rights therein, are the sole property of Customer. Company agrees that it will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code, trade secrets or know-how in or underlying any software or technology of Customer. Customer agrees that it will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code, trade secrets, or know-how in or underlying the Company Technology. Except as provided in these Terms, no rights are granted to Customer and all rights, title and interest in all Company Technology, including all IP Rights, are the sole property of Company. All rights in and to the Company Technology not expressly granted to Customer in these Terms are reserved by Company and its suppliers.
5.2 Use of Data. As between Company and Customer, Customer owns all Customer Data, which includes all data or information input by or on behalf of Customer, User, or Participant or any end user to the Service or processed or stored through the Service, including as it may be transformed while being utilized or processed by the Service. Customer Data includes any data derived from data provided to Company by or on behalf of Customer, User, Participant, or any end user, and any data that is produced as a result of modifications to the data by the Service, in whole or in part. Customer Data shall also include any information that identifies, relates to, describes, or is capable of being associated with, a particular individual (“Personal Information”). Company is authorized to publish, share or otherwise distribute, to any party, analytics, statistics or other data related to Customer’s use of the API, web service, portal or proxy usage, provided that such data are aggregated with the data from other Company customers or users in a manner that does not allow Customer Data to be separated from the aggregate data and identified as relating to Customer, its employees or customers . Upon request by Customer at any time during the Service Term and upon termination or expiration of this Agreement, Company will make Customer Data available to Customer for download and shall otherwise return all Customer Data to Customer. Additionally, during the Service Term and as part of the Service, Company shall provide Customer the ability to obtain extracts Customer Data. Upon completion of such return to Customer of Customer Data, Company shall remove all Customer Data from any media and shall destroy or securely erase such media. No media on which Customer Data is stored may be used or re-used to store data of any other customer of Company or to deliver data to a third party, including another Company customer, unless securely erased.
5.3 License Grants.
(a) By Company. Company agrees that, if in the course of accessing and using the Service, it is necessary for Customer to use certain items of Company Technology, Customer is hereby granted a limited, worldwide, nonexclusive, and royalty-free license, solely during the Service Term, to use the Company Technology solely for purposes of accessing and using the Service. For the avoidance of doubt, the grant of rights specified above shall include the right for Users to use the Service for purposes of transmitting links to Customer content to social media accounts. Customer shall have no right to use the Company Technology for any purpose other than accessing and using the Service in accordance with these Terms. For clarification, Customer shall include Customer’s and its affiliates’ employees, business partners, agents, customer services representatives, contractors, and Users.
(b) By Customer. Customer agrees that if, in the course of performing the Service, it is necessary for Company to use Customer Technology and Content, then Company is hereby granted a limited, nonexclusive, internal, and royalty-free license, solely during the Service Term, to use the Customer Technology and Content solely for the purposes of delivering the Service to Customer. Company shall have no right to use the Customer Technology and Content for any purpose other than providing the Service.
(c) Restrictions. Except as provided for in these Terms or as the other party may expressly permit in advance, in writing, neither party shall modify or make derivative works of any part of the other party’s technology or other proprietary materials. In addition, Customer shall not (x) use the API for any illegal or unauthorized purposes; (y) access the API in order to build a similar or competitive product or service; or (z) use the Service in a manner that fails to comply or is inconsistent with any part of any API documentation that is provided to Customer in writing prior to Customer’s execution of these Terms and attached hereto (provided such documentation does not conflict with this Agreement) or these Terms. Each party shall preserve all of the other party’s copyright and other proprietary rights notices on the other party’s materials and all copies thereof.
5.4 Suggestions, Ideas and Feedback. Company shall have the right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer relating to the Service to the extent it does not constitute Customer Data, Customer Technology and Content or Confidential Information of Customer.
5.5 Attribution and Publicity. Customer will display the Company logo(s) in association with the Service and in any publications, marketing materials or broadcast presentations, as well as on each Web page within any Web site owned, operated or controlled by Customer, which markets, promotes, references, or relates to the Service. All such use and display will be in accordance with customer’s prior consent and Company’s Trademark Usage Guidelines communicated to Customer from time to time. With customer written consent, Company and its affiliates will be permitted to use Customer’s name and logo on their websites, in testimonial content, in press releases, and within marketing materials. All such use and display will be in accordance with Customer’s Trademark Usage Guidelines communicated to Company from time to time. With customer’s prior consent, Company and its affiliates may issue press releases relating to this Agreement.
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all information marked “confidential” or “proprietary” at the time of disclosure or that otherwise should be understood by a reasonable person to be confidential in nature, provided by a party or on its behalf (“Disclosing Party“) to the other party (“Receiving Party“), including without limitation these Terms (except to the extent needed to be disclosed by a party to its affiliates, advisory members, attorneys, accountants, or to enforce the terms hereof). Each party’s Confidential Information shall include any of its financial information, customer lists, personnel information, customer data, business and marketing plans, technology and technical information, product designs and information, developments, and business processes (whether in tangible or intangible form, in written or in machine readable form, or disclosed orally or visually). Regardless if marked as such, Company’s Confidential Information includes the Company Technology and the Services, and Customer’s Confidential Information includes the Customer Data and the Customer Technology and Content. Confidential Information shall not include any information that: (i) is or becomes generally known to the public, or is or becomes generally known in the industry, without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (ii) the Receiving Party can show was independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; (iii) is rightfully received by the Receiving Party from a third party who obtained such Confidential Information without any obligation of confidentiality; or (iv) was previously known by the Receiving Party free of any obligation to keep it confidential. Notwithstanding the above, any Personal Information to which Company has access in connection with the Agreement will be treated by Company as Confidential Information regardless of whether it falls within one of the exceptions in the preceding sentence.
6.2 Protection. Each party will, and will cause each of its personnel and agents to: (a) not disclose the other party’s Confidential Information to any third party, (b) not use the other party’s Confidential information for any purpose other than to perform its obligations or exercise its rights under these Terms, and (c) protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. Notwithstanding this Section, each party shall be able to disclose Confidential Information of the other party to its personnel, affiliates and agents (including, without limitation, Users) who have a need to know for the Receiving Party to perform its obligations or exercise its rights under this Agreement, provided such personnel or agents have been previously advised of the confidential nature of the information and have written obligations of confidentiality to the Receiving Party.
6.3 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall (where legally permitted) provide the Disclosing Party with prompt prior written notice of such compelled disclosure in order to permit the other party to seek judicial protection and/or confidential treatment of such information, and reasonable assistance (at Disclosing Party’s cost) if the Disclosing Party wishes to contest the disclosure. Further, the Receiving Party shall disclose only that Confidential Information that is required to be disclosed.
6.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 6, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek equitable relief, including an injunction to enjoin such acts or specific performance, it being specifically acknowledged by the parties that any such violation may give rise to irreparable injury to the other party such that monetary remedies are inadequate.
7. Warranties & Disclaimers.
7.1 Mutual Representations and Warranties. Each party represents and warrants that it has full right, power, and authority to agree to these Terms and to perform its obligations and duties under the Agreement, and that the performance of such obligations and duties does not and will not conflict with or result in a breach of any other agreement of such party or any judgment, order, or decree by which such party is bound. Each party shall use the Service only for lawful purposes and in accordance with these Terms. Each party will comply at all times with all applicable laws and regulations in its performance under these Terms and, in the event of a failure to comply by a party, the other party will have the right to suspend performance hereunder or terminate these Terms.
7.2 Customer Representations and Warranties. Customer represents and warrants that: (a) any Customer Data uploaded to the Service by Customer will not violate any applicable law or regulation, or cause a breach of any agreement with any third party (including without limitation the rules of any social network platform); (b) it will hold in confidence any access credentials (including usernames and passwords) provided to Customer by Company; and (c) it will have reasonable policies and practices in place to govern the use of the Service by Users. In the event of any breach of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Company will have the right to suspend immediately any of the Service if Company reasonably determines that such action is needed to prevent harm to Company or its business. If practicable, Company will provide written notice and opportunity to cure prior to any suspension of Service. Once cured, Company will use reasonable efforts promptly restore the Service.
7.3 Company Representations and Warranties. Company represents and warrants that it will not use Customer Data except as strictly required in the performance of its Services on behalf of Customer hereunder or disclose Customer Data to any third party. Company represents and warrants that (a) it and its Service (including, but not limited to, its FTC Disclosure and Market Compliance Platform) and all other Company Technology, will comply with applicable laws, rules and regulations and the terms and restrictions of all platforms where the Service will be used (including without limitation Facebook and Twitter) in providing the Service; (b) Company is authorized, or has the right, to license or otherwise grant the use of the Company Technology and any third party software contained or otherwise incorporated into the Service to Customer; and (c) the Service, Company Technology and Company’s logos and marks, and the use thereof by Customer, User, Participant, or any end user contemplated herein, does not and will not infringe, misappropriate, or violate any third party’s IP Rights or any other third party right, does not and will not entitle any third party to make a claim against Customer, User, Participant, or any end user for the unlawful use of confidential information, and will not create any liability for Customer.
7.4 Disclaimer of Warranties. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL SERVICES PROVIDED HEREUNDER ARE PROVIDED SOLELY ON AN “AS IS” BASIS. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THE AGREEMENT, COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. EXCEPT FOR ANY EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN, CUSTOMER MAKES NO WARRANTIES HEREUNDER, EXPRESS OR IMPLIED.
7.5 Disclaimer of Third Party Actions. Company does not and cannot control the flow of data to or from Service or within any portion of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt Customer’s connections to the Internet (or portions thereof). Although Company will use commercially reasonable efforts to remedy and avoid such events with respect to Customer’s use of the Service, Company cannot guarantee that such events will not occur.
8.1 Indemnification by Company. Subject to these Terms, Company shall defend, indemnify, and hold Customer (including its affiliates and their respective employees, officers, directors, and agents) harmless against any loss or damage, expense or liability (including without limitation reasonable attorney’s fees and court costs and related legal expenses whether incurred in defending against such claim or enforcing this Section) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party (i) alleging that the Service or other Company Technology infringes, misappropriates or otherwise violates any patent, copyright, trademark, or other intellectual property rights of a third party; (ii) Company’s breach of any of its representations or warranties contained in the Agreement; or (iii) Company’s breach of its Confidentiality obligations (Section 6) provided, that Customer (a) promptly gives written notice of the Claim to Company (provided, however, that failure to so notify shall relieve Company of its liability to Customer only to the extent that Company is materially prejudiced thereby); (b) gives Company sole control of the defense and settlement of the Claim (provided that Company may not settle or defend any Claim unless it unconditionally releases Customer of all liability, does not impose any financial obligation on Customer or require Customer to take or refrain from taking any action, and such defense or settlement does not materially adversely impact Customer); and (c) provides to Company, at Company’s sole cost, all reasonable assistance requested by Company in the defense and settlement of the Claim. Company shall have no obligations to Customer under this Section 8.1 to the extent such Claims arise from Customer’s or its User’s breach of these Terms or from the combination of the Service with any of Customer’s products, services, hardware or business processes (unless expressly authorized by Company or contemplated by this Agreement), if but for such breach or combination of the Service with Customer’s products, services, hardware or business processes the Claims would not have occurred. If any Claim is made or, in Company’s sole judgment, is likely to be made, Company may, at its discretion, either, at no additional cost to Customer: (i) procure for Customer the right to continue to use the Service, as such use is specifically provided for in these Terms, (ii) replace or modify the Service or Company Technology with a substantial equivalent, without material loss of quality or functionality, to avoid infringement, or (iii) only if neither of the above options are possible after commercially reasonable attempts by Company to complete them, terminate these Terms upon written notice to Customer, and refund any paid but unused fees to Customer (including, if in the initial term, the one-time set up fee prorated based on the time remaining in the initial term).
8.2 Indemnification by Customer. Subject to these Terms, Customer shall defend, indemnify, and hold Company harmless against any loss or damage (including without limitation reasonable attorney’s fees) incurred in connection with Claims made or brought against Company by a third party (i) arising out of the Customer Data or Customer Technology and Content; (ii) arising from Customer’s use of the Service in violation of Section 3.2 (other than the Claim against which Company is obligated to indemnify Customer as set forth in Section 8.1); or (iii) Customer’s breach of its representations and warranties under Section 7; provided, that Company (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Company of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance. Customer shall have no obligations to Company under this Section 8.2 to the extent such Claims arise from Company’s breach of these Terms or Customer’s use of Customer Data as authorized and contemplated by these Terms.
9. Limitation of Liability and Action.
9.1 Exclusive Waiver. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. EACH PARTY’S CUMULATIVE, TOTAL LIABILITY TO THE OTHER PARTY FOR ANY REASON (WHETHER BASED IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY) IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE SHALL IN NO EVENT EXCEED THE GREATER OF (A) $5,000 OR (B) FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CLAIM IS MADE. THE LIMITATIONS OF THIS SECTION 9.1 SHALL NOT APPLY WITH RESPECT TO DAMAGES RESULTING FROM COMPANY’S INDEMNIFICATION, DEFENSE, HOLD HARMLESS, SECURITY OR CONFIDENTIALITY OBLIGATIONS THAT ARISE FROM SECTIONS 3.1, 6 AND 8 HEREUNDER.
10. Term & Termination.
10.1 Term. These Terms commence on the date an Order Form is executed by both parties and shall continue until the expiration of the Service Term for all of the Services, unless sooner terminated pursuant to these Terms or the terms of the applicable Order Form. Except as otherwise specified in an Order Form, services will automatically renew for additional periods equal to the expiring service term or one year (whichever is shorter).
10.2 Termination for Cause. A party may terminate these Terms for cause: (i) upon thirty (30) days written notice of a material breach to the other party, provided such breach remains uncured at the expiration of the notice period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. In addition, if repeated outages, failures or service degradations occur with respect to the Service so as to impinge the commercial viability of the Service or unduly burden Customer’s business operations, or if any individual outage, failure or service degradation is not remedied within a commercially reasonable period of time, then Customer may terminate this Agreement upon written notice to Company and Company will provide Customer with a prorated refund of any prepaid but unused fees, notwithstanding whether the outage, failure or service degradation was the result of force majeure.
10.3 Effect of Termination. Upon the effective date of termination of this Agreement: (i) Company will immediately cease providing the Service to Customer; and (ii) any and all undisputed payment obligations of Customer for Service provided through the date of termination will become due. However, if termination is due to Company’s uncured breach, Customer shall have no obligation to pay Company any outstanding fees due under the Agreement. Within thirty (30) calendar days of termination or expiration of this Agreement, or at the Disclosing Party’s request, each party will return or destroy all Confidential Information of the other party (as the other party may elect) in its possession or control (including all copies thereof, in any media). In addition, each party shall purge its computer systems and database of all of the other party’s Confidential Information. Notwithstanding the foregoing return and destroy obligations, a party may retain copies of the other party’s Confidential Information in order to comply with any applicable legal or accounting record keeping requirements; and (b) shall not be required to return or destroy any electronic backups of the other party’s Confidential Information made in the normal course of business, provided the such party continues to comply with all of the confidentiality and security obligations in this Agreement with respect to such information and further provided that Company shall not be permitted to retain any Customer Data pursuant to this provision.
10.4 Surviving Provisions. The following provisions shall survive the termination or expiration of these Terms for any reason and shall remain in effect after any such termination or expiration: Sections 1, 3.1(a), 5.1, 5.4, 5.5, 6, 7, 8, 9, 10.3, 10.4, 11.3, 11.7, and 11.8.
11. General Provisions.
11.1 Relationship of the Parties. The parties’ relationship is strictly that of independent contractors and these Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Neither party has the power to bind the other, make any warranties or representations, or incur, assume or create obligations on the other’s behalf without the other’s prior written consent and each party agrees that it will not perform any act or omission to the contrary.
11.2 No Benefit to Others. The representations, warranties, covenants, and agreements contained in these Terms are for the sole benefit of the parties and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on any other persons; except that the provisions of the Agreement shall run to the benefit of, but create no obligations hereunder on the part of, Customer’s affiliates. Any reference to the benefit of Customer shall apply to the benefit of such affiliates.
11.3 Notices. All notices under these Terms shall be in writing and shall be delivered to the other party at the address set forth below (each party may change its address upon written notice to the other party of the new address) by means evidenced by a delivery receipt, or by email (subject to confirmation of actual receipt). Notice shall be deemed to have been given upon: (i) personal delivery; (ii) the first business day after delivery into the custody of an overnight courier service with a reliable system for tracking delivery for next day delivery; (iii) the second business day after mailing by certified mail, postage prepaid (return receipt requested); or (iv) the first business day after sending by confirmed facsimile or email. Notices to Company shall be addressed to the attention of its CEO. A copy of any notice provided to a party under this Section shall also be sent to such party’s General Counsel.
11.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under these Terms shall constitute a waiver of that right. The waiver by a party of compliance by the other party with any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement (whether or not similar), or a continuing waiver or a waiver of any subsequent breach by a party of a provision of this Agreement. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.5 Severability. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision shall be changed by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect, unless the modification or severance of any provision has a material adverse effect on a party, in which case such party may terminate these Terms by notice to the other party.
11.6 Assignment. Neither party may assign any of its rights or obligations under this Agreement, in whole or in part, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign these Terms, without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets; provided, however, that the assignee to which this Agreement is assigned must agree in writing to be bound by the terms and conditions hereof and the assigning party shall notify the other party of such assignment within a reasonable period of time. Furthermore, if these Terms provide for an unlimited use or enterprise license, an assignment by Customer may result in an increase in fees. Any attempt by a party to assign its rights or obligations under these Terms in breach of this Section 11.6 shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties hereto, their respective successors and permitted assigns.
11.7 Governing Law. These Terms shall be governed exclusively by, and construed exclusively in accordance with, the laws of the United States and the State of Texas, without regard to its conflict of laws provisions.
11.8 Venue. The federal and state courts located in Texas shall have jurisdiction to adjudicate any dispute arising out of or relating to these Terms. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise.
11.9 Export Control Laws. Each party shall comply with United States and foreign export control laws or regulations applicable to its performance under these Terms.
11.10 Entire Agreement and Construction. These Terms, any SOWs, and the Order Form(s) constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of these Terms. Except as contemplated to the contrary herein with respect to Order Forms, no modification, amendment, or waiver of any provision of these Terms shall be effective unless in writing and signed by both parties. In the event of any conflict between the provisions in these Terms, any SOW, and the Order Form(s), the terms of the Order Form will take first precedence, then these Terms will take second precedence, and any SOW will take third precedence. In all other instances, these Terms shall govern and control. Notwithstanding any language to the contrary therein, no terms or conditions stated in a purchase order issued by Customer or in any other Customer order documentation shall be incorporated into or form any part of these Terms. Similarly, it is expressly agreed that notwithstanding any language to the contrary therein, no online terms or conditions now or hereafter published by Company (e.g., on its website) shall apply to Customer, even if Customer is required to acknowledge its acceptance of, or agreement to, any such terms or conditions in connection with its access or use of the Service.
11.11 Counterparts. These Terms may be executed in counterparts, each of which will be deemed an original, but all of which taken together shall form one and the same legal instrument.
11.12 Force Majeure. Neither party will be deemed in breach of these Terms if the failure to perform is caused by circumstances beyond its reasonable control, including without limitation acts of God, acts of government, flood, fire, earthquake, civil unrest, acts of terror, strikes or labor problems, computer, internet, or telecommunications failures, delays or network intrusions, or denial of service attacks, but only if (a) such party gives prompt written notice to the other party of the force majeure event, and (b) such failure or delay results notwithstanding the exercise of reasonable care and diligence to avoid or mitigate the same in anticipation of or in response to such causes. The time for performance will be extended for a period equal to the duration of the force majeure event