Terms of Use – 08-01-22

Version Date: August 1, 2022

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This Terms of Use Agreement (“Agreement”), including (as applicable) the Data Processing Addendum (“DPA”) available at https://metadata.io/data-processing-addendum, is entered into by and between Metadata, Inc. (“Company”) and your company (“Customer”). This Agreement governs the use by Customer of the data augmentation, intelligence, campaign and other services provided by Company and/or Company’s contractors (“Company Services”) more specifically described in an Order Form that references this Agreement (“Order Form”). An Order Form may be in any form that describes the Company Services ordered by Customer, as well as the fees and schedule for such Company Services, and is accepted by Company and Customer. An Order Form may be in the form of a standard order form, proposal or other similar documentation. The Effective Date of this Agreement shall be the date that Customer and Company first enter into an Order Form. PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING THE “I ACCEPT BUTTON ”, EXECUTING AN ORDER FORM WITH COMPANY FOR THE COMPANY SERVICES THAT MAKES REFERENCE TO THIS AGREEMENT, OR ACCESSING OR USING ANY OF THE COMPANY SERVICES, CUSTOMER REPRESENTS THAT (1) CUSTOMER HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THIS AGREEMENT, (2) CUSTOMER IS OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY, AND (3) CUSTOMER HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE COMPANY SERVICES. 

1. Definitions

“Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer to access the Company Services.

“Authorized User” means each of Customer’s employees, agents, and independent contractors who are authorized to access the Company Services pursuant to Customer’s rights under this Agreement.

“Content” means all information, in whatever form, including articles, case studies, images, stories, creative advertising, commentary, video, music, photographs, logos, trademarks, custom embedded objects and all other forms of media provided by Customer and its Authorized Users to Company in connection with Customer’s use of the Company Services.  Customer Data is included in, and a subset of, Content.

“Documentation” means the technical materials provided by Company to Customer in hard copy or electronic form describing the use and operation of the Company Services.

“End Users” means individuals who view, receive, and access messages, content, and other communications delivered by or on behalf of Customer in connection with Customer’s use of the Company Service.

“Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.

“Professional Services” means professional services provided by Company to Customer as described in any Order Form, including services relating to, but not limited to, creative asset creation, animated ads, ad copywriting, video production, and Content strategy working sessions.

2. Intellectual Property and Licenses 

In order for Company to provide the Company Services, Customer agrees to integrate Customer’s CRM and marketing automation platform (the “Customer Data”) with the Company Services for the term of this Agreement. Such integration will enable Company to provide to Customer additional third party or derived data points that augment the Customer Data, including data points for prospects that are similar to the customers contained in the Customer Data (the “Supplementary Data”).

Subject to all of the terms and conditions herein, Company hereby grants to Customer a non-exclusive, nontransferable, non-assignable (except pursuant to Section 15), non-sub-licensable license during the term of this Agreement and any Order Form to use the Supplementary Data solely for Customer’s internal business purposes. Customer shall not transfer the Supplementary Data to third parties, except to its service providers and its Authorized Users that are bound by confidentiality and use restrictions that prohibit the further disclosure of such data to third parties and prohibit the use of such data for any purpose other than for the benefit of Customer within the license rights granted in this Agreement.

The Content, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. All rights in and to the Content not expressly granted to Company in this Agreement are reserved by Customer.  Customer hereby grants to Company a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, fully paid up right and license to make, have made, use, sell, reproduce, distribute, transmit, publish, modify, display, access, import, export, sublicense, and make derivative works of any Content (1) as necessary to perform the Company Services; (2) to provide services to publishers of the Content or as otherwise set forth herein; (3) in an aggregated and anonymized form to: (i) improve the Company Services and Company’s related products and services; (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding use of the Company Services, provided, however, that no Customer-only statistics will be disclosed to third parties without Customer’s consent. Additionally, Customer grants Company a non-exclusive, worldwide, royalty-free and fully paid license during the term to use the Customer’s trademarks, service marks, and logos as required to provide the Company Services.

Customer acknowledges that the Company Services, Supplementary Data, and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Company and its suppliers. All rights in and to the Company Services and Documentation not expressly granted to Customer in this Agreement are reserved by Company and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Company Services, Supplementary Data, Documentation, or any part thereof.

Customer represents that Customer has all rights (including consents and licenses) needed for Customer to grant Company the license to use the Content as described in this Agreement. Customer represents and warrants that any Content will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Company’s system or data; and (e) violate any third-party rights, including any privacy rights, or any laws, regulations, or obligations imposed by any third party. Customer agrees that any use of the Company Services contrary to or in violation of the representations and warranties of Customer in this Section constitutes unauthorized and improper use of the Company Services.

Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Content.  Customer shall keep Content updated, including removing access for former employees.  Unless required by applicable law, upon a termination of this Agreement, Company shall not retain any of the Content. Customer shall input the necessary credentials in order to authorize the required API integrations for Company to access Customer Data solely to the extent necessary to provide Company Services. Such access is required for Metadata to provide Company Services. Such credentials and Customer Data may be retained by Company Services for the term of the Agreement. Customer represents that it and its Authorized Users have proper authority to permit Company to utilize such credentials for such purpose.  Company is not obligated to back up any Content; the Customer is solely responsible for creating backup copies of any Content at Customer’s sole cost and expense. 

3. Restrictions

Customer represents and warrants that Customer and its Authorized Users will use the Company Services and all Customer Data in strict compliance with all foreign, federal, state and local laws, rules and regulations, including, without limitation, those regulating marketing, advertising, security, and privacy, such as the Telephone Consumer Protection Act, the Telemarketing Sales Rule and “Do Not Call” regulations, the Federal Trade Commission Act, the CAN-SPAM Act of 2003, and all other foreign, federal, state and local laws, rules and regulations. Company is not responsible for, and shall in no event have any liability for or in connection with, Customer’s use of the Company Services or Customer’s use or other processing of Customer Data.

Customer, and Customer shall ensure that its Authorized Users, shall use the Supplementary Data strictly in accordance with the terms of this Agreement and, as applicable, the DPA, and shall not: (a) violate any applicable laws, rules or regulations in connection with access to or use of the Supplementary Data; (b) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Company or its affiliates, partners, suppliers or the licensors of the Supplementary Data; (c) use the Supplementary Data for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for the Company Services; or (d) use the Company Services on behalf of a third party or as a service bureau. If Company informs Customer that a specified activity or purpose is prohibited, Customer will immediately cease processing of the Supplementary Data for the prohibited activity or purpose.  Customer acknowledges and agrees that Supplementary Data has not been collected for, and is not intended to be indicative of, any person’s employability, credit worthiness, credit standing, credit capacity, or other characteristics related to such person’s manner or mode of living, as listed in Section 603(d) of the Fair Credit Reporting Act (“FCRA”), 15 USC Section 1681a.

4. Intellectual Property and Provision of Company Services 

Company reserves the right at any time to modify or discontinue, temporarily or permanently, the Company Services (or any part thereof) with or without notice, including but not limited to due to channel service or data set or channel changes. In such case, Company will use commercially reasonable efforts to minimize any material adverse effects of such changes within thirty (30) days following receipt of written notice by Customer.  Customer agrees that Company shall not be liable to Customer or to any third party for any modification, suspension or discontinuance of the Company Services.

Company respects the Intellectual Property Rights of others and expects its customers to do the same.  In accordance with the Digital Millennium Copyright Act (“DMCA”) and Company’s copyright policy, Company reserves the right to promptly respond to any notice of alleged infringement that is reported to Company’s designated copyright agent, including, but not limited to, removing any Content without notice, and Company reserves the right to refer the claims of the complaining party and the identity of the Customer to the United States Copyright Office as provided under the DMCA.  Customer hereby acknowledges and agrees that Company will have no liability whatsoever to Customer or any other third party for any reasonable removal of such Content.  Furthermore, Customer agrees to designate an agent to accept any notice of claimed infringement and to fully comply with its obligations under the DMCA.

Subject to Customer’s payment of the fees set forth in the applicable Order Form, Customer will have access to the Company Services and will be responsible for all changes to and/or deletions of Customer’s Content and/or campaigns and the security of all passwords and other Access Protocols required in order to access the Company Services. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Content.

Company may, but is not obligated to, monitor or review Customer’s use of the Company Services and Content at any time. Without limiting the foregoing, Company shall have the right, in its sole discretion, to remove any of Content for any reason (or no reason), including if such content violates the Agreement or any applicable law.  Although Company does not generally monitor Customer’s activity occurring in connection with use of the Company Services or Content, if Company becomes aware of any possible violations by Customer or its Authorized Users of any provision of the Agreement, Company reserves the right to investigate such violations, and Company may, at its sole discretion, immediately suspend your license to use Company Services, or change, alter or remove Content, in whole or in part, without prior notice to you.

Any questions, comments, suggestions, ideas, feedback or other information about the Company Services provided by Customer to Company are non-confidential and Company (as well as any designee of Company) shall be entitled to the unrestricted use and dissemination of such information for any purpose, commercial or otherwise, without acknowledgment or compensation to Customer.

5. Campaigns, Professional Services, and Third Party Content 

Company is not an advertising agency. Customer may request, pursuant to an Order Form, that Company perform certain advertising campaign activities. As part of such activities, Company may set up advertising channels and other services through which the campaigns will be conducted. Company will provide Customer with the credentials for all such accounts. Customer authorizes Company to enter into certain agreements and/or to make transactions electronically on behalf of Customer to facilitate the effective use of the Company Services, such as any transactions for campaign optimization that occur in high volumes daily.

Charges for campaigns conducted under such accounts will be paid for by Customer via a Customer credit card or other method required by the service.  The campaign spend may include operational fees such as charges from Data Management Platforms (DMPs), Demand-Side Platforms (DSPs), and advertising networks, all such charges will be incorporated into the programmatic ad spend and associated metrics such as CPM, CPC, and CPL.  Customer is responsible for managing its campaign budgets. Because Company will not be serving as the billing administrator for such campaign accounts, Company shall not be responsible for any excess expense incurred.

Where the parties have agreed to Company’s provision of Professional Services, the details of such Professional Services will be set out in an Order Form.  The Order Form will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the fees applicable for the performance of the Professional Services. Each Order Form will incorporate the terms and conditions of this Agreement.  To the extent that a conflict arises between the terms and conditions of an Order Form and the terms of this Agreement, the terms and conditions of the Order Form shall govern, solely with respect to such Order Form.

The parties agree and acknowledge that Company may, pursuant to separate mutually executed Order Form, utilize third party service providers to facilitate specified creative advertising content creation on behalf of the Customer (“Third Party Content”).  These third parties may provide content including but not limited to articles, case studies, stories, photographs, images, infographics, video, and custom embedded objects. Customer expressly understands and agrees that as between Company and Customer, all Third Party Content is provided “AS-IS” and at Customer’s sole risk. 

6. Fees and Payments

Fees for the Company Services are set forth in the applicable Order Form. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes imposed on Company’s net income). In the event Company pays any such taxes and has not collected them previously from Customer, Customer shall promptly reimburse Company.

Customer hereby authorizes Company to charge Customer’s payment method without requiring authorization for each charge. Under circumstances where Customer is invoiced, then payment is due within thirty (30) days of receipt of an invoice. For late payments, including where Customer’s payment method fails to make payment, then Company may apply an immediate charge equal to the greater of one percent (1%) of the amount due and $50. Thereafter, Company may impose a one and one-half percent (1 ½ %) per month charge until payment is made. Customer will be responsible for reimbursing Company for any costs incurred by Company collecting overdue fees, including bank charges, attorneys’ fees, collection agency fees and related costs. Unless otherwise agreed, all charges and payments shall be in U.S. dollars.

7. Prohibited Activities

Customer may not use the Company Services for any other purpose other than that for which Company makes them available. Prohibited activity by Customer or its Authorized Users includes, but is not limited to:

1. using or permitting others to use any Supplementary Data (i) in connection with credit granting, credit monitoring, account review, collection, insurance underwriting, employment or for any other purpose covered by the FCRA, 15 USC Section 1681b, or any similar statute, (ii) for any form of debt collection, (iii) as the sole source of data for hard background check purposes, (iv) for a government license or benefit, or (vi) for any purpose other than business-to-business marketing activities.
2. criminal or tortious activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, copyright infringement, patent infringement, or theft of trade secrets;
3. engaging in unlawful multi-level marketing (such as a pyramid scheme);
4. using any information obtained from the Company Services, including Supplementary Data, in violation of applicable laws, rules or regulations, including (without limitation) in order to solicit or sell to anyone without having provided any required notices, obtained any necessary consents, and/or established an appropriate legal basis where required by applicable laws;
5. attempting to impersonate another party or using the username of another party;
6. using any information obtained from the Company Services in order to harass, abuse, or harm another person;
7. using the Company Services as part of any effort to compete with Company or to provide services as a service bureau;
8. deciphering, decompiling, disassembling or reverse engineering any of the software comprising or in any way making up a part of the Company Services;
9. deleting the copyright or other proprietary rights notice from any Company Services; and
10. using the Company Services in a manner inconsistent with any and all applicable laws and regulations.

8. Confidentiality and Data Privacy

The parties each acknowledge that the other party treats its products, development processes, business methods, business information, and prices as confidential and that they constitute the commercially valuable proprietary products and/or services and trade secrets of the respective party, regardless of whether they may be copyrighted, patented or trademarked.

During the term of this Agreement, each party will learn or receive information about the other which the other treats as confidential, including but not limited to all business, marketing, financial and customer-related data (“Confidential Information”). Each party agrees that Confidential Information received from the other shall be treated as confidential and protected in the same manner as the receiving party treats its own confidential information (but in no event less than reasonable care). Each party agrees not to transfer, distribute or disclose to any third party any Confidential Information of the other, except as expressly authorized in writing by the other and shall confine knowledge and use of the Confidential Information received by the other to those of its directors, officers, and employees, (and in the case of Company, its contractors and professional advisors) (“Representatives”) who require such knowledge and use of the information in the ordinary course of and scope of their employment or engagement pursuant to or in connection with this Agreement; provided that any such Company Representatives are made aware of the obligations of confidentiality contained in this Agreement and the receiving party remains liable for the acts and omissions of such Representatives in connection with such obligations. Confidential Information may only be used by the receiving party for the purpose for which such Confidential Information was disclosed by the disclosing party or as authorized under this Agreement. Notwithstanding the foregoing, Confidential Information shall not include information which (i) except with respect to Personal Data (as defined in the DPA) has entered the public domain by no action of the receiving party hereunder, (ii) was already rightfully in the possession of the receiving party when disclosed by the disclosing party, (iii) is received from a third party without breach of any obligation owed to the disclosing party or (iv) was developed independently by the receiving party by individuals without access to the disclosing party’s information.

The receiving party may disclose Confidential Information of the disclosing party if it is compelled by law to do so, provided the receiving party gives the disclosing party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure. If the receiving party is compelled by law to disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, and the disclosing party is not contesting the disclosure, the disclosing party will reimburse the receiving party for its reasonable cost of compiling and providing secure access to such Confidential Information.

The obligations of the parties with regard to the Confidential Information that constitutes trade secrets shall remain in effect for as long as such Confidential Information shall remain a trade secret under applicable law. All other Confidential Information shall remain protected during the term of this Agreement and for three (3) years thereafter.

The parties acknowledge that the damages for unauthorized and/or improper disclosure of the Confidential Information of the other party may be irreparable; therefore, the parties may seek equitable relief, including injunction and preliminary injunction for such alleged breaches.

Company and Customer agree that, to the extent any Supplementary Data that Company provides to Customer under this Agreement or any Customer Data that Customer provides or makes available to Company under this Agreement includes or contains Personal Data (as such term is defined in the DPA), the DPA located at https://metadata.io/data-processing-addendum shall apply and shall govern the Processing (as defined in the DPA) of any such Personal Data. In the event of any conflict between the Agreement and the DPA with respect to Customer Data or Supplementary Data, the DPA shall control. For the avoidance of doubt, in the event of a conflict between this Agreement and a separately executed non-disclosure agreement, this Section 8 shall control with respect to any information exchanged under this Agreement.

9. Term and Termination; Suspension

Either party may terminate this Agreement upon written notice if the other party commits a material breach which is not cured within five (5) days from written notice. If no Order Form is in effect under this Agreement for a period of more than one hundred eighty (180) days, this Agreement shall automatically terminate. The parties agree that if this Agreement is assigned by Customer to a Competitive Entity (as defined below), or if a Competitive Entity acquires a controlling interest in Customer, then Customer shall notify Company of such assignment or transaction within ten (10) business days following its occurrence. Company shall have the right to terminate this Agreement, without recourse or refund, upon thirty (30) days’ written notice, so long as such notice is given within sixty (60) days of the consummation of such assignment or transaction. As used above, a “Competitive Entity” is any company that is a direct competitor to Metadata, Inc.

Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.

In the event of any breach or threatened breach of this Agreement by Customer (including non-payment of fees), without limiting Company’s other rights and remedies, Company may immediately, with written notice (email is sufficient) suspend Customer’s access to the Company Services.

Upon any termination, Customer shall pay any unpaid fees covering the Company Services rendered. In no event shall termination by Customer or Company relieve Customer of the obligation to pay any fees payable to Company for the period prior to the effective date of termination.

In the event of any material breach of this Agreement by Company which results in Customer’s termination of this Agreement, Customer shall be entitled to a prorated refund of any unused prepaid fees to be paid in accordance with the net payment terms specified in the applicable Order Form(s).

10. Disputes

All questions of law, rights, and remedies regarding any act, event or occurrence undertaken pursuant or relating to the Company Services shall be governed and construed by the law of the State of California, excluding such state’s conflicts of law rules.  Any legal action of whatever nature arising out of or related in any respect to this Agreement shall be brought solely in either the applicable federal or state courts located in or with jurisdiction over San Francisco, California; subject, however, to the right of Company, at the Company’s sole discretion, to bring an action to seek injunctive relief to enforce this Agreement or to stop or prevent an infringement of proprietary or other third party rights (or any similar cause of action) in any applicable court in any jurisdiction where jurisdiction exists with regard to Customer. The parties hereby consent to (and waive any challenge or objection to) personal jurisdiction and venue in the above-referenced courts. Application of the United Nations Convention on Contracts for the International Sale of Goods is excluded from this Agreement. Additionally, application of the Uniform Computer Information Transaction Act (UCITA) is excluded from this Agreement. In no event shall any claim, action or proceeding by either party related in any way to the Company Services be instituted more than two (2) years after the cause of action arose.

11. Warranties and Disclaimers

Company represents and warrants: (a) it has the full power, capacity and authority to enter into and perform this Agreement and to make the grant of rights contained herein; and (b) it will operate the Company Services in a professional and competent manner using properly qualified and trained employees.

Customer represents and warrants: (a) it has the full power, capacity and authority to enter into and perform this Agreement and to make the grant of rights contained herein; (b) its performance of this Agreement does not and will not violate or conflict with any agreement to which Customer is a party; (c) its performance under this Agreement and all Content shall at all times comply with all applicable federal, state and local laws, rules, and regulations, or guidance; (d) there is no pending or threatened litigation that would have a material adverse impact on its performance under this Agreement; (e) it has all rights, licenses, and permissions, including that it has provided all required notices and obtained all necessary consents and/or established an appropriate legal basis where required by applicable law, to provide the Content using the Company Services and to enable Company’s use, disclosure and other processing of such Content as contemplated under this Agreement; (f) the Content does not target children under the age of thirteen (13) and, based on the overall content of the websites targeted for the native advertising, is not likely to attract children under such age as its primary audience and it does not have actual knowledge that it is collecting any personal information (as defined under the Children’s Online Privacy Protection Act) directly from users of child-directed websites; (g) the Content shall not contain any obscene, defamatory, pornographic, libelous, sexually explicit, illegal, offensive, deceptive, or other prohibited material; (h) the Content shall not infringe the intellectual property rights of any third party; (i) the Content shall not contain any software viruses, worms, Trojan horses, time bombs, cancelbots or other harmful computer code, files, scripts, agents, programs or programming routines; (j) the Content shall at all times comply with the applicable publisher’s terms of use, rules, and other requirements; and (k) Customer will not use the Company Services (i) to deliver or operate emergency support lines, (ii) to support critical infrastructure, or (iii) in connection with or related to high risk activities.

CUSTOMER AGREES THAT USE OF THE COMPANY SERVICES WILL BE AT CUSTOMER’S SOLE RISK AND THAT THE COMPANY SERVICES AND SUPPLEMENTARY DATA ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE COMPANY SERVICES AND SUPPLEMENTARY DATA, AND CUSTOMER’S USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE COMPANY SERVICES AND SUPPLEMENTARY DATA AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF SUPPLEMENTARY DATA, (B) EXCEPT TO THE EXTENT OF ANY BREACH OF THIS AGREEMENT OR THE DPA BY COMPANY, ANY UNAUTHORIZED ACCESS TO OR USE OF SECURE SERVERS AND/OR ANY AND ALL INFORMATION, INCLUDING (WITHOUT LIMITATION) PERSONAL DATA AND/OR FINANCIAL INFORMATION, STORED THEREIN, (C) ANY INTERRUPTION OR CESSATION OF THE COMPANY SERVICES, (D) FAILURE OF THE COMPANY SERVICES TO MEET CUSTOMER REQUIREMENTS OR SALES EXPECTATIONS, AND/OR (E) EXCEPT TO THE EXTENT OF ANY BREACH OF THIS AGREEMENT OR THE DPA BY COMPANY, ANY ERRORS OR OMISSIONS OR VIRUSES IN ANY COMPANY SERVICES OR SUPPLEMENTARY DATA.

12. Limitations of Liability

IN NO EVENT SHALL EITHER PARTY OR ITS DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, COMPANY’S LIABILITY TO CUSTOMER FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID BY CUSTOMER TO COMPANY FOR THE COMPANY SERVICES DURING THE PERIOD OF TWELVE (12) MONTHS PRECEDING THE ACT THAT GAVE RISE TO THE LIABILITY. THE LIMITATIONS OF LIABILITY IN THIS SECTION DO NOT APPLY TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS OR CLAIMS ARISING FROM EITHER PARTY’S WILLFUL MISCONDUCT.

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO CUSTOMER, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO CUSTOMER, AND CUSTOMER MAY HAVE ADDITIONAL RIGHTS.

13. Indemnification 

Company will defend, at its expense, any claim or suit brought against Customer, and will indemnify and hold Customer harmless with respect to any settlement Company makes or approves, or any damages finally awarded in such claim or suit, insofar as such claim or suit is based on a claim by any third party alleging that the Company Services infringe any copyright, title, slogan, trademark, trade name, trade dress, service mark or service name of such third party under the applicable laws of any jurisdiction within the United States of America. If any portion of the Company Services becomes, or in Company’s opinion is likely to become, the subject of such claim of infringement, Company may, at Company’s option: (a) procure for Customer the right to continue using the Company Services; (b) replace the Company Services with non-infringing software or services which do not materially impair the functionality of the Company Services; (c) modify the Company Services so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Company Services. Notwithstanding the foregoing, Company will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the Company Services not in accordance with this Agreement; (ii) any use of the Company Services in combination with other products, equipment, software or data not supplied by Company; or (iii) any modification of the Company Services by any person other than Company or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This section states the sole and exclusive remedy of Customer and the entire liability of Company, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.

Customer will defend at its expense, any claim or suit brought against Company, and will indemnify and hold Company harmless with respect to any settlement Customer makes or approves, or any damages finally awarded in such claim or suit, insofar as such claim or suit is based on a claim arising out of or relating to (a) an Exclusion, (b) Customer’s or its Authorized User’s breach or alleged breach of Section 2 (Intellectual Property and Licenses) (c) Customer’s breach of law, and (d) any claims by End Users or claims related to Company’s permitted use of Customer Data (other than to the extent resulting from Company’s breach of this Agreement). This section states the sole and exclusive remedy of Company and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.

The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit. Notwithstanding the foregoing, the indemnifying party shall be relieved from its indemnification obligation only to the extent its ability to defend or settle the claim has been prejudiced as a result of late notice or lack of cooperation with respect to the claim.

14. Data Retention

Although Company performs regular routine backups of data, Customer is primarily responsible for all data that Customer has transferred or that relates to any activity Customer has undertaken using the Company Services.

15. Miscellaneous

This Agreement constitutes the entire agreement between Customer and Company regarding the use of the Company Services. This Agreement may only be modified by written agreement of the parties. No text or information set forth on any other purchase order, preprinted form or document (other than a mutually executed Order Form) shall add to or vary the terms and conditions of this Agreement. No joint venture, partnership, employment, or agency relationship exists between Customer and Company as a result of this Agreement or use of the Company Services. The failure of either party to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. This Agreement may not be assigned by Customer without Company’s express written consent, provided that Customer shall be permitted to assign this Agreement without such consent to an acquirer of Customer’s business relating to this Agreement effected by merger, acquisition, corporate reorganization or sale of all or substantially all of its assets. Company may assign any or all of its rights and obligations to others at any time. Company shall not be responsible or liable for any loss, damage, delay or failure to act caused by any cause beyond Company’s reasonable control.  If any provision or part of a provision of this Agreement is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions. Upon Company’s request, Customer will furnish Company any documentation, substantiation or releases necessary to verify Customer’s compliance with this Agreement. Notices sent pursuant to this Agreement will be deemed effective upon verifiable receipt. Company will be entitled to display Customer’s corporate name and logo on Company’s website and marketing materials and to identify Customer as a Company customer. For contractual purposes, Customer (a) consents to receive communications from Company in an electronic form; and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to Customer electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect Customer’s statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).

Updated August 1, 2022 – Click Here for Prior Terms of Use