EACH PARTY ACKNOWLEDGES THAT IT HAS READ THESE TERMS AND CONDITIONS OF SERVICE AND THE DOCUMENTS REFERENCED HEREIN (ALL OF WHICH BY THIS REFERENCE ARE INCORPORATED HEREIN AND MADE A PART HEREOF), UNDERSTANDS IT, AND AGREES TO BE BOUND BY THEM.
Company reserves the right to modify these Terms and Conditions of Service and any policies posted on our website which affects the System or Services, including any Service or implementation schedule, at any time upon written notice to you. If we make any changes, we will notify you by revising the version and its effective date and adding a statement to the log-in screen or sending you an email notification, as applicable. Your continued use of the Services after any such modification and notice shall be deemed, conclusively, your acceptance of all such modifications. Your only right with respect to any dissatisfaction with any modifications of these Terms and Conditions of Service pursuant to this provision is to terminate your subscription as provided herein. Notwithstanding the foregoing, Company may not revise the Service Order except by written agreement signed by a duly authorized representative of each Party.
1. DEFINITIONS.
As used in this Agreement:
1.1. “Customer Data” means data in electronic form input or collected through the System by or from Customer, including (without limitation) Customer’s telephone numbers and account registration data.
1.2. “Documentation” means Company’s written documentation for the System or Services.
1.3. “Service Order” means the digital or tangible document entitled Service Order which is signed by Customer and identifies the Services ordered by Customer and accepted by Company.
1.4. “Privacy Policy” means Company’s privacy policy at www.calleridreputation.com/privacy-policy.
1.5. “Monitoring Services” means reputation monitoring using aggregated data from leading native applications and carriers heuristic data sources.
1.6. “Device Cloud Services” means telecommunications testing service that tests delivery to an extensive range of real mobile devices on major US cellular networks up to the number of DIDs specified in the Service Order.
1.7 “Dedicated Technical Support” means dedicated support technician who helps manage and maintain device cloud reporting and functionality.
1.8 “Dedicated Device Cloud Resources” means priority access to our telecommunication service and System resources which provide Device Cloud Services for Customer’s use during the Term with the ability to select a custom schedule, device and application combinations, and custom origination carrier.
1.9. “Remediation Services” means services on behalf of Customer, including working directly with flagging parties, to remove or redress negative flagging of Customer’s telephone numbers.
1.10 “Service” or “Services” means any of the above-defined services, resources and support identified in a Service Order or these Terms and Conditions of Service, and includes use of the System as necessary to use and obtain such Services.
1.11. “System” means Company’s software and hardware technology and resources as an integrated system made available by Company to Customer via the internet during the Term, including all modifications, updates, translations, enhancements and other Derivative Works (defined by 17 U.S.C. §101) thereof, together the Documentation. The term “System” excludes Customer Data.
1.12. “Term” means the period from the Start Date to the End Date stated in a Service Order.
1.13. “User” means any person who accesses a Service through Customer’s account or passwords, whether authorized or not.
2. THE SERVICES.
2.1. Use. Subject to the terms of the Agreement and during the Term, Company will use commercially reasonable efforts to provide Customer the Services pursuant to: (a) the terms of any outstanding Service Order; and (b) these Terms and Conditions of Service, including the terms of any policy and agreement referenced herein hereto, as the same may be updated from time to time as provided herein. Company authorizes its Users, and no others, to obtain Services during the Term.
2.2. Appointment (if Services include Remediation Services). If the Service Order includes Company’s Remediation Services, Customer hereby appoints and authorizes Company to perform such services and for and on behalf of Customer to: (a) obtain CPNI information regarding the services provided to Customer; (b) provide the customer name to be shown in
Caller ID field; (c) register/re-register the customer CNAM; (d) request any telecommunications company to update, revise and/or correct improper name(s) and/or any negative association or “spam” references in the Caller ID field and to unblock calls made from Customer’s telephone number not be blocked; and (e) mask Customer’s telephone numbers to simulate Customer’s outbound calls. This designation and appointment, along with the rights of provided herein, shall continue until withdrawn written by written notice to Company executed by Customer’s authorized representative.
2.3. Documentation: Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the Services.
2.4. Revisions. Company may revise System or Service features and functions. If any such revision materially reduces features or functionality provided pursuant to a Service Order, Customer may within 30 days of notice of the revision terminate such Service Order, without cause, unless Company and Customer mutually agree otherwise and in writing. If any revision of a Service materially reduces service levels provided pursuant to an outstanding Service Order, the revisions will not go into effect with respect to such Service during the Term of the effected Service Order.
2.5 Fees. Customer will pay Company the then applicable fees when due as described in the Service Order for the Services (“Fees”). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 30 days after the closing date on the first payment or billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department. Unpaid amounts are subject to a late charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Vendor’s net income. Except as expressly stated otherwise in the Agreement, Company will not be required to refund any Fees under any circumstances.
3. TECHNICAL SUPPORT.
3.1. Company will provide the technical support and remedies for any failure of the System or Services as provided in this Section 3. Such remedies are Customer’s sole remedy for any failure of the System, and Customer recognizes and agrees that if no remedy is stated herein for a given failure of the System or Services, there is no remedy for such failure.
3.2. Services include Technical Support during the period for which all Fees due Company are paid. “Technical Support” means Company’s commercially reasonable efforts to: develop and deploy updates, enhancements, modifications, bug fixes, or other similar changes to the System or Services which Company deems necessary or advisable with respect to enhancing or improving features and functionality; and resolve bugs, errors, problems, other disruptions in System operations, and Errors (as defined below), including those identified and communicated by Customer.
3.3. Company will provide Technical Support to Customer from 5:00am to 8:00pm Pacific Standard Time via telephone and electronic mail on weekdays (excluding federal holidays) (“Business Days”).
3.4. Customer may request help by calling (888) 619-9586 or any time by emailing [email protected]
3.5. Company will use commercially reasonable efforts to (i) respond to your requests for Technical Support by the next Business Day and (ii) correct inoperability of System functionality (an “Error”) caused by Company’s configuration or programming error. The time required to resolve an Error depends on its complexity and the availability of sufficient detail from Customer to reproduce it.
3.6 Company may suspend the provision of Technical Support if Customer is unwilling or unable to assist in troubleshooting the claimed problem or Error by providing information about the problem or Error and surrounding circumstances as and when requested and otherwise cooperating with Company’s support personnel to troubleshoot and resolve it. Customer shall indicate the severity of the problem (indicating whether it is a “Critical Issue”) when requesting the initiation of a trouble ticket.
3.7 Technical Support is not available during: (a) scheduled System maintenance; (b) emergency network or equipment maintenance; (c) Force Majeure Events; or (d) Service interruptions caused by Customer’s failure to follow procedures.
4. CUSTOMER DATA & PRIVACY.
4.1. Use of Customer Data. Unless it receives Customer’s prior written consent, Company will not use Customer Data other than as necessary to provide the Services, subject to our Privacy Policy. Notwithstanding the foregoing, Company may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Company will give Customer prompt notice of any such legal or governmental demand for any protected information and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest required disclosure of Customer Data which is protected by our Privacy Policy, at Customer’s expense.
4.2. Privacy Policy. Our Privacy Policy applies only to Customer Data and does not apply to any third-Party website or service linked to the System or recommended or referred to through the System or by Company’s staff.
4.3. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Services, Customer assumes such risks. Company offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third Parties.
4.4. Data Accuracy . Company will have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including (without limitation) Customer Data and any other data uploaded by Users.
4.5. Customer Data. Company takes seriously the security of Customer Data and, thus, has taken measures Company deems reasonable and necessary to safeguard the Customer Data in the System against loss or unauthorized exposure. Company will return all Customer Data and destroy all other whole or partials copies thereof in its possession promptly following the 30th day after termination of the Services.
4.6. Excluded Data. Customer represents and warrants that Customer Data does not and will not include, and Customer has not and will not upload or transmit to Company’s computers or other media, any data or material that is illegal or for an illegal purpose or otherwise is deemed objectionable as reasonably determined by Company.
5. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
5.1. Restrictions. Customer agrees that it will not: (a) use the Services for the direct benefit of any person other than Customer or in any way allow third Parties (other than Customer’s Users) to use or exploit the Services; (b) sell or make available the Services or any element of the Services to any third party; (c) provide System passwords or other log-in information to any third Party without consent of Company; (d) share non-public System or Service features or content with any third Party without consent of Company; (e) access the System or Service in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System or Services, or to copy any ideas, features, functions or graphics of the System; (f) discover or attempt to discover, or assist or permit any person to discover or attempt to discover, by any means whatsoever the source code (the human-readable form) of any element of Company’s software included in the System or Service; or (g) prepare any derivate works based on the System’s software.
5.2. Unauthorized Access. Both Parties will take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Either Party will notify the other Party immediately of any known or suspected unauthorized use of the System or breach of its security and will use best efforts to stop said breach.
5.3. Compliance with Laws. In its use of the System and Services, each Party will comply with all applicable laws, including (without limitation) laws governing the protection of personally identifiable information and other laws applicable to the protection of such information and any other information which is proprietary to Customer and included in Customer Data. Customer agrees not to use the Services, directly or indirectly, for any illegal purpose or activity or for the transmission of material the Company deems is harmful, fraudulent, deceptive, infringing on rights of others, hateful or otherwise objectionable.
5.4. Users & System Access. Customer is responsible and liable for: (a) Users’ use of the Services, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of this Agreement; and (b) any use of the System through Customer’s account, whether authorized or unauthorized.
5.5 Audit Right and Records. Company (or its third-party agents) may, at reasonable intervals and with reasonable notice, request evidence, or, at Company’s option, conduct on-site audits at any of Customer’s locations solely to verify Customer’s compliance with financial terms of the Agreement and the restrictions stated in Section 5.1. Such audits shall be at no charge to Company, provided that, Company shall be responsible for any travel or lodging expenses of its auditor(s). During any audits, Customer shall provide Company, among other things, with access to its records limited to those necessary for such verification. If such audit reveals any violation of Section 5, Company shall notify Customer thereof and Customer shall promptly correct such violation. Company retains all other rights in the event of such violation.
6. IP & FEEDBACK.
6.1. Intellectual Property Rights to the System. Company retains all right, title, and interest in and to the Services, including without limitation all software used to access the System and provide the Services and all graphics, user interfaces, logos, and trademarks reproduced through the Services or used by Company. This Agreement does not grant Customer any intellectual property license or rights in or to the System or Services or any of its components or any logos, trademarks, service marks or other designations (whether or not registered) used by Company. Customer recognizes that the System, Services and its components are protected by copyright and other laws.
6.2. Feedback. Company has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Company, and nothing in this Agreement or in the Parties’ dealings arising out of or related to this Agreement will restrict Company’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Notwithstanding the provisions of Section 7 below, Feedback will not be considered Confidential Information, provided information Customer transmits with Feedback or related to Feedback may be considered Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Company’s products or services.)
7. CONFIDENTIAL INFORMATION.
“Confidential Information” refers to the following information which is proprietary to a Party which such Party (as “Disclosing Party”) discloses to the other Party (the “Receiving Party”): (a) any document marked “Confidential”; (b) any information disclosed orally it designates as “Confidential” at the time of disclosure, provided the Disclosing Party confirms such designation and describes such information in writing within 5 business days; (c) Documentation whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information the Receiving Party should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in the Receiving Party’s possession at the time of disclosure; (ii) is independently developed by the Receiving Party without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Receiving Party’s improper action or inaction; or (iv) is approved for release in writing by the Disclosing Party.
7.1. Nondisclosure. Each Party agrees that: it (a) will not use Confidential Information for any purpose other than to perform its express obligations hereunder (the “Purpose”); (b) will disclose Confidential Information only to employee’s or contractors whose responsibilities to such Party require access thereto in order to facilitate the Purpose and is legally bound to a nondisclosure agreement for the benefit of the Disclosing Party on terms no less restrictive than those of this Section 7; and (c) will not disclose Confidential Information to any other third party without the Disclosing Party’s prior written consent. Without limiting the generality of the foregoing, the Parties will protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Each Party will promptly notify the other Party of any misuse or misappropriation of Confidential Information that comes to their attention. Notwithstanding the foregoing, either Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority, provided it gives the other Party prompt notice of any such legal or governmental demand and reasonably cooperates with the other Party in any effort to seek a protective order or otherwise to contest such required disclosure.
7.2. Injunction. The Parties agree that breach of this Section 7 would cause the non-breaching Party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the non-breaching Party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
7.3. Termination & Return. With respect to each item of Confidential Information, the obligations related to Confidential Information constituting either Party’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon the termination of this Agreement, or at any time upon the request of the Disclosing Party, the Receiving Party shall promptly (and in no event later than thirty (30) calendar days) return all Confidential Information (and all copies and extracts and other embodiments thereof) to the Disclosing Party without charge, or, when and to the extent requested by the Disclosing Party, destroy the Disclosing Party’s Confidential Information, and an officer of the Receiving Party shall so certify in writing to the Disclosing Party that such Confidential Information has been destroyed.
7.4. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. The Parties will retain all right, title, and interest in and to all Confidential Information.
7.5. Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), both Parties acknowledge that, notwithstanding the foregoing or any other provision of this Agreement:
(a) Immunity. An individual shall not be held civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that: (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
(b) Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual: (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
8. REPRESENTATIONS & WARRANTIES.
8.1 From Each Party. Each Party represents and warrants to and agrees with the other Party that: (a) it is duly organized, validly existing and in good standing under the laws of the state in which it is organized, with full corporate power and authority to own or lease its properties and to conduct its business in the manner and in the places where such properties are owned or leased or such business is currently conducted; (b) neither the execution and delivery nor the performance of the Agreement by it will violate, result in a breach of any of the terms or provisions of, or constitute a default under any agreement, indenture or other instrument to which it is a party or any judgment, decree, order or award of any court, government body or arbitrator applicable to it; and (c) subject to laws for the relief of debtors, the Agreement constitutes a legal, valid and binding obligation of it enforceable in accordance with its terms.
8.2. From Company. Company represents and warrants that it is the owner of the System and of every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third Party. Company’s representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by Company. In the event of a breach of the warranty in this Section 8.2, or if in Company’s opinion the System or Service is likely to become the subject of an infringement claim, Company may, at its option and own expense: (a) secure for Customer the right to continue using the System; (b) replace or modify the System to make it non-infringing; or (c) terminate the infringing features of the System and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term remaining after such termination. In conjunction with Customer’s right to terminate for breach where applicable. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, THE PRECEDING SENTENCE STATES COMPANY’S SOLE OBLIGATION AND LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR BREACH OF THE WARRANTY IN THIS SECTION 8.2 AND FOR POTENTIAL OR ACTUAL INTELLECTUAL PROPERTY INFRINGEMENT BY THE SYSTEM.
8.3. From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by the Agreement, including (without limitation) any claims or litigation relating to any failure of Customer’s data security safeguards or unauthorized disclosure of third-party information entrusted to it; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; (c) if Customer is a natural person, he or she is at least the age of majority under applicable law; (d) it has been assigned control of the telephone numbers for which it has requested the Services by the Federal Communications Commission or by its lawful designee; and (e) it has the right to (i) use such telephone numbers, (ii) control and allow access to all data associated therewith and (iii) undertake all lawful actions in connection therewith.
8.4 OFAC Compliance. Customer further represents and warrants that:
(a) neither the Company nor, to Customer’s knowledge, any of its subsidiaries, officers, directors, employees or agents, is in violation of any applicable laws relating to anti-corruption, anti-bribery, terrorism, money laundering or the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Action of 2001, Public Law 107-56, as amended, and Executive Order No. 13224 (Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism) (the “Executive Order”) (collectively, the “Anti-Bribery, Anti-Money Laundering and Anti-Terrorism Laws”);
(b) neither the Company nor, to Customer’s knowledge, any of its subsidiaries, officers, directors, employees or agents, is acting, directly or indirectly, on behalf of terrorists, terrorist organizations or narcotics traffickers, including those persons or entities that appear on the Annex to the Executive Order, or are included on any Government List. The term “Government List” shall mean any of (i) the Denied Persons List and the Entities List maintained by the United States Department of Commerce, (ii) the Specially Designated Nationals and Blocked Persons List, the Sectoral Sanctions Identifications List, and the Foreign Sanctions Evaders List maintained by OFAC, and (iii) the Foreign Terrorist Organizations List and Debarred Parties List maintained by the United States Department of State;
(c) neither the Company nor, to Customer’s knowledge, any Person with a direct equity interest in Customer, is named on a Government List, or is acting for or on behalf of any country or territory subject to comprehensive economic sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), the U.S. Department of State, or any other applicable economic sanctions authority (collectively, “Sanctions”) as of the Effective Date including, without limitation, Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine (each a “Sanctioned Country”); and
(d) neither the Company nor any Person controlling or controlled by Customer, is the target of Sanctions. As used herein, the term “Person” shall mean a natural person, partnership, limited partnership, limited liability company, corporation, trust, estate, association, unincorporated association or other entity.
8.5. In addition, Customer further represents and warrants to and agrees with Company that: (i) Customer is solely responsible for all Customer Data that Customer makes available through the System, (ii) Customer is the sole and exclusive owner of all such Customer Data or has all rights, licenses, consents and releases that are necessary to use such data with the Services, and (iii) neither the Customer Data nor Customer’s using it will infringe, misappropriate or violate a third-Party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation, including, but not limited to, the Data Protection Act 1998, and any other applicable federal or state privacy laws. You retain the sole responsibility of your individual compliance with such laws and any other laws to which Customer or the Customer Data is subject.
8.6. Warranty Disclaimers. Except to the extent set forth under Section 3, CUSTOMER ACCEPTS THE SERVICES AND SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) COMPANY HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
9. INDEMNIFICATION.
Customer will defend, indemnify, and hold harmless Company and the Company Representatives (as defined below) against any “Indemnified Claim,” meaning any third Party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Users or by Customer’s employees, as well as by Customer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data, caused by Customer, its employees, subcontractors, agents and/or Registered Users; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content, including Excluded Data, uploaded to the System through Customer’s account, including without limitation by Customer Data; (d) claims that use of the System through Customer’s account harasses, defames, or defrauds a third Party; and (e) claims arising from a violation of law by Users, Customer or Customer’s employee. Indemnified Claims include, without limitation, claims arising out of or related to Customer’s negligence. Customer’s obligations set forth in this Section 9 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Company will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (“Company Representatives” mean Company’s officers, directors, managers, members, subcontractors, agents, successors, and assigns and those of any affiliate of the Company.)
10. LIMITATION OF LIABILITY.
10.1. Exclusion of Consequential Damages. IN NO EVENT WILL COMPANY BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT INCLUDING WITHOUT LIMITATION THE SYSTEM OR SERVICES.
10.2. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF COMPANY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 10, Company’s liability will be limited to the maximum extent permissible, and in any case the Company’s monetary liability under the Agreement to Customer and others, in the aggregate, shall not exceed the Fees paid by Customer for the Service during the 12-month period immediately preceding the event or circumstance giving rise to Customer’s claim. For the avoidance of doubt, Company’s liability limits and other rights set forth in this Section 10 apply likewise to Company Representatives.
11. TERM & TERMINATION.
11.1. Term. The Agreement shall remain in effect for the Term, and, unless expressly provided otherwise in the Service Order, automatically renews for successive periods equal to the Term until the End Date next-following 15 days’ advanced written notice of Party to terminate the Agreement.
11.2 Termination for Cause. Notwithstanding Section 11.1: (a) either Party may terminate the Agreement for the other’s breach of the Agreement by written notice (“Notice of Breach”) which specifies in reasonable detail the nature of the breach and the steps required to cures it, effective (i) if curable, 30 days after the date such notice is delivered (or more if specified in the notice) unless the other Party cures the breach within such time, unless (ii) if not curable or the subject of a prior Notice of Breach (as determined by Company), on the date such notice is delivered; and (b) the Agreement terminates automatically, without notice, upon Customer’s failure to comply with any restriction stated in Section 5.1. Customer shall notify Company if and when it knows or reasonably should know of any such failure.
11.3. Effects of Termination. Upon termination of the Agreement, all rights and obligations of the Agreement, including (without limitation) Customer’s right to access and use the System and all Services, will cease and Customer shall delete, destroy, or return all copies of the Documentation in its possession or control, except that the following provisions will survive any termination of the Agreement: (a) all payment obligations of Customer accruing before the end of the Term until paid in full; and (b) the terms of Sections 1, 5.6 (for 3 months), 6, 7, 8.4 – 8.6 and 9 – 13 inclusive.
12. MISCELLANEOUS.
12.1. Independent Contractors. The Parties are independent contractors and will so represent themselves in all regards. Neither Party is the agent of the other, and neither may make commitments on the other’s behalf.
12.2. Notices. Company may send notices pursuant to this Agreement to Customer’s email contact points stated in the Service Order, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to [email protected] (for technical support) or [email protected] (for all other support) and such notices will be deemed received on the date they are received.
12.3. Force Majeure. A Party (the “Claiming Party”) will be excused from a delay in performing, or a failure to perform, (other than a delay or failure to pay fees when due) its obligations under this Agreement to the extent such delay or failure is caused by a Force Majeure Event. A “Force Majeure Event” means acts of war, terrorism, hurricanes, earthquakes, other acts of God or ofnature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, pandemic or other causes beyond the Claiming Party’s reasonable control.
(a) Upon the occurrence of a Force Majeure Event, the Claiming Party’s performance times for obligations affected by the Force Majeure Event shall be extended for a period of time lost due to the Force Majeure Event. No Force Majeure Event shall relieve the Claiming Party from performing any obligations in this Agreement not affected by the Force Majeure Event. The Claiming Party shall be excused from the performance of those obligations affected by the Force Majeure Event, if: (i) within five (5) days after occurrence of a claimed Force Majeure Event, the Claiming Party gives written notice required by Section 12.2 (“Notice”) which described the event and all obligations of Claiming Party hereunder affected thereby; and (ii) within five (5) days of giving such Notice the Claiming Party furnishes evidence which proves the occurrence of the event and the causal connection between the event and the obligations affected thereby.
(b) The suspension of the Claiming Party’s performance shall be no greater in scope and no longer than is required by the Force Majeure Event.
(c) The Claiming Party shall continually use commercially reasonable efforts to mitigate the cause and effect of the Force Majeure Event and resolve the Force Majeure Event as soon as practicable, and upon resolution thereof give Notice thereof to the other Party.
12.4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Company’s express written consent which shall not be unreasonably withheld. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the Parties’ respective successors and permitted assigns.
12.5. Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
12.6. No Waiver. Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
12.7. Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of California, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the Parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws.
12.8. Conflicts. In the event of any conflict between these Terms and Conditions of Service and any Company policy posted online, including without limitation the Privacy Policy, the terms of these Terms and Conditions of Service will control. The terms of the Service Order will control over any directly conflicting term of such policies and these Terms and Conditions of Service.
12.9. Construction. The Parties agree that the terms of the Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either Party by reason of authorship. The term “Section” or “Section” means, with respect to a numbered paragraph, the terms of the paragraph so numbered and any subparagraphs thereof.
12.10. Compliance with U.S. Export Laws. Exports of any products, materials and data exchanged under the Agreement (if any) may be subject to the export laws of the United States including the United States International Traffic in Arms Regulations (the “ITAR” as defined in 22 CFR 120-130), the Export Administration Regulations (as defined in 15 CFR 730-774), the Export Administration Act, the Trading with the Enemy Act, and the International Emergency Economic Powers Act. Customer agrees to not export, re-export, disclose or transfer any such materials or data directly or indirectly without compliance with these and any other applicable laws and regulations. Customer recognizes that providing, in any manner, information constituting “technology” and/or “technical data” (as defined at 15 CFR 772; 22 CFR 120.10) to a foreign person, as defined in the ITAR at 22 CFR 120.16, is an “export” that may require prior authorization and licensing from the United States Government. Customer agrees and warrants that no regulated product, materials or technical data exchanged between the Parties (if any) shall be accessed or provided, in any manner, to foreign persons in the United States or abroad without prior, written authorization as required by the United States Government.
12.11 Digital Signatures. Any signature (including any electronic symbol or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record) to this Agreement or to any other certificate, agreement or document related to this Agreement, and any contract formation or record-keeping through electronic means shall have the same legal validity and enforce-ability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, and the Parties hereby waive any objection to the contrary.
12.12 Counterparts. The Service Order may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart by facsimile or in PDF shall be as effective as delivery of a manually executed counterpart of the Service Order.
13. DESPUTE RESOLUTION.
13.1 Negotiation; Mediation.
(a) In the event of any dispute or disagreement between the Parties as to the interpretation of any provision of this Agreement (or the performance of obligations under this Agreement), the matter, on written request of either Party, will be referred to each Party’s Chief Financial Officer (or officer serving in a similar capacity if it does not have an officer with such title) or his or her designee (the “Representatives”). The Representatives will promptly meet in a good faith effort to resolve the dispute. If the Representatives do not agree upon a decision within fifteen (15) calendar days after reference of the matter to them, each Party is free to exercise the remedies available to it under Section 13.2.
(b) The Representatives may, if they desire, agree to undertake mediation and may, if they choose, do so in accordance with the commercial mediation rules of the American Arbitration Association (“AAA”), either as written or as modified by mutual agreement. A written agreement to undertake mediation may be made at any time. If arbitration proceeds have been instituted, they will be stayed until the mediation process is terminated.
13.2 Arbitration.
(a) Any controversy, dispute or claim arising out of or relating in any way to this Agreement or the transactions contemplated by this Agreement that cannot be resolved by negotiation or mediation pursuant to Section 13.1 will be settled exclusively by final and binding arbitration in Orange County, California. Such arbitration will apply the laws of the State of California and the commercial arbitration rules of AAA to resolve the dispute.
(b) Such arbitration will be conducted by one independent and impartial arbitrator to be selected by mutual agreement of the Parties, if possible. If the Parties fail to reach agreement regarding appointment of an arbitrator within thirty (30) days following receipt by one Party of the other Party’s notice of arbitration, the arbitrator will be selected from a list or lists of proposed arbitrators submitted by AAA. Unless the Parties agree otherwise, the arbitrator will be a former or retired judge of the California Superior Court or any higher court in California. The selection process will be that which is set forth in the AAA commercial arbitration rules then prevailing, except that (A) the number of preemptory strikes will not be limited and (B) if the Parties fail to select an arbitrator from one or more lists, AAA will not have the power to make an appointment but will continue to submit additional lists until an arbitrator has been selected. Initially, however, promptly following its receipt of a request to submit a list of proposed arbitrators, AAA will convene the Parties in person or by telephone and attempt to facilitate their selection of an arbitrator by agreement. If the arbitrator should die, withdraw or otherwise become incapable of serving, a replacement will be selected and appointed in a like manner.
(c) The arbitrator will render an opinion setting forth findings of fact and conclusions of law with the reasons therefor stated. A transcript of the evidence adduced at the hearing will be made and will, upon request, be made available to either Party. The fees and expenses of the arbitrator will be shared equally by the Parties and advanced by them from time to time as required; provided that at the conclusion of the arbitration, the arbitrator will award costs and expenses to the prevailing Party in the arbitration (including the costs of the arbitration previously advanced and the fees and expenses of attorneys, accountants and other experts as detailed below). The arbitrator will render his or her award within ninety (90) days of the conclusion of the arbitration hearing. The arbitrator will not be empowered to award to either Party any damages not constituting Damages hereunder in connection with any dispute between them arising out of or relating in any way to this Agreement or the other agreements contemplated hereby or the transactions arising hereunder or thereunder, and each Party hereby irrevocably waives any right to recover such damages. The prevailing Party will be awarded reasonable attorneys’ fees, expert and non-expert witness costs and expenses, and other costs and expenses incurred in connection with the arbitration. Costs and fees of the arbitrator (including the cost of the record of transcripts of the arbitration) will be borne by the non-prevailing Party. The arbitration hearings and award will be maintained in confidence.
(d) Notwithstanding anything to the contrary provided in this Section 13 and without prejudice to the above procedures, either Party may apply to any court of competent jurisdiction for temporary injunctive or other provisional judicial relief or to specifically enforce the terms of this Agreement if such action is necessary to avoid irreparable damage or to preserve the status quo until such time as the arbitrator is selected and available to hear such Party’s request for temporary relief. The award rendered by the arbitrator will be final and not subject to judicial review and judgment thereon may be entered in any court of competent jurisdiction.