“Customer Data” means any and all data owned by Customer or its End Users and uploaded or imported into the Platform by or on behalf of Customer (including by End Users).
“End Users” means Customer’s individual constituents who use the Platform in accordance with this Agreement and the Usage Limitations.
“Fees” means, individually and collectively, the fees and expenses set forth in each Order and SOW hereunder.
“Intellectual Property Rights” means all forms of proprietary rights, titles, interests, and ownership relating to patents, copyrights, trademarks, trade dresses, trade secrets, know-how, mask works, droit moral (moral rights), and all similar rights of every type that may exist now or in the future in any jurisdiction, including without limitation all applications and registrations therefore and rights to apply for any of the foregoing.
“Order” means a document which is executed by authorized representatives of each party and which may set forth applicable Usage Limitations and the Fees due to Company.
“Platform” means Company’s proprietary behavioral science and data analytics platform which provides companies’ engagement programs with insight into constituent personality preferences hosted and made available by Company as a software-as-a-service. References to the “Platform” in this Agreement shall be deemed to refer to the specific version of the Platform, including all features and functionality created under SOW(s), subscribed to by Customer pursuant to an Order.
“Services” means any services related to Customer’s use of the Platform which Company may agree to perform for Customer hereunder as more particularly specified on a Statement of Work, including (by way of example) Platform configuration and integration services, constituent Kind profile reports, enterprise reports, employee reports, development and provision of custom features or functionality and user interface customizations.
“Statement of Work” or “SOW” means each written agreement for Services to be performed subject to this Agreement which is executed by authorized representatives of each party.
“Usage Limitations” means the Customer Data storage limits, monthly bandwidth caps and other limits and restrictions applicable to Customer’s use of the Platform, as set forth in an Order.
"Person" means an individual, corporation, nonprofit organization, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
Subject to all terms and conditions of this Agreement, following completion of any implementation Services specified in the SOW, Customer shall have the right to access and use the Platform during the Term solely in the manner enabled by Company and in accordance with all applicable Usage Limitations and documentation. Company reserves the right to modify and update the features and functionality of the Platform from time to time. Except for as expressly set forth herein, Customer is solely responsible for purchasing and configuring all hardware, software and services that may be necessary or desirable for Customer’s use of the Platform. Customer agrees to use the Platform in compliance with all applicable laws, rules and regulations, and Customer agrees that it is solely responsible for its compliance with all such applicable laws, rules, and regulations.
Customer acknowledges that use of the Platform is provided hereunder solely for Customer’s benefit, and agrees not to use the Platform for the benefit of any other third parties. Customer agrees not to, not to attempt to, nor allow any third party to: (i) copy, distribute, rent, lease, lend, sublicense or transfer the Platform, make the Platform available to any third party or use the Platform on a service bureau or time sharing basis, (ii) decompile, reverse engineer, or disassemble the Platform or otherwise attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Platform, (iii) create derivative works based on the Platform; (iv) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Platform or during the use and operation thereof; (v) publicly disseminate performance information or analysis (including benchmarks) relating to the Platform; (vi) utilize any software or technology designed to circumvent any license keys or copy protection used in connection with the Platform; (vii) scrape, export, store, or otherwise retain any copies of raw data (including Customer Data) which Customer may access through Platform; (viii) use the Platform to develop a competitive product offering; or (ix) use the Platform in a manner which violates or infringes any laws, rules, regulations, third party Intellectual Property Rights, or third party privacy rights. Customer may not use any automated means, including agents, robots, scripts, or spiders, to access or manage the Platform, except solely to the extent as may be specifically enabled and authorized by the Company in writing.
Company may terminate Customer’s access to or use of the Platform and/or terminate this Agreement at any time if: (i) in the sole discretion of Company, such action is necessary to prevent material errors or harm to any system or network, or to limit Company’s liability; or (ii) Customer or any End User attempts to access or use the Platform in an unauthorized manner, including without limitation any attempt to gain access to data or information relating to other Company customers or any use that infringes third party Intellectual Property Rights or violates any applicable law, rule or regulation.
Customer is solely responsible for the activities of any and all Persons accessing and using the Platform using any Platform user name and password or account credentials, as applicable (“Credentials”). Customer shall, and shall instruct its End Users to, use all reasonable means to secure Credentials, and shall promptly notify Company if it suspects that any Credentials have been compromised. Each Platform account may only be accessed and used by the Customer’s End Users in accordance with the Usage Limitations. Customer acknowledges that use of a Platform account by any Person other than permitted End Users shall constitute a material breach of this Agreement.
The Platform may include features or functionality that interoperate with online services operated by third parties (such services, “Third Party Services”), pursuant to agreements between Company and the operators of such Third Party Services (such agreements, “Third Party Agreements” and such operators, “Operators”) or through application programming interfaces or other means of interoperability made generally available by the Operators (“Third Party APIs”) which Company does not control. Third Party Agreements and Third Party APIs (and the policies, terms and rules applicable to Third Party APIs) may be modified, suspended or terminated at any time. Any such modification, suspension or termination shall not affect any payment obligations under this Agreement and Company shall have no liability with respect thereto. Without limiting the foregoing, Customer is responsible for ensuring that Customer’s use of the Platform in connection with Third Party Services complies with all policies, terms and rules applicable thereto.
Company shall be responsible for operating the servers that make the Platform available, and shall use commercially reasonable efforts to maintain availability of the Platform of at least 99.5%, calculated monthly on a per-minute basis. The Platform will be considered unavailable only if it is substantially inaccessible. Customer acknowledges and agrees that the Platform may be unavailable (in whole or in part) from time to time due to: (i) equipment, software or service malfunctions; (ii) maintenance, update or upgrade procedures or repairs; or (iii) causes beyond the control of Company, including, without limitation, interruption or failure of telecommunication or digital transmission links, malicious attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures, and that Company shall not be liable for any unavailability caused by any of the foregoing nor will such unavailability be counted against the uptime percentage, above.
Provided that Customer timely makes all payments due under this Agreement, Company shall provide reasonable technical support to Customer regarding use of the Platform. Such technical support shall consist of answering questions from End Users regarding use of the Platform and using commercially reasonable efforts to repair any errors within the Platform during Company’s normal business hours. Customer may submit requests for technical support through e-mail. Only the Customer’s designated administrative contact(s) (as named in the initial Order) (each an “Administrative Contact”) may request technical support. For clarity and avoidance of doubt, Company will not accept support requests from an End User if that End User is not also an Administrative Contact. Company will use commercially reasonable efforts to respond to each case within forty eight (48) hours and will use commercially reasonable efforts to promptly resolve each case. Actual resolution time will depend on the nature of the case and the resolution. A resolution may consist of a fix, workaround or other solution in Company’s reasonable determination. Technical support does not include providing assistance or advice regarding anything other than use of (or errors within) the Platform.
The parties may execute additional Orders to, for example, change the version of the Platform applicable hereunder and change Usage Limitations. Such additional Orders shall be subject to applicable Fees based on Company’s then-current price sheet. Customer acknowledges that such modifications may require a lead time of fourteen (14) days for Company to implement. No Order shall be valid unless mutually executed by authorized representatives of the parties.
Customer acknowledges and agrees that Company will not, and has no obligation to, monitor or edit the Customer Data, and that as between the parties Customer is solely responsible for the Customer Data, including without limitation, its format, integrity, accuracy, maintenance, and its compliance with all applicable laws, rules, and regulations. Company reserves the right to remove any Customer Data which Company becomes aware may violate the terms of this Agreement, any applicable law, rule, or regulation, or infringe, misappropriate or violate any third party Intellectual Property Right or privacy right.
As between the parties, Customer shall own all right, title and interest in and to Customer Data. Customer hereby grants Company a non-exclusive, worldwide license to use, reproduce, modify, create derivative works of, display, perform and transmit the Customer Data in connection with: (i) Customer’s use of the Platform and for otherwise performing its obligations hereunder; (ii) improving the Platform and Company’s products and services; (iii) in an aggregated manner in connection with industry reports and other Company business uses, provided that Company may use Customer’s name but shall not use any End User’s personally identifiable information in connection therewith and (iii) as may be required by law or legal process. Except as expressly provided for in the foregoing sentence, Company will not, share or transmit any Customer Data in any form or format to any third party without the prior written consent of Customer, except that Company may provide Customer Data to its third party contractors and service providers for use on behalf of Company as contemplated hereunder. Company will use commercially reasonable security measures to prevent unauthorized access to the Customer Data, however, Customer acknowledges that: (i) no security measures are 100% effective and (ii) the Platform uses the Internet for data transfer, and Internet communications have inherent insecurities.
As between the parties, Company shall own all right, title and interest in and to all data generated by the Platform or collected by Company in relating to the operation of the Platform and Customer’s use thereof (“Usage Data”). Usage Data may include, by way of example and not limitation, when and how often End Users use the Platform and which Platform features are used the most often. Company will not disclose Usage Data to any third party in a manner that identifies Customer or any End User without Customer’s consent other than (i) disclosure to the Company’s third party contractors and service providers for use on Company’s behalf; or (ii) as may be required by law or legal process.
To the extent specified on an SOW, Company shall provide Customer with the applicable reports (“Reports”) based upon the Customer Data. Customer acknowledges and agrees that the Reports constitute the property of Company and no right, title or interest in or to any such elements or compilation or derivatives therefrom, or of any Intellectual Property Rights embodied therein, are transferred or conveyed hereby. Company’s use of the Reports shall be subject to the limitations on Company’s use of Customer Data set forth in Section 3.4. Subject to Company’s foregoing rights in the Reports, Company hereby grants Customer a non-exclusive, worldwide license to use, reproduce, modify, create derivative works of, display, perform and transmit the Reports. Customer agrees that it shall not remove any markings or Company trademarks (or other similar designations of origin) on the Reports or otherwise obscure or alter the Reports, and shall only use the Reports in compliance with the foregoing license and all applicable laws, rules and regulations.
The initial SOW covering the Services are reflected in the Summery.ai Pricing page. The Services shall be deemed complete on the earlier of: (i) all of the milestones being met; or (ii) Customer notifying Company that the Services are complete.
The parties may agree from time to time that Company shall perform additional Services for Customer pursuant to an SOW. Each SOW shall identify the following: (i) the nature of the Services; (ii) the deliverables, if any, to be provided by Company to Customer in connection with such Services and the acceptance criteria and process therefor; (iii) a time schedule for estimated performance of Services by Company; and (iv) labor rates and/or amount of payment for Services, including any expenses which are to be reimbursed. Unless otherwise agreed in writing by both parties, the labor rates delineated in each SOW shall apply to that SOW. No changes to an SOW will be effective unless and until memorialized in a written change order or additional SOW signed by both parties. Except to the extent otherwise provided for in an SOW, any deliverables under an SOW that are Platform features or functionality shall, upon payment therefor by Customer under such SOW, constitute part of the Platform made available to Customer hereunder. Customer’s rights with respect to any tangible deliverables that are provided to Customer shall be as set forth in the applicable SOW. To the extent an SOW does not provide for such rights, Customer shall be deemed to have been granted, upon payment of all fees due under the applicable SOW, a limited, non-exclusive license during the Term to internally use such deliverable solely in direct connection with its authorized use of the Platform. For the avoidance of doubt, any Platform features or functionality do not constitute tangible deliverables.
Customer acknowledges that the Services will be performed on the basis of Company using its reasonable efforts and judgment based on the information available to Company. To the extent Company utilizes subcontractors in the performance of the Services, it shall remain liable for their performance hereunder.
Customer shall provide, maintain and make available to Company, at Customer’s expense and in a timely manner, the following resources, and such other additional resources as are specified in the applicable SOW or as Company may from time to time reasonably request in connection with Company’s performance of the Services: (i) qualified Customer personnel or representatives who will be designated by Customer to consult with Company on a regular basis in connection with the Services and provide Company with documentation or other information necessary to perform the Services; (ii) access to Customer’s premises and appropriate systems and/or workspace for Company personnel at Customer’s premises if necessary for performance of portions of the Services to be performed at Customer’s premises; and (iii) access to Customer Data (collectively, the “Customer Resources”).
Company is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement. In the event of any such delay or failure, Company may, by written notice to Customer, extend all or any subsequent due dates set forth in the applicable SOW that Company deems reasonably necessary. The foregoing is in addition to, and not in lieu of, all other remedies Company may have for any such failure or delay by Customer.
Customer shall pay Company the Fees as set forth in each Order and SOW. All recurring Fees under an Order shall be due and payable in advance of the applicable billing period. All other Fees are due and payable in arrears except to the extent otherwise set forth in an Order or SOW.
Unless otherwise stated by the parties in an Order or SOW, Company shall invoice Customer for Fees on a monthly basis. Customer agrees to pay each invoice within thirty (30) days of the invoice date, provided that recurring monthly fees under an Order must be received by Company prior to the first day of the applicable month regardless of the invoice date. All payments will be made in U.S. dollars. Any amounts due Company under this Agreement not received by the date due will be subject to a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less. Customer shall pay the amounts due under each invoice without deducting any taxes that may be applicable to such payments. Customer is responsible for paying any and all withholding, sales, value added or other taxes, duties or charges applicable to this Agreement, other than taxes based on Company’s income.
As between the parties, Company owns all right, title and interest (including all Intellectual Property Rights) in and to the Platform, Reports and any software, technology, materials and information (i) owned by Company prior to the Effective Date or (ii) created, authored, developed, made, conceived, or reduced to practice by Company after the Effective Date (collectively, the “Company Materials”). Except for the license granted under Section 3.4, nothing herein shall be construed to transfer any rights, title or ownership of the Company Materials or any Company software, technology, materials, information or Intellectual Property Rights to Customer. Customer is not required to provide any ideas, feedback or suggestions regarding any of Company’s products or services (“Feedback”) to Company. To the extent Customer does provide any Feedback to Company, Customer agrees to assign and hereby does assign all right, title and interest in and to such Feedback to Company and acknowledges that Company may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other consideration to Customer.
As between the parties, Customer owns all right, title and interest (including all Intellectual Property Rights) in and to the Customer Data, and any software, technology, materials and information owned by Customer prior to the Effective Date or created, authored, developed, made, conceived or reduced to practice solely by Customer and without Company’s assistance after the Effective Date (collectively, “Customer Materials”). Nothing herein shall be construed to transfer any rights, title or ownership of the Customer Materials or Intellectual Property Rights therein to Company.
This Agreement shall be effective as of the Effective Date, and shall continue in full force and effect until the termination of all Orders and SOWs (the “Term”).
(a) Either party may terminate an individual Order or SOW in accordance with the termination provisions (if any) described in the applicable Order or SOW.
(b) Either party may terminate this Agreement or any applicable SOW or Order effective immediately if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within thirty (30) days (or ten (10) days in the event of breach of payment obligations) after receiving written notice of the breach from the non-breaching party.
(c) Either party may terminate this Agreement immediately upon written notice at any time if: (i) the other party files a petition for bankruptcy or is adjudicated as bankrupt; (ii) a petition in bankruptcy is filed against the other party and such petition is not removed or resolved within sixty (60) calendar days; (iii) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law; (iv) the other party discontinues its business; (v) a receiver is appointed over all or substantially all of the other party’s assets or business; or (vi) the other party is dissolved or liquidated.
All rights and obligations of the parties hereunder shall terminate upon expiration or termination of this Agreement, provided that Sections 1, 2.2, 2.3, 2.5, 3, 5 (with respect to accrued but unpaid Fees), 6, 7.3, 9, 10, 11, 12 and 13 shall survive expiration or termination of this Agreement. Company may retain copies of the Customer Data and Reports for the uses specified in Section 3.2 and 3.4. In addition, upon any termination, Customer will pay Company for all conforming Services rendered by Company and deliverables accepted by Customer prior to the effective date of such termination, and will reimburse Company for any out-of-pocket third party expenses incurred by Company in the performance of any SOW which expenses cannot be mitigated by Company through commercially reasonable efforts.
Each party represents and warrants to the other party that: (i) it has the full power and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid and binding obligation when executed and delivered.
Customer represents and warrants to Company that: (i) it has all right, title, and interest in and to the Customer Data necessary for its use in connection with the Platform; (ii) it will not use the Platform or Reports, any outputs or insights generated from use thereof, or any deliverables resulting from the Services in a manner or in connection with any activity that would violate any law, rule or regulation; (iii) it has obtained all necessary consents and permissions required for its collection of the Customer Data and use of the Customer Data as contemplated under this Agreement; and (v) the Customer Data (including the storage, reproduction, transfer, and use thereof as contemplated hereunder) does not and will not (x) infringe upon, violate, or misappropriate the Intellectual Property Rights of any third party, (y) slander, defame, or libel any person, or (z) violate any applicable laws, rules, or regulations.
Company represents and warrants to Customer that it shall perform the Services in a professional and workmanlike manner. Customer’s sole remedy, and Company’s exclusive liability, with respect to any breach of the representation and warranty set forth in this Section 8.3 is, at Company’s election, (i) Company’s re-performance of the non-compliant Services such that they are compliant or (ii) termination of the applicable SOW to the extent it relates to such non-compliant Services and refund of a proportionate amount of the Fees paid under such SOW to the extent such amount relates to such non-compliant Services.
Customer agrees to, at its own expense, indemnify, hold harmless, defend and/or settle any claim, action or suit brought by a third party (including a Customer’s client) against Company or its directors, officers or constituents (“Company Indemnitees”) arising out of or relating to Customer’s gross negligence, willful misconduct, breach of representations and warranties set forth in Section 8.2, or alleging that Customer Data or Customer’s use of the Platform or Reports in breach of this Agreement, infringes or misappropriates such third party’s Intellectual Property Rights or violates applicable laws, rules, or regulations (a “Claim”).
Company agrees to, at its own expense, defend and/or settle any claim, action or suit brought by a third party against Customer or its Affiliates, or their directors, officers and constituents (“Customer Indemnitees”), alleging that the Company technology underlying the Platform or the Reports infringes such third party’s Intellectual Property Rights, except to the extent such claim, action or suit arises from or relates to Customer Data (an “IP Claim”), Company will pay those amounts finally awarded by a court of competent jurisdiction against the Customer Indemnitees or (subject to the terms of Section 9.3) payable pursuant to a settlement agreement with respect to the IP Claim. If Company, in its sole discretion, believes an IP Claim or an adverse judgment in connection with an IP Claim is likely, then Company may, at its option, (a) obtain a license from such third party claimant that allows Customer to continue the use of the Platform or Reports, (b) modify the Platform or Reports so as to be non-infringing, or (c) if neither (a) nor (b) is available to Company on commercially reasonable terms, terminate this Agreement upon written notice to Customer. Company will have no obligation or liability relating to any IP Claim that: (x) is based on modification or customization of the Platform or Reports at the direction of Customer or any third party; (y) is based on the combination or use of the Platform or Reports (or any component of either) with any software, hardware, system, method, device or materials not provided or required by Company; or (z) results from Customer’s use of the Platform or Reports in a manner that is inconsistent with its intended use or is in breach of this Agreement. This Section 9.2 sets forth the entire liability of Company and the sole and exclusive remedy of Customer in the event of any claim that the Platform or Reports infringes any third party Intellectual Property Right.
Each party shall promptly notify the other party in writing of any action for which such party believes it is entitled to be indemnified pursuant to Section 9.1 or Section 9.2, as the case may be. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Claim or IP Claim and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 9.3 will not relieve the Indemnitor of its obligations under this Section 9 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor may settle a Claim or IP Claim so long as any settlement (i) does not, without Indemnitee’s prior written approval, (x) involve the admission of any wrongdoing by any Indemnitee, (y) restrict any Indemnitee’s future actions, or (z) require any Indemnitee to take any action, including the payment of money, and (ii) includes a full release of the Indemnitees.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND COMPANY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. COMPANY AND ITS SUPPLIERS, LICENSORS, PARTNERS AND SERVICE PROVIDERS DO NOT WARRANT THAT THE FUNCTIONALITY PROVIDED BY THE PLATFORM WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. COMPANY DOES NOT WARRANT THE RESULTS OF USE OF THE PLATFORM OR REPORTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER ACKNOWLEDGES THAT NOTHING IN THIS AGREEMENT NOR ANY COMMUNICATION OF ANY KIND BY ANY COMPANY PERSONNEL SHALL BE CONSTRUED TO BE A REPRESENTATION OR WARRANTY THAT THE RESULTS PROVIDED BY THE PLATFORM OR IN THE REPORTS SHALL BE ACCURATE.
Each party shall keep confidential the terms of this Agreement, all information and materials provided or made available by the other party, whether or not marked as confidential or proprietary, (for orally disclosed information) that the receiving party knows or should have reasonably known is confidential or proprietary at the time of disclosure (“Confidential Information”). For clarity, the features, functionality and content of the Platform (including all data and information made available by the Company via the Platform), any Platform documentation, the Fees charged hereunder and any information regarding planned modifications or updates to the Platform or other Company products and services constitutes Confidential Information of Company. The Confidential Information of Customer includes the Customer Data. Each party shall keep and instruct its constituents and agents, and in the case of Company, its third party contractors, to keep Confidential Information confidential by using at least the same care and discretion as used with that party’s own confidential information, but in no case less than a prudent and reasonable standard of care. Neither party shall use Confidential Information other than for purposes of performing its obligations hereunder or as authorized by the disclosing party. Information or materials shall not constitute Confidential Information if it is: (i) in the public domain through no fault of the receiving party, (ii) known to the receiving party prior to the time of disclosure by the disclosing party, (iii) lawfully and rightfully disclosed to the receiving party by a third party on a non-confidential basis, (iv) developed by the receiving party without reference to Confidential Information or (v) required to be disclosed by law or legal process, provided that the receiving party promptly provide notice to the disclosing party of such request or requirement so the disclosing party may seek appropriate protective orders. If any party, its constituents or agents breaches or threatens to breach the obligations of this Section 11, the affected party may seek injunctive relief from a court of competent jurisdiction, in addition to its other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.
EXCEPT WITH RESPECT TO SECTION 9 OR EITHER PARTY’S BREACH OF SECTION 11, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. EXCEPT WITH RESPECT TO SECTION 9 OR EITHER PARTY’S BREACH OF SECTION 11, IN NO EVENT WILL EITHER PARTY’S LIABILITY AND DAMAGES UNDER THIS AGREEMENT EXCEED THE SUM OF THE TOTAL FEES PAID TO COMPANY UNDER THIS AGREEMENT DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. THE PARTIES AGREE THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY SET FORTH IN THIS SECTION 12 WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND REGARDLESS OF THE THEORY OF LIABILITY.
INFORMATION PROVIDED BY THE PLATFORM AND IN THE REPORTS ARE PROVIDED FOR INFORMATIONAL PURPOSES. CUSTOMER IS SOLELY RESPONSIBLE FOR ALL DECISIONS REGARDING THE CONDUCT OF CUSTOMER’S BUSINESS, AND UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE FOR SUCH DECISIONS OR THE CONSEQUENCES OF SUCH DECISIONS, REGARDLESS OF THE EXTENT TO WHICH SUCH DECISIONS MAY BE MADE IN RELIANCE ON PREDICTIONS AND OTHER INFORMATION PROVIDED BY THE PLATFORM OR REPORTS.
The parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. No party shall have any right to obligate or bind any other party in any manner whatsoever.
This Agreement is non-exclusive and does not restrict or prevent Company in any way from (a) entering into similar relationships with third parties and (b) providing similar or identical materials, information, data (excluding Customer Data), products, services, or technologies to other parties.
Except as expressly set forth in this Agreement, nothing herein shall give, or is intended to give, any rights of any kind to any third parties.
Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party, except that Company may assign its rights and obligations under this Agreement without the consent of Customer in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to this Agreement or similar transaction. This Agreement inures to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.
Except for payment obligations, neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
All notices under the terms of this Agreement shall be given in writing and sent by registered or certified mail, with postage prepaid and return receipt requested, to the addresses noted in the signature section of this Agreement. All notices shall be presumed to have been given three business days following deposit in the mail as set forth in the foregoing.
An amendment of this Agreement shall be binding upon the parties so long as it is in writing and executed by both parties. No regular practice or method of dealing between the parties shall modify, interpret, supplement or alter in any manner the express terms of this Agreement.
In the event of a conflict between the terms of this Agreement and any Order or SOW, the terms of this Agreement shall control unless the parties explicitly state otherwise in an Order or SOW, and in such instances the terms of such Order or SOW will control only as to the subject matter discussed and only for that Order or SOW. This Agreement shall be fairly interpreted and construed in accordance with its terms and without strict interpretation or construction in favor of or against either party. Each party has had the opportunity to consult with counsel in the negotiation of this Agreement. Section headings are for reference purposes only, and should not be used in the interpretation hereof.
If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect. This Agreement may be signed in counterparts. Each of them is an original, and all of them constitute one agreement.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without reference to conflicts of laws principles. The parties agree that the state and federal courts in California will have exclusive jurisdiction and venue under this Agreement, and the parties hereby agree to submit to such jurisdiction exclusively.
Notwithstanding anything to the contrary, Company is permitted to use Customer’s name and logo for the purpose of listing Customer as a client of the Company in external communications, marketing materials, on Company’s website and as specified in Section 3.2.
This Agreement constitutes the complete, final and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.