Terms of service
EFFECTIVE DATE: February 02, 2023
These Terms of Service (“Terms”), are by and between the Provider (the “Provider”) named on any Order (as defined below) and the customer (the “Customer”) named on any Order and sets out the terms and conditions under which Provider will provide, and Customer will receive access to the Services (as defined below).
The parties to these Terms are referred to herein individually as “Party” and collectively as the “Parties”.
Provider may change these Terms from time to time which changes shall be effective upon the commencement of the next Renewal Term (as defined below).
1.1 “Affiliate” means any entity which directly or indirectly Controls, is Controlled by, or is under common Control by either Party. “Control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 “Authorized User” means Customer’s employees, independent contractors and agents who are authorized by Customer to access and use the Subscription Services on Customer’s behalf.
1.3 “Content” means floor plans, CAD drawings, building maps, images, documents, graphics, messages, communications, information, or other materials imported by Customer into the Subscription Services.
1.4 “DPA” means the data protection addendum available at https://www.eptura.com/terms/dpa, setting out Provider’s role and obligations as a data processor on the Customer’s behalf.
1.5 “Documentation” means written or electronic explanatory materials, such as user manuals, training manuals, specifications regarding use of the Services that are published by Provider and which may be revised by Provider from time to time.
1.6 “Fees” means the fees payable by Customer as specified in each Order.
1.7 “Hardware” means the Provider hardware products to be sold by Provider to Customer as set out in the Order.
1.8 “Hardware Addendum” means the addendum specific to hardware found at https://www.eptura.com/terms/hardware.
1.9 “Implementation Fees” means the Fees to establish the Subscription Service, as further specified in the applicable Order.
1.10 “Initial Term” means the initial period for Services, as specified in the Order.
1.11 “Law(s)” means any statute, ordinance, judicial decision, executive order, directive or regulation having the force and effect of law in each case to the extent applicable to a Party, the Services and the use thereof, in connection with these Terms.
1.12 “Order” means an ordering document that specifies the Services purchased by Customer or its Affiliates under these Terms, which may include as applicable, the quantities, subscription start and end dates, Implementation Fees, Support Services, Professional Services, and other related details. If multiple Orders are executed each such Order will form a separate contract between the Parties.
1.13 “Overage Fees” means additional units or quantities, related to the Subscription Services, which are in excess of the initial contracted amounts in the Order.
1.14 “Professional Services” means any services other than the Subscription Services or Support Services to be provided by Provider as more particularly described in an Order.
1.15 “Sensitive Data” means an (i) individual’s government-issued identification number (including Social Security number (or equivalent), driver’s license number, or state-issued identification number); (ii) sexual preference or activities, marital status, nationality, racial or ethnic origin; (iii) financial account number, credit card number, debit card number, credit report information, with or without any required security code, access code, personal identification number or password that would permit access to an individual’s financial account; (iv) religious or philosophical beliefs or affiliations, political party membership, or labor or trade union membership; or (v) biometric, genetic, health, medical, or medical insurance data.
1.16 “Standard Personal Data” means any information relating to an identified or identifiable individual, including but not limited to: name, business email, employer ID, job title, phone numbers, mail stop, room location, desk location submitted by Customer to the Subscription Services, as well as other standard personal information specific to the work environment and office and facilities management.
1.17 “Services” means, collectively, the Subscription Services, Support Services and Professional Services provided by Provider to Customer under the applicable Order.
1.18 “Subscription Services” means Provider’s software-as-a-service subscription cloud-based service as more specifically identified in an Order.
1.19 “Subscription Term” means the period during which the Subscription Services will be provided as set out in each Order, including the Initial Term and any Renewal Terms.
1.20 “Support Services” means the support services described in an Order.
1.21 “U.K.” means the United Kingdom
1.22 “U.S.” means the United States of America
2. THE SUBSCRIPTION SERVICES
2.1 Access Rights. Subject to these Terms, Provider grants to Customer and its Affiliates during the Subscription Term a worldwide, non-exclusive, non-transferable (except as expressly permitted in Section 12.5) right to access and use the Subscription Services solely for Customer’s internal business purposes and only in accordance with the applicable Documentation and the Order. Customer agrees that Customer’s subscription to the Services is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Provider regarding future functionality or features.
2.2 Use Restrictions. Customer will not and will not permit any of its Authorized Users to: (a) modify, copy or create any derivative works based on the Services; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Authorized Users as permitted herein; (c) reverse engineer or decompile any portion of the Services; (d) access the Services or use any Documentation in order to build a similar product or competitive product; (e) copy any features, functions, integrations, interfaces or graphics of the Services; (f) submit any infringing or otherwise unlawful or tortious material to the Service, including material that violates privacy rights; (g) intentionally interfere with or disrupt the integrity or performance of the Service; (h) circumvent or disable any security or features of the Subscription Services, or attempt to probe, scan, gain access to, or test the vulnerability of Provider’s network and/or Subscription Services or any systems, networks, servers, computers, devices, or equipment owned, controlled, or used by Provider to provide the Services; (i) frame or mirror any portion of the Services; (j) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Service content, or reproduce or circumvent the navigational structure or presentation of the Services; (k) engage in any conduct that is likely to result in Services being the target of a denial of service (DoS) attack, or interfere with or disrupt the integrity or performance of the Services or any related data; (l) remove any copyright notices, trademarks and any other proprietary marks of Provider, its Affiliates and its suppliers from any Documentation or Services; or (m) upload, transmit or store any Sensitive Data through the Subscription Services.
2.3 Acceptable Use Policy. During the Subscription Term, Customer (a) shall be solely responsible for the integrity, accuracy, legality, and quality of the Customer Data; (b) shall be responsible for procuring any necessary consents or having other legal basis to upload and store Standard Personal Data in the Subscription Services; (c) shall be responsible for ensuring that its internet connections and hardware are compatible with the Subscription Services as set out in the relevant Documentation; (d) shall not upload any data in the Subscription Services that it knows or has reason to know: (i) infringes another’s intellectual property rights, or (ii) invades any privacy laws including without limitation another’s right to privacy and/or any privacy policies of Customer or any third-party; (e) shall not: (i) engage or facilitate any unethical, deceptive or misleading practices in connection with the use of the Subscription Services, (ii) use the Subscription Service to send unsolicited messages (commercial or otherwise), and/or (iii) provide data to be transmitted in the Subscription Services which is defamatory, libelous, obscene, pornographic, threatening, defamatory, or is otherwise harmful; and/or promotes violence, discrimination, illegal activities, gambling, alcoholic beverages, guns or tobacco; (f) acknowledges that it is responsible for implementing and maintaining reasonable security precautions in connection with its use of the Subscription Services; and (g) agrees to (i) identify and authenticate all Authorized Users, (ii) approve access by such Authorized Users to the Subscription Services; and (iii) promptly deactivate access to terminated personnel or known unauthorized personnel.
2.4 Authorized Users. Provider is not responsible for any harm arising from any acts or omissions of any Authorized Users, including individuals who were not authorized to access the Subscription Services but who were able to gain access for any reason. Customer will notify Provider immediately of any actual or suspected unauthorized access to the Subscription Services at [email protected]
2.5 Professional Services. In the event that Customer elects to have Provider perform any Professional Services, the Parties will enter into a statement of work governing the provision of such Professional Services. Provider shall perform such Professional Services (i) in a professional and workmanlike manner and (ii) in accordance with the terms and conditions set out in the statement of work. If Customer does not reasonably believe that Provider has performed its obligations as required under this Section then Customer must notify Provider of this within thirty (30) days of completion of the affected Professional Services. Customer’s exclusive remedy arising out of a failure to provide the Professional Services in accordance with this Section is limited to the re-performance of the Professional Service, or if re-performance is not commercially reasonable (in the sole opinion of Provider), termination as provided by Section 11.2 (Termination for Material Breach). Any changes to the Professional Services will not be effective unless mutually agreed upon in writing. Customer will provide (as relevant) assistance, cooperation, key role positions, and resources reasonably necessary to enable Provider to perform the Professional Services. Customer acknowledges that Provider’s ability to provide Professional Services as described in the statement of work may be affected if Customer does not meet its responsibilities as set out in the applicable statement of work.
2.6 Affiliates. Customer and/or Customer’s Affiliates may purchase Services through an Order. In such event, (i) Customer Affiliate executing the Order will, for the purposes of such Order, be considered “Customer” as that term is used in these Terms, and (ii) all Orders will be governed by these Terms regarding Customer’s and its Affiliate’s access and use of the Services and the Order will include a statement to this effect which shall be signed by the relevant Affiliaite. For clarity, Provider will not be obligated to provide any Services to Customer, or its Affiliate(s) until Provider receives a valid Order for such Services.
2.7 Changes to the Subscription Service. Provider may modify the Subscription Services from time to time by removing unused features or substituting outdated features with new features that have similar or improved functionality, by implementing system upgrades, migrations and/or platform changes or otherwise so long as such changes are not intended to and do not materially adversely affect Customer’s use of the Subscription Services.
3. PROVISION OF SERVICES
3.1 Subscription Services Availability. During the Subscription Term, Provider will (i) use commercially reasonable efforts to make the Subscription Services available to the Customer in accordance with the applicable Service Level Addendum xlocated at https://www.eptura.com/terms/sla; and (ii) utilize a reputable hosting infrastructure to provide the Subscription Services.
3.2 Support Services. During the Subscription Term, Provider will provide the Support Services to Customer as set out in the Order.
4.1 Hardware Addendum. The sale and purchase of the Hardware shall be governed by the the terms of the Hardware Addendum.
4.2 Risk and Title. Title to Hardware passes to Customer when Hardware is paid for in full. Risk in the Hardware shall pass to the Customer once the Hardware is shipped.
5. PAYMENT AND TAXES
5.1 Payment Terms. Unless specified otherwise in the Order, all Fees (i) will be stated and paid in the currency specified in the Order without setoff or any deductions, (ii) cannot be decreased during the Subscription Term; and (iii) are non-refundable. Customer will pay the Fees identified in the Order as follows:
(a) Subscription Service Fees. Unless otherwise provided on the Order, Provider will invoice Customer annually in advance for the Subscription Services. Payment is due to Provider on the earlier of (i) thirty (30) days from the invoice date or (ii) the anniversary of the Order start date. Subscription Fees are based on Services purchased and not actual usage (except for Overage Fees).
(b) Hardware. Unless otherwise provided on the Order, all Fees in respect of Hardware shall be invoiced within 30 days of shipping of the Hardware.
(c) Overage Fees. Customer will pay to Provider the Overage Fees calculated and invoiced in accordance with the Order within thirty (30) days from the invoice date.
(d) Implementation Fees. Provider will invoice Implementation Fees as provided on the Order.
(e) Professional Services Fees. Professional Services Fees will be delivered on time and material basis or fixed fee basis as stated in an Order or statement or work.
(f) Expenses. Provider will invoice Customer in arrears for any pre-approved expenses incurred in connection with delivering any of the Services, such as food, travel, and lodging, as set out in the applicable Order or statement of work.
5.2 Payment Details. Customer is responsible for providing complete and accurate invoicing details and primary contact information to Provider and notifying Provider of any changes to such information. Where a purchase order number is given by Customer, Provider shall include such purchase order number on the invoice. If Customer fails to provide or provides an incorrect purchase order number then it shall not be relieved of its obligation to pay the relevant Fees.
5.3 Overdue Charges. Any undisputed payment that is not received by the due date may accrue late charges at the rate of 1.5% per month or the highest rate permitted by Law, whichever is lower, plus any and all collection costs.
5.4 Invoice Disputes. If Customer reasonably, and in good faith, disputes all or any portion of any invoice, Customer will notify Provider in writing of its objection within thirty (30) days from the date of Customer’s receipt of the relevant invoice, provide a detailed description of the reasons for the objection, and pay the portion of the invoice which is not in dispute (if any). Failure to provide an objection within the time frame will be deemed acceptance of the invoice. Customer’s obligations to pay the disputed amounts of any such invoice will be suspended until such time as the Parties resolve such dispute.
5.5 Taxes. Except as otherwise stated in an Order, the Fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties, or similar governmental assessments of any nature, including value-added, goods- and-services tax, excise, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes, excluding any income taxes levied on Provider. If Provider has a legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides Provider with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by Law to account for or pay any withholding for any tax, duty, or other charge in respect of any invoice issued by the Provider (“WHT”), Customer will (i) gross up the amount payable under the invoice to apply the rate of WHT so that, after payment of any WHT, the net amount received by Provider from Customer will be equal to the actual amount payable under the invoice; (ii) pay the WHT to the relevant taxing or other governmental authority; and (iii) promptly provide evidence of such payment. Customer shall indemnify, and hold Provider and its Affiliates harmless from and against third party claims, damages, losses, liabilities, costs and expenses arising from non-payment of any WHT.
5.6 Fee Increase. Provider reserves the right to increase fees annually during the Subscription Term.
6. PROPRIETARY RIGHTS.
6.1 Retained Rights. Subject to the limited rights expressly granted hereunder, Provider and its licensors reserve all of their right, title and interest in and to the Subscription Services including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set out herein.
6.2 Content and Standard Personal Data. Customer represents and warrants it has the right and authority to provide Provider with the Content and any Standard Personal Data for use in connection with the Subscription Services. As between the Parties, the Content and Standard Personal Data will be owned by Customer. Customer grants Provider a non-exclusive, worldwide, transferable, royalty-free and fully paid license to use the Content and Standard Personal Data solely as necessary to perform the Subscription Services.
6.3 Feedback. The Parties acknowledge that the Subscription Services may collect and aggregate certain de-identified information and data regarding the use and operation of the Subscription Services by Customer. Customer agrees that Provider may utilize such information and data as well as any Customer suggestions, enhancement requests or other recommendations (collectively, “Feedback“) for any lawful business purpose, without a duty of accounting to Customer so long as such Feedback does not identify Customer, or any Customer provided Content or Standard Personal Data. No compensation will be paid with respect to Provider’s use of Feedback. Provider will own all right, title, and interest, including all related intellectual property rights in any Feedback provided by Customer.
6.4 Aggregate Data. Notwithstanding anything to the contrary, Provider shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies so long as such collected and analyzed data does not identify Customer or any Customer data, and Provider will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Provider offerings, and (ii) disclose such data solely in aggregate or other anonymized, unidentifiable form in connection with its business.
7. CONFIDENTIALITY AND DATA PRIVACY.
7.1 Confidential Information. The term “Confidential Information” means Standard Personal Data, internal policies and procedures of a Party and all other non-public information that a reasonable person should understand to be confidential due to its nature and the circumstances in which it was disclosed and that is disclosed by or on behalf of either Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether such information is disclosed before or after the Effective Date. Confidential Information excludes information that (i) was in the public domain prior to the time of disclosure; (ii) enters the public domain after disclosure through no action or inaction of the Receiving Party; (iii) is already known by the Receiving Party at the time of disclosure; (iv) is obtained by the Receiving Party from a third party without restriction; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. Except as otherwise expressly set out in these Terms, the Receiving Party will not disclose (including, without limitation, distribute, transmit or transfer) or use the Confidential Information of the Disclosing Party or any portion thereof without the prior written consent of Disclosing Party except for the purpose of exercising its rights or performing its obligations under these Terms. The Receiving Party may disclose the Disclosing Party’s Confidential Information to its employees, consultants, and agents who are bound by obligations of confidentiality no less protective than those set out in these Terms and Receiving Party will be responsible for any unauthorized disclosure of any Confidential Information by such persons as if Receiving Party had made such unauthorized disclosure itself. In addition, the Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent required by Law so long as the Receiving Party gives the Disclosing Party (to the extent legally permissible) prompt written notice prior to the disclosure and reasonable assistance in limiting disclosure or obtaining a protective order. Provider may disclose the agreement between the Parties to actual and potential investors and funding sources who agree to hold it in confidence. The Receiving Party agrees to take steps designed to protect the Disclosing Party’s Confidential Information that are substantially similar to those it takes to protect its own proprietary information (but not less than reasonable care) from unauthorized disclosure. Receiving Party will promptly notify the Disclosing Party if the Receiving Party becomes aware of any misuse or unauthorized disclosure of Confidential Information.
7.2 Return of Confidential Information. Upon Disclosing Party’s written request, Receiving Party will return or destroy all Confidential Information. However, Receiving Party is permitted to retain copies of the Confidential Information for archival, audit, disaster recovery, legal and/or regulatory purposes, and Receiving Party will not be required to purge Confidential Information from the electronic back-up files of its computer systems, on condition that any Confidential Information so retained will remain subject to the obligations and restrictions set out in these Terms.
7.3 Injunctive Relief. The Receiving Party acknowledges that any unauthorized disclosure of Confidential Information of the Disclosing Party may result in irreparable injury to the Disclosing Party, which injury could not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to seek injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to: (a) show any actual damage or irreparable harm; (b) prove the inadequacy of its legal remedies; or (c) post any bond or other security.
7.4 Data Security and Privacy. Provider maintains industry standard physical, administrative, and technical security measures to protect against and prevent unauthorized access of Standard Personal Data and Content. Provider is not responsible for unauthorized access, alteration, theft or destruction of Standard Personal Data or Content arising from Customer’s or its Authorized User’s actions or omissions. If applicable, Provider will process Standard Personal Data in accordance with the DPA, which will be updated from time to time to reflect changes in Laws.
8. REPRESENTATIONS AND DISCLAIMER
8.1 Mutual Representations. Each Party represents and warrants that: (a) it has the full corporate right, power, and authority to enter into and perform its obligations and grant the licenses it grants or is required to grant under these Terms; (b) the execution of an Order by its representative whose signature is set out on the Order has been duly authorized by all necessary corporate or organizational action of such Party, and (c) when an Order is executed, the applicable Order will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
8.2 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, PROVIDER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED (IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER INCLUDING THAT THE SERVICES OR THE DOCUMENTATION ARE ERROR-FREE OR THAT OPERATION OR USE OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. PROVIDER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT. THE SUBSCRIPTION SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. PROVIDER SHALL NOT HAVE ANY LIABILITY FOR PERSONAL INJURY OR DEATH (EXCEPT WHERE ARISING FROM NEGLIGNCE) OR PROPERTY DAMAGE ARISING FROM FAILURE OF THE SUBSCRIPTION SERVICES, HOWEVER CAUSED OR UNDER ANY THEORY OF LIABILITY, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9. INDEMNIFICATION AND PROCEDURES
9.1 Provider Indemnification. Provider will defend, indemnify, and hold Customer and its Affiliates harmless from and against third party claims, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees) (collectively, “Claim(s)”) arising out of or relating to the extent (a) that the Services infringe or misappropriate any intellectual property right of such third party or (b) arising out of Provider’s gross negligence, willful misconduct or fraud.
9.2 Provider will have no obligation under Section 8.1(a) for any Claim to the extent arising out of or is based upon: (i) Customer’s use of the Services not in compliance with these Terms, Order, or the Documentation; (ii) Customer’s combination of the Services with software, hardware, system, data, or other materials not supplied or authorized by Provider (unless expressly permitted by the Documentation) without Provider’s prior written authorization; or (iii) the Content or Standard Personal Data provided to Provider.
9.3 In the event an infringement or misappropriation Claim involving the Services is brought or threatened, or is likely to be brought or threatened in Provider’s reasonable opinion, Provider may, at its sole option and expense: (x) procure for Customer the right to continue to use the Services, (y) modify the Services in a manner that does not materially degrade the Service’s functionality, or (z) terminate the affected Services and, with respect to termination of the Subscription Services, refund the unearned portion of the Fees payable for the affected Subscription Services based on the days left in the Subscription Term, less any Fees for usage accrued prior to the date of termination. Notwithstanding anything else herein, the foregoing indemnification obligations are Provider’s only obligations and liability, and Customer’s exclusive remedy, in respect of any infringement or misappropriation Claim.
9.4 Customer Indemnification. Customer will defend, indemnify, and hold Provider, its Affiliates, suppliers, and licensors harmless from and against any Claims arising out of or relating to: (a) Standard Personal Data and Content provided to Provider; (b) breach of Sections 2.2 or 2.3; (c) alleged infringement or misappropriation of third-party’s intellectual property rights resulting from Standard Personal Data or Content; or (d) Customer’s gross negligence, willful misconduct, or fraud.
9.5 Indemnification Procedures. The Party seeking indemnification (the “Indemnified Party”) hereunder shall promptly notify the other Party (the “Indemnifying Party”) in writing of any action and cooperate with the Indemnifying Party at the Indemnifying Party’s sole cost and expense. The Indemnifying Party shall immediately take control of the defense and investigation of such action and shall employ counsel of its choice to handle and defend the same. The Indemnifying Party shall not settle any action in a manner that adversely affects the rights of the Indemnified Party without the Indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed. The Indemnified Party’s failure to perform any obligations under this Section shall not relieve the Indemnifying Party of its obligations under this Section except to the extent that the Indemnifying Party has been prejudiced as a result of such failure. The Indemnified Party may participate in and observe the proceedings at its own cost and expense.
10. LIMITATION OF LIABILITY
10.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES AND THEIR RESPECTIVE REPRESENTATIVES BE LIABLE FOR (I) PURE ECONOMIC LOSS OR LOSS OF REVENUE OR PROFITS; LOSS OF USE OR DAMAGE TO DATA; COST TO PROCURE SUBSTITUTE SERVICES; LOSS OR DEPLETION OF GOODWILL; OR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES; AND (II) DIRECT DAMAGES IN EXCESS OF THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER AND ITS AFFILIATES TO PROVIDER HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATIONS AND EXCLUSIONS DO NOT APPLY TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, OR CUSTOMER’S FAILURE TO REMIT ALL FEES PROPERLY DUE AND OWING UNDER THE APPLICABLE ORDER.
11.1 Insurance. Provider will maintain insurance with financially sound and reputable insurance companies in such amounts and covering such risks as is usually carried by companies engaged in its business and as required by any certifying organization including: (a) worker’s compensation insurance; (b) employer’s liability insurance; (c) comprehensive automobile liability insurance; (d) comprehensive general liability insurance; (e) professional liability insurance; and (f) cyber liability insurance. Upon Customer’s request, Provider will provide a certificate of insurance.
12. TERM AND TERMINATION; SUSPENSION.
12.1 Order Term. Each Order will set out the applicable term during which the Services will be provided to Customer. Unless otherwise provided in an Order, upon expiration of the Initial Term or any Renewal Term, the Subscription Services will automatically renew for additional one (1) year periods (each a “Renewal Term”). Each Party must provide at least sixty (60) days’ written notice if it intends for the Subscription Services to expire at the end of the then-current Subscription Term.
12.2 Termination. Either Party may terminate any Order immediately upon written notice if the other Party (a) materially breaches any obligations under these Terms or an Order and fails to cure the breach within thirty (30) days after receiving written notice to do so; or (b) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Any material breach notice by the terminating Party shall expressly state all the reasons for the claimed breach in sufficient detail to provide the other Party the opportunity to cure the alleged breach.
12.3 Effects of Termination. Upon termination or expiration of the applicable Order, Customer’s use of the Subscription Services shall cease. Termination of an Order will not relieve Customer of any liability accrued prior to the date of termination. In addition, if an Order is terminated by Customer for any reason other than those listed in Section 12.2, Customer will remain responsible for any fees set out in the Order, regardless of whether such amounts have been invoiced or are payable at the time of such termination. However, upon termination of an Order by Customer for Provider’s breach, Provider will refund to Customer any unused, prepaid fees covering the remainder of the term of the applicable Order. Termination of an Order will not affect the Parties’ rights and obligations under any other Order, and all other Orders will remain in full force and effect unless and until terminated in accordance with their terms.
12.4 Data Retention and Deletion. For thirty (30) days following expiration or termination of an Order (“Retention Period”), Customer may at its sole discretion provide a written request to Provider that: (a) Provider returns a complete copy of all Standard Personal Data (exported in an CSV format using standard export functions provided by the Subscription Service); or (b) delete and procure the deletion of all copies of Standard Personal Data. Provider shall have 45 days to comply with any such written request. Promptly following the Retention Period, and in any event within 60 days of the expiry of the Retention Period, Provider shall delete and procure the deletion of any copies of any Standard Personal Data which has not already been deleted upon the written request of Customer. Notwithstanding the other terms of this section, Provider may retain Standard Personal Data to the extent required by Law(s) and only to the extent and for such period as required by Law(s) and always provided that Provider shall ensure the confidentiality of all such Standard Personal Data and shall ensure that such Standard Personal Data is only processed as necessary for the purpose(s) specified in the Law(s) requiring its storage and for no other purpose.
12.5 Suspension. Provider reserves the right to suspend access to the Subscription Service without liability if: (a) Customer is delinquent on any undisputed late payment obligations for more than thirty (30) days following written notice of such late payment; (b) Provider reasonably believes that suspension of the Subscription Service is necessary to comply with Law or request of governmental entities; (c) Provider reasonably determines that Customer’s use of the Subscription Service poses any security or vulnerability risk to Provider, Customer, or the Subscription Service; or (d) if Provider reasonably determines the security or proper functionality of the Subscription Services may be compromised due to hacking, denial of service attacks, or a security incident involving the Provider’s Services. Provider will endeavor to give advance notice of any suspension and will restore access to the Subscription Service as soon as the underlying cause is mitigated.
12.6 Survival. If these Terms are terminated for any reason, remedies for breach, rights to accured payments and Sections 1 (Definitions), 4.1 (Payment Terms), 5.3 (Feedback), 6 (Confidentiality and Data Privacy), 8 (Indemnification), 9 (Limitation of Liability), 11.3 (Effects of Termination), 12 (General) will survive termination or expiration of these Terms.
13. GENERAL TERMS
13.1 Waiver and Severability. No failure or delay by either Party in exercising any right under these Terms will constitute a waiver of that right. All waivers must be in writing and signed by the Party granting the waiver. The waiver by a Party of any of its rights or remedies in a particular instance will not operate as a waiver of any subsequent event or breach by the other Party. If any provision of these Terms is deemed invalid, illegal or unenforceable, that provision will be restated so that it is enforceable to the maximum extent permissible under law and is consistent with the original intent and economic terms of the invalid provision. The remainder of these Terms will remain valid and enforceable in accordance with its terms.
13.2 Subcontractors. Provider reserves the right to use subcontractors (who are under a covenant of confidentiality with Provider), including, but not limited to, offshore subcontractors to assist with Services, including, without limitation, data migration, configuration, and implementation processes. Provider will be and remain fully responsible for the acts and omissions of subcontractors to the same extent as its own employees.
13.3 Non-Solicitation. During the Subscription Term and for twelve (12) months thereafter, neither Party will, directly or indirectly, induce or attempt to induce any employee or consultant of the other Party or any of its Affiliates engaged in the provision, receipt, review or management of the Services to leave the employment of the other Party. Nothing in this Section will preclude either Party from publishing or otherwise making general solicitations of employment not specifically directed towards personnel or hiring personnel because of such general solicitation.
13.4 Force Majeure. Neither Party will be liable for any failure to perform due to circumstances beyond its reasonable control, including without limitation, acts of God; acts of government; natural disasters; fire; civil unrest; acts of terror; pandemic; labor problems (other than those involving such Party’s employees); Internet or telecommunications service provider failures; or cyberattacks. A force majeure event will not include a Party’s financial inability to perform its obligations. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
13.5 Assignment. Neither Party may transfer or assign any of its rights or delegate any of its obligations under these Terms, in whole or in part and including any transfers by operation of law, without the prior written consent of the other Party. However, either Party may transfer or assign its obligations under these Terms in their entirety without the consent of the other Party to an Affiliate or in connection with a merger, acquisition, and corporate reorganization, sale of all or substantially all of its assets or a similar transaction. Where there is a legal requirement for consent of each Party in order to allow any such assignment or transfer, the Parties agree to provide such consent (including, where required, entering into an assignment or transfer agreement). Any attempted assignment or transfer in violation of this Section will be null and void. These Terms will be binding on and inure to the benefit of the Parties and their respective permitted successors and assigns.
13.6 Relationship of the Parties. The relationship between the Parties is that of independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Neither Party will have authority to contract for or bind the other Party in any manner whatsoever.
13.7 Publicity. Provider may identify Customer as a customer of Provider on Provider’s website as well as within any written and/or electronic marketing material relating to Provider’s products and/or services.
13.8 Third-Party Beneficiaries. These Terms are for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express, or implied, is intended to or will confer upon any other party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
13.9 Compliance with Laws. Each Party will comply with all Laws in the performance of its obligations under any Order and these Terms, including, without limitation, privacy, anti-bribery and modern slavery laws. Each Party will maintain its own policies and procedures designed to ensure compliance with all Laws.
13.10 Governing Law. All matters arising out of or relating to an Order or these Terms and any dispute or claim arising out of or in connection with them or their subject matter or formation (including noncontractual disputes or claims) shall be governed by and construed in accordance with the domestic law of Provider. For Customers contracting with a Provider which is a US entity New York law shall apply. Each party irrevocably agrees that the courts of Provider’s domestic jurisdiction shall have exclusive jurisdiction to settle any dispute or claim arising out this of or in connection with all matters arising out of or relating to an Order or these Terms or their subject matter or formation (including non-contractual disputes or claims). For Customers contracting with a Provider which is a US entity, the courts of the state of New York shall have exclusive jurisdiction.
13.11 Dispute Resolution. If a dispute should arise between the Parties relating to these Terms or any Order, the Parties shall promptly hold a meeting, attended by persons with decision-making authority regarding the dispute, in an attempt in good faith to negotiate a resolution of the dispute; provided, however, that no such meeting shall be deemed to vitiate or reduce the obligations and liabilities of the Parties or be deemed a waiver by either Party hereto of any remedies to which such Party would otherwise be entitled. If the dispute is not resolved within thirty (30) days after the commencement of negotiations, or if no negotiations are commenced within sixty (60) days after one Party notifies the other Party of such dispute, then such dispute may be resolved by formal legal actions. The foregoing process will not apply if expiration of the applicable time for bringing an action is imminent and will not prohibit a Party from pursuing injunctive or other equitable relief to which it may be entitled.
13.12 Notices. Any notice required or permitted to be given will be effective if it is in writing and sent by certified or registered mail, or overnight courier, return receipt requested, to the appropriate Party at the address set out on Order and with the appropriate postage affixed. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section 12.12. Notices are deemed given two (2) business days following the date of mailing or one business day following delivery to a courier.
13.13 U.S. Government End Users. As defined in Federal Acquisition Regulation (“FAR”) section 2.101, Defense Federal Acquisition Regulations Supplement (“DFARS”) section 252.227-7014(a)(1) and DFARS section 252.227-7014(a)(5) or otherwise, all software and accompanying documentation provided in connection with these Terms are “commercial items,” “commercial computer software,” and or “commercial computer software documentation.” Consistent with DFARS section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by these Terms as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the FAR and its successors, or if purchased by any agency in the Department of Defense, as specified in 48 C.F.R. 227.7202-3 of the DFARS and its successors. Customer will ensure that each copy used or possessed by or for the government is labeled to reflect the foregoing.
13.14 Export Compliance. Each Party represents that it is not named on any U.S. or U.K.government or United Nations list of persons or entities with which U.S. or U.K. persons or United Nations members are prohibited from transacting, nor owned or controlled by or acting on behalf of any such persons or entities, and Customer will not permit any Authorized User to access or use the Services in any manner that would cause any Party to violate any U.S., U.K. or international embargo, export control law, or prohibition.
13.15 Entire Agreement and Amendments. These Terms, including the Order(s) and any statement(s) of work, sets forth the entire agreement and understanding of the Parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, and discussions and understandings, written or oral, with respect to such subject matter. Any change to these Terms will not have effect prior to the next Renewal date unless agreed in writing by both Parties. These Terms shall take precedence over any conflicting terms in Customer-provided purchase or procurement documentation, such as a purchase order, acknowledgement form, or other similar documentation. Any pre-printed terms and conditions on or attached to Customer’s purchase orders or invoices will be of no force or effect. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (a) these Terms, (b) the applicable Order and (c) the Documentation. The titles and headings are for reference purposes only and will not in any way affect the meaning or interpretation of these Terms.
Rev. Feb 2, 2023