These Terms of Service constitute a legally binding agreement between Client and Company governing your use of the services (the “Services”) set forth in one or more Order Forms entered into by the Parties. The Parties agree to the supplemental terms set forth in each Order Form, including any applicable attachments, addenda, or other such documents, and each Order Form, when executed by the Parties, will form a part of and be incorporated into these Terms of Service (this “Agreement”) and be subject to the terms and conditions set forth herein. All capitalized terms used but not defined in these Terms of Service have the meaning assigned to such terms in the applicable Order Form.
- SAAS SERVICES AND SUPPORT.
- During the Term of this Agreement, and subject to the terms herein, Company will use commercially reasonable efforts to provide Client the Services described on one or more Order Forms.
- Subject to the terms, conditions and limitations set forth in Agreement, Company grants Client a limited, nonexclusive, personal, nontransferable, nonsublicensable, revocable license for authorized employees, contractors, and volunteers of Client (each, an “Authorized User,” and, collectively, the “Authorized Users”) to access and use the Services during the Term (as defined below). For the avoidance of doubt, Client shall not provide access to the Services to any third party that is not an Authorized User without Company’s prior written approval.
- Subject to the terms hereof, Company will provide Client with reasonable technical support in connection with the Services in accordance with Company’s standard practice.
- RESTRICTIONS AND OBLIGATIONS.
- Client shall register to use the Services by providing certain profile and contact information to Company, which will be used to create a Client account (a “Client Account”). Client Accounts will be accessible to Authorized Users through individual access credentials. Each Authorized User shall have independent access credentials unless otherwise specified in the applicable Order Form. Client and Authorized Users are responsible for maintaining the accuracy of registration information and the confidentiality of their usernames and passwords and shall not share usernames or passwords with anyone, including other employees of Client that are not Authorized Users. Company reserves the right to refuse registration of or cancel Client Accounts and/or Authorized User Accounts it deems inappropriate or not in compliance with its Policy (as defined in Section 7 of the Agreement) or the End User Terms of Service.
- In connection with furnishing the Services, Company may provide Client access to certain data collected by Company (“OpenField Data”) or licensed to Company by third-party service providers (such third-party service providers, “Data Providers”, and such third-party data, “Third Party Data”, and together with OpenField Data, “Company Data”) and provided to Client via the Services. Company and/or its licensors, as applicable, shall own and retain all right, title and interest in and to (a) the Company Data, (b) the Services and Software (defined below), and all improvements, enhancements or modifications thereto, (c) any software, applications, inventions or other technology developed in connection with implementation services or support, and (d) all intellectual property rights related to any of the foregoing. Except as expressly stated herein, nothing herein assigns, or will be deemed to assign, a Party’s ownership rights in its property.
- Client acknowledges and agrees that: (i) all or portions of Third Party Data provided to Client may be subject to use restrictions from Data Providers or the Company that may require Client to sign one or more addenda to this Agreement from time to time agreeing to comply with such use restrictions (a “Data Use Addendum”); (ii) if Client declines to sign such Data Use Addendum when required, this may prevent Company from providing or impair Company’s ability to include such Third Party Data in the Company Data provided to Client, which may limit the functionality of the Services; (iii) neither the Company nor any Data Providers will have any liability under this Agreement relating to the inability of Company to provide the Services as a result of Client’s failure to sign any required Data Use Addendum; (iv) Client will not export, download or remove from the Services or Software any Third Party Data, except as explicitly authorized by the applicable Data Use Addendum; (v) Client will not sell, copy, modify, or distribute any Third Party Data; and (vi) Client will consent to the applicable Data Use Addendum prior to accessing the applicable Third Party Data. Any Data Use Addendum, when executed, will be incorporated into this Agreement by reference.
- In connection with its use of the Services, Client may provide Company with certain non-public data collected by or licensed to Client (“Client Data”). Client hereby grants Company the nonexclusive license to access and use the Client Data to (i) provide the Services during the Term, (ii) reproduce, modify, store, and create derivative works based on such Client Data and (iii) to improve and enhance the Software and Services. Client and/or its licensors, as applicable, shall retain all right, title and interest in and to the Client Data. By making available Client Data for use in connection with the Services, Client warrants that it has all rights, licenses and consents necessary to provide the Client Data to Company for use in connection with, and for the purposes contemplated by the Services, including without limitation any consents required under any applicable data protection law or regulation (“Data Protection Legislation“).
- Client will not, directly or indirectly: (i) interfere or attempt to interfere with or disrupt the Services or attempt to gain access to any systems or networks that connect thereto; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); (iii) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); (iv) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (v) remove any proprietary notices or labels.
- Further, Client may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury, Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
- Client represents, covenants, and warrants that Client will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”), which are incorporated herein by reference; these Terms of Service, and; all applicable laws and regulations. Additionally, Client acknowledges that the Services may include voter data, the use of which is governed by jurisdiction-specific statute (“Voter Data Laws”), and Client represents, covenants, warrants, and agrees that Client will use the Services in compliance with applicable Voter Data Laws, and shall be responsible for ensuring the compliance of its Authorized Users. Client hereby agrees to indemnify, defend and hold harmless Company against any claims, damages, losses, liabilities, settlements and expenses, including costs and attorneys’ fees (collectively, “Damages“) in connection with any third-party claim or action that arises from an alleged violation of the foregoing or otherwise from Client’s or Client’s Authorized Users use of Services. Although Company has no obligation to monitor Client’s or Client’s Authorized Users use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. or any restrictions, laws or regulations of the United States.
- Client shall be responsible for obtaining and maintaining Internet connectivity, and any equipment and ancillary services needed to connect to, access or otherwise use the Services, including modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Client shall also be responsible for maintaining the security of the Equipment, Client account, passwords, including administrative and user passwords and files, and for all uses of Client account or the Equipment with or without Client’s knowledge or consent. Client hereby agrees to indemnify, defend and hold harmless Company against any Damages in connection with any third-party claim or action that arises from Client’s Account.
- Company may monitor Client’s compliance with this Agreement, including without limitation the number of Authorized Users accessing the Services and the Client Data shared with Company.
- Nothing in this Agreement or in the Parties’ dealing arising out of or related to this Agreement will restrict Company’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit any suggestion or idea for improving or otherwise modifying the Services or the Software (“Feedback”) provided by Client or any Authorized User, without compensating or crediting Client, any Authorized User, or any other individual providing such Feedback, except to the limited extent that Section 3 (Confidentiality) governs Feedback that constitutes Client’s Proprietary Information (as defined below). Notwithstanding the provisions of Section 3 (Confidentiality), Client may not designate Feedback as its Proprietary Information to the extent such Feedback relates to the Services or the Software.
- Client shall ensure that all Authorized Users comply with the terms and conditions of this Agreement, including, without limitation, with Client’s obligations set forth in this Section. Client shall promptly notify Company of any suspected or alleged violation of the terms and conditions of this Agreement and shall cooperate with Company with respect to: (a) investigation by Company of any suspected or alleged violation of this Agreement and (b) any action by Company to enforce the terms and conditions of this Agreement. Company may suspend or terminate any Authorized User’s access to the Services with immediate effect upon notice to Client in the event that Company reasonably determines that such Authorized User has violated the terms and conditions of this Agreement. Client shall be liable for any violation of the terms and conditions of this Agreement, including violations of Authorized Users.
- Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes the terms of this Agreement and non-public information regarding features, functionality and performance of the Service. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by the Receiving Party prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
- Notwithstanding anything to the contrary, Company 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 including information concerning Client Data and data derived therefrom), and Company 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, Software and other Company offerings, and (ii) except as otherwise provided herein, disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES.
- Client will pay Company the then applicable fees set forth in the applicable Order Form for the Services and any implementation services in accordance with the terms therein (collectively, the “Fees”). If Client’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Client shall be billed for such usage and Client agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Client (which may be sent by email). If Client believes that Company has billed Client incorrectly, Client must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s Client support department.
- Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance 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 the Services. Client shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
5. TERM AND TERMINATION.
- Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the applicable Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (the Initial Service Term and all renewed terms are collectively referred to herein as, the “Term”), unless either Party requests termination at least thirty (30) days prior to the end of the then-current term.
- In addition to any other remedies it may have, either Party may also terminate this Agreement (i) upon thirty (30) days’ prior notice (or without notice in the case of nonpayment), if the other party breaches any of the material terms or conditions of this Agreement, provided that such breach is not cured within 10 days of receipt of written notice from the non-breaching party of such breach; or (ii) the other Party becomes insolvent or is the subject of any bankruptcy proceedings. Client will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER.
6.1 Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform any implementation Services set forth in the Order Forms in a reasonably professional manner. Services may be temporarily unavailable for scheduled maintenance, unscheduled emergency outages, and additional maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing, or verbally, of any scheduled service disruption.
6.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, COMPANY DOES NOT WARRANT THAT THE SERVICES OR THIRD-PARTY DATA WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR THIRD-PARTY DATA. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES, IMPLEMENTATION SERVICES, AND THIRD-PARTY DATA ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND COMPANY DISCLAIMS, ON BEHALF OF ITSELF AND DATA PROVIDERS, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICES, IMPLEMENTATION SERVICES AND THIRD-PARTY DATA.
7.1 Company shall indemnify, defend, and hold harmless Client and its officers, directors, and employees (the “Client Indemnified Parties”) from and against any and all liability, losses, damages, penalties, fines, costs, and expenses, including reasonably attorneys’ fees and other cost and expenses of litigation (“Losses”) based upon any claim, demand, suit, or proceeding (“”Claim”) brought by a third party against a Client Indemnified Party alleging infringement by the Services of any United States patent or any copyright or misappropriation of any trade secret; provided, however, Company is promptly notified of any and all Claims related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Client will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Company, (ii) made in whole or in part in accordance with Client specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Client’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Client a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Client’s rights hereunder and provide Client a refund of any prepaid, unused fees for the Service.
7.2 Client shall indemnify, defend, and hold harmless Company, its Data Providers, and their respective directors, officers, employees, licensors and agents (the “Company Indemnified Parties”) from and against any and all Losses based on a Claim brought by a third party against a Company Indemnified Party arising from or related to (a) any use of the Service by Client or Authorized Users (i) in breach of this Agreement, (ii) in contravention of any requirements, procedures, policies or regulations of Company or its Data Providers applicable to the Service and made known to Client or (iii) in violation of any applicable law or regulation or in violation of the legal rights of others, (b) Client’s non-compliance with Data Protection Legislation, (c) the Client Data, (d) violation of any Data Use Addendum, or (e) any content gathered by Company pursuant to a request from Client; provided, however, Client is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Company will not be responsible for any settlement it does not approve in writing. The foregoing obligation shall apply regardless of whether the damage is caused by the conduct of Client or its Authorized Users or by the conduct of a third-party using Client’s access credentials.
- LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.
EXCEPT FOR WITH RESPECT TO LIABILITY ARISING FROM A BREACH OF SECTION 3 (CONFIDENTIALITY), OBLIGATIONS UNDER SECTION 7 (INDEMNIFICATION), OR BODILY INJURY OF A PERSON, NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER OF THIS AGREEMENT EXCEED THE FEES PAID BY CLIENT TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
These Terms of Service shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to principles of conflicts of law. Notwithstanding anything to the contrary herein, the state and federal courts located in the State of California shall have exclusive jurisdiction to interpret this Agreement, to hear and decide any suit, action or proceeding, and to settle any dispute between the Parties, which may arise out of or in connection with this Agreement, and for these purposes, each party irrevocably submits to the exclusive jurisdiction of such courts. Each party irrevocably and expressly waives any objection which it might at any time have to these courts being the exclusive forum or venue to hear and decide and to settle any such dispute and agrees not to claim that these courts are not a convenient or an appropriate forum or venue. To the maximum extent of the law, the parties waive any right to a trial by jury.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Client except with Company’s prior, written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All modifications must be in a writing signed by both Parties, except as otherwise provided herein. The Parties are independent contractors. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the substantially prevailing party will be entitled to recover costs and attorneys’ fees from the other party. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. Any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement shall not apply to this Agreement. The headings of the Sections of this Agreement are for convenience only and shall not affect the meaning of any provision. Except as otherwise specified, references herein to “days” means calendar days. Any use of the term “including” and “include” in this Agreement shall be construed as if followed by the phrase “without limitation.” This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all counterparts together shall constitute a single agreement. The facsimile, email or other electronically delivered signatures of the Parties shall be deemed to constitute original signatures, and facsimile or electronic copies hereof shall be deemed to constitute duplicate originals.