Accepting this Agreement is done by: (a) executing an Order Form that references this Agreement; (b) clicking a box indicating acceptance; or (c) using the Services on a free trial basis, Customer agrees to the terms of this Agreement.<\/p>\n
Individual accepting this Agreement is accepting on behalf of a company or other legal entity, and shall have authority to bind such entity and its Affiliates to this Agreement. The term \u201cCustomer\u201d shall refer to such entity and its Affiliates. If the individual accepting this Agreement does not have such authority or does not agree with the terms and conditions of this Agreement, such individual must not accept this Agreement and may not use the Services.<\/p>\n
The Services may not be accessed for the purposes of any benchmarking or competitive purposes. Duck Soup Style\u2019s competitors are prohibited from accessing the Services, except with Duck Soup Style\u2019s prior written consent.<\/p>\n
This Agreement is effective as of the date Customer accepts this Agreement.<\/p>\n
1.1.\u00a0\u201cAffiliate\u201d<\/strong>\u00a0means any entity that directly or indirectly is controlled by the subject entity. For purposes of this definition,\u00a0\u201ccontrol\u201d<\/strong>\u00a0means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of an entity.<\/p>\n 1.2.\u00a0\u201cDocumentation\u201d<\/strong>\u00a0means the specifications, descriptions and user instructions that describe the operation, performance and functionality of the Platform and\/or Services. Licensor may update the Documentation from time to time with or without notice to Licensee.<\/p>\n 1.3.\u00a0\u201cHosting Equipment\u201d<\/strong>\u00a0means the equipment, hardware, operating systems, networks, software, interfaces or other infrastructure components that Licensor or its third-party hosting provider(s) will make available so that the Platform is available and accessible by Licensee and\/or its Users.<\/p>\n 1.4.\u00a0\u201cIntellectual Property\u201d<\/strong>\u00a0or\u00a0\u201cIP\u201d<\/strong>\u00a0shall mean any proprietary rights, title and interest in patents, patent applications, extensions, supplementary protection certificates, design rights, data rights, copyrights, trade secrets, trademarks, service marks, trade names, trade dress, know-how, business processes, technology and all other intellectual property rights, derivatives thereof, and any forms of protection of a similar nature anywhere in the world. The terms \u201cIntellectual Property\u201d or \u201cIP\u201d may also be used herein to refer to the embodiments (e.g., computer software or data) that are protected by the foregoing IP rights.<\/p>\n 1.5.\u00a0\u201cLicensee Data\u201d<\/strong>\u00a0means all electronic data or information that Licensee or any of its Users input to the Platform.<\/p>\n 1.6.\u00a0\u201cLicensor Data\u201d<\/strong>\u00a0means all electronic data or information provided by Licensor that Licensee or any of its Users downloads from the Platform.<\/p>\n 1.7.\u00a0\u201cMalicious Software\u201d<\/strong>\u00a0means time bombs, Trojan horses, viruses, worms, and other intentionally harmful code or programs.<\/p>\n 1.8.\u00a0\u201cOrder\u201d<\/strong>\u00a0means a document for placing orders for licenses of the Platform and\/or Services that may be executed by Licensee (or its Affiliate) and Licensor from time to time, including amendments and supplements thereto. By entering into an Order, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original Party hereto. Orders attached hereto shall be deemed incorporated herein by reference<\/p>\n 1.9.\u00a0\u201cPlatform\u201d<\/strong>\u00a0means the SaaS software applications and\/or services that Licensor makes available to Licensee and\/or its Users subject to the terms and conditions of this Agreement and\/or an Order, including all Upgrades thereto.<\/p>\n 1.10.\u00a0\u201cServices\u201d<\/strong>\u00a0means any services provided by Licensor to Licensee under this Agreement or an Order, to include without limitation integration, customization, testing, maintenance and support, that allow or facilitate Licensee\u2019s or its Users\u2019 access to and use of the Platform, as well as any other services that are ordered by Licensee or an Affiliate under an Order and made available for Licensee\u2019s use by Licensor.<\/p>\n 1.11.\u00a0\u201cUpgrade\u201d<\/strong>\u00a0or\u00a0\u201cUpgrades\u201d<\/strong>\u00a0shall mean any new versions, fixes, enhancements, service packs or other revisions of the Platform as may be released in the future at Licensor\u2019s sole discretion.<\/p>\n 1.12.\u00a0\u201cUser\u201d<\/strong>\u00a0means an individual who is authorized by Licensee to use the Platform, and has been supplied with an individual named user identification (\u201cUserID\u201d<\/strong>) and password by Licensee (or by Licensor at Licensee\u2019s request). Users may include but are not limited to Licensee\u2019s employees, consultants, contractors, agents, customers and other third parties with whom Licensee transacts business. UserIDs may be reassigned by the Licensee should a User no longer need access to the Platform, so long as the total number of Users by category does not exceed the total number of such Users set forth on the applicable Order.<\/p>\n 2.1.\u00a0Grant.<\/strong>\u00a0Subject to the provisions of this Agreement and the applicable Order(s), Licensor hereby grants to Licensee, and Licensee accepts from Licensor, a time-limited, renewable, world-wide, non-exclusive, non-transferable and revocable license to use the Platform for its own internal business purposes. As part of this license grant, Licensor shall provide Licensee with access to the Platform Application Programming Interfaces (\u201cAPIs\u201d<\/strong>) that permit Licensee to query the Platform database and download Licensor Data in real time for live display on Licensee\u2019s website. This grant of license is subject to the usage and other restrictions of this Agreement, payment of Fees (as defined herein), and is valid only during the Term (as defined herein).<\/p>\n 2.2.\u00a0Subscriptions.<\/strong>\u00a0During the Term hereof, Licensor shall make the Platform available to Licensee pursuant to this Agreement and one or more Orders. Licensee may use the Platform for the number of user subscriptions purchased as specified in an Order (\u201cSubscriptions\u201d<\/strong>), only for the processing of Licensee’s own business. Subscriptions may not be shared or used by more than one User, but may be reassigned to new Users replacing former Users who no longer require ongoing access to and\/or use of the Platform. Licensee may add additional Subscriptions during the Term, which Subscriptions shall terminate on the same date as the pre-existing Subscriptions and the corresponding Fee shall be prorated for the remainder of the Subscription.<\/p>\n 2.3.\u00a0Users.<\/strong>\u00a0The Platform may be used only by Licensee\u2019s Users; provided that Licensee shall be solely responsible for the acts and omissions of any third-party Users, and shall insure that any third party that uses the Platform on behalf of Licensee complies with this Agreement.<\/p>\n 2.4.\u00a0Monitoring.<\/strong>\u00a0Licensee hereby grants Licensor the right to monitor Licensee\u2019s use of the Platform and any Services to the extent necessary to confirm compliance with this Agreement. If Licensor determines that Licensee has underpaid its Subscription Fees by permitting access by additional Users, Licensee shall pay an amount equal to such underpayment within ten (10) days after notification by Licensor of such underpayment.<\/p>\n 2.5.\u00a0Auditing.<\/strong>\u00a0During the Term and for three (3) years thereafter, Licensee will maintain at its principal offices such books and records as are sufficient to confirm Licensee’s compliance with this Agreement. Licensee will permit Licensor or its representative to audit such books and records upon reasonable written notice. If any such audit reveals that Licensee has underpaid the Fees owed to Licensor under this Agreement for any quarter by more than five percent (5%), Licensee will remit such underpaid Fees, and reimburse Licensor for all expenses reasonably incurred by Licensor in connection with such audit. Unless such an underpayment is revealed, Licensee will not be required to submit to an audit more than once during any calendar year.<\/p>\n 2.6.\u00a0Upgrades<\/strong>\u00a0Licensee acknowledges and agrees that Licensor may make changes and improvements to the Platform and implement Upgrades during the Term in its discretion. Specifically, Licensor may add, alter, or remove functionality from the Platform at any time without prior notice. Licensor may also limit, suspend, or discontinue a portion of the Platform in its discretion. If Licensor discontinues any substantial portion of the Platform, Licensor will give Licensee reasonable advance notice.<\/p>\n 2.7.\u00a0Restrictions<\/strong>\u00a0Licensee shall not: (a) make the Platform available to anyone other than its authorized Users; (b) present any Licensor Data that has been defaced or distorted, or in a manner that is misleading or negatively reflects upon Licensor or its business; (c) knowingly use the Platform to store or transmit infringing, libelous, or otherwise unlawful material, or to store or transmit material in violation of third-party privacy rights; (d) intentionally interfere with or disrupt the integrity or performance of the Platform or third-party data contained therein; (e) attempt to gain unauthorized access to or interfere with the Platform, Hosting Equipment or related systems or networks; (f) attempt to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms in the Platform; (g) modify, alter, tamper with, repair or otherwise create derivative works of the Services; (h) decompile, disassemble or reverse engineer the Platform; (i) permit any third party to use the Platform, or use the Platform for purposes of processing the data of any third party; (j) use the Platform in violation of any applicable local, state, national or international law or regulation, including, but not limited to, U.S. export laws; or (k) permit or assist any other person or entity to do any of the foregoing.<\/p>\n 2.8.\u00a0Future Functionality.<\/strong>\u00a0Licensee acknowledges and agrees that its purchase of licenses in the Platform hereunder is not contingent upon the delivery or provision of any future functionality or features.<\/p>\n 3.1.\u00a0Fees.<\/strong>\u00a0Licensee shall pay the fees specified in each applicable Order (the\u00a0\u201cFees\u201d<\/strong>). Licensee also shall reimburse Licensor for any payment processing charges incurred by Licensor that are assessed by third-party payment processing services in connection with the payment of Fees by Licensee under this Agreement.<\/p>\n 3.2.\u00a0Invoicing and Payment.<\/strong>\u00a0The Fees for the Platform and any Services are set forth on the applicable Order. All amounts mentioned in this Agreement are in U.S. Dollars. All Fees for Subscriptions shall be billed and paid in advance for each applicable term, unless otherwise stated in the applicable Order. Undisputed invoiced charges are due upon receipt of invoice. The invoices shall be delivered via electronic (e-mail) delivery and addressed as specified on the applicable Order. Licensee is responsible for providing complete and accurate billing and contact information to Licensor and notifying Licensor of any changes to such information.<\/p>\n 3.3.\u00a0Overdue Charges.<\/strong>\u00a0At Licensor\u2019s discretion, any undisputed amount not received from Licensee within thirty (30) days of written notice of non-payment may accrue interest at the rate of one percent (1.0%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.<\/p>\n 3.4.\u00a0Suspension and Acceleration.<\/strong>\u00a0If any undisputed amount owed by Licensee under this Agreement for Platform or Services is thirty (30) or more days past due Licensor may, without limiting its other rights and remedies, accelerate the unpaid Fee obligations so that all such obligations become immediately due and payable, and suspend the Platform and\/or Services until such amounts are paid in full. Licensor shall provide at least seven (7) days\u2019 prior written notice that the account is past due before suspending Services.<\/p>\n 3.5.\u00a0Payment Disputes.<\/strong>\u00a0Licensee must notify Licensor in writing of any disputed amount within thirty (30) days of the date of invoice receipt. Licensor shall not exercise its rights under Sections 3.3 or 3.4, if Licensee has disputed the applicable charges reasonably and in good faith, and is cooperating diligently to resolve the dispute. After thirty (30) days, invoices received by Licensee and not disputed shall be deemed approved by Licensee.<\/p>\n 3.6.\u00a0Taxes.<\/strong>\u00a0Unless otherwise stated, Fees and charges hereunder do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to sales, use, value added or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively,\u00a0\u201cTaxes\u201d<\/strong>). Licensee is responsible for paying all Taxes associated with Licensee\u2019s purchases hereunder. If Licensor has the legal obligation to pay or collect Taxes for which Licensee is responsible, the appropriate amount shall be invoiced to and paid by Licensee, unless Licensee provides Licensor with a valid tax exemption certificate authorized by the appropriate taxing authority. Taxes do not include taxes which are based on Licensor\u2019s income, property or employees.<\/p>\n 3.7.\u00a0Collection Costs.<\/strong>\u00a0Licensee shall reimburse Licensor for reasonable attorneys\u2019 fees and other costs incurred by Licensor in collecting any Fees or other charges in connection with this Agreement.<\/p>\n 4.1.\u00a0Support.<\/u>\u00a0Licensor shall provide telephone and email support of the Platform and\/or Services during the Term to answer questions and help troubleshoot any difficulties that Licensee may have in using the Platform and\/or Services. There is no limit to the number of support calls that Licensee may place during the Term, however, live support will only be provided by Licensor between the hours of 9:00 AM and 6:00 PM PST, on normal business workdays. The support under this Agreement does not include any on-site support by Licensor. Support provided hereunder shall be further subject to the Service Level Agreement (\u201cSLA\u201d<\/strong>) of Exhibit A, attached hereto.<\/p>\n 4.2.\u00a0Online Support.<\/u>\u00a0Licensee shall have Internet access to any Licensor help facilities posted on Licensor\u2019s web site, to allow Licensee to obtain solutions to problems by querying this knowledge base.<\/p>\n 4.3.\u00a0Upgrades.<\/u>\u00a0During the Term, Licensor shall provide Licensee with access to all Upgrades as hosted by Licensor or its service providers at no additional charge.<\/p>\n 5.1.\u00a0Licensee Responsibilities.<\/strong>\u00a0Licensee shall: (a) be responsible for Users\u2019 compliance with this Agreement; (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform and\/or Services under Licensee\u2019s accounts, and notify Licensor promptly of any such unauthorized access or use; (c) use commercially reasonable efforts, including implementing commercially-available virus protection software and procedures, to prevent the introduction of any Malicious Software in or to the Platform; (d) obtain any licenses and consents necessary to facilitate its access to the Platform and\/or Services; and (e) use the Platform and Services only in accordance with this Agreement, and applicable laws and government regulations.<\/p>\n 5.2.\u00a0Licensee Equipment.<\/strong>\u00a0Licensee shall provide, operate and maintain all equipment needed to connect to, access and use the Platform and\/or Services, other than any Hosting Equipment to which access is provided by Licensor.<\/p>\n 6.1.\u00a0Reservation of Rights.<\/strong>\u00a0Except for any rights granted under license herein, each Party shall retain all right, title and interest in and to all of its Intellectual Property and Confidential Information. Subject to the limited rights expressly granted hereunder, Licensor reserves all rights, title and interest in and to the Platform, Services and Licensor Data, including all related Intellectual Property rights. No rights are granted to Licensee hereunder other than as expressly set forth herein.<\/p>\n 6.2.\u00a0Licensee Data.<\/strong>\u00a0Licensee shall make commercially reasonable efforts to assist Licensor with obtaining all necessary rights to receive, process, store and\/or transmit Licensee Data via the Platform and\/or Services. Except for the limited rights granted by Licensee hereunder, Licensor acquires no rights, title or interest in or to Licensee Data, including any Intellectual Property rights therein.<\/p>\n 7.1.\u00a0Definition.<\/strong>\u00a0\u201cConfidential Information\u201d<\/strong>\u00a0means all information disclosed by a Party (\u201cDiscloser\u201d<\/strong>) to the other Party (\u201cRecipient\u201d<\/strong>), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be proprietary or confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall include, but not be limited to, the terms and conditions of this Agreement and all Orders, as well as business and marketing plans, technology and technical information, data, customer and supplier lists, pricing, product plans and designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to the Discloser; or (iv) was independently developed by the Recipient.<\/p>\n 7.2.\u00a0Protection and Non-Disclosure.<\/strong>\u00a0The Recipient shall use at least the same degree of care that it uses to protect the confidentiality of its own Confidential Information (but in no event less than reasonable care). During the term hereof and for five (5) years thereafter (or such longer period as may be authorized under applicable law), the Recipient shall not: (i) use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement; or (ii) except as otherwise authorized by the Discloser in writing, disclose any Confidential Information to any other person or entity, except to those employees, contractors and agents who have a need to know, provided that such persons are bound by confidentiality obligations at least as strict as those set forth herein. Without limiting the generality of the foregoing, neither Party may disclose the terms of this Agreement or any Order to any third party other than its Affiliates and their legal counsel and accountants without the other Party\u2019s prior written consent.<\/p>\n 7.3.\u00a0Permitted Disclosure.<\/strong>\u00a0Notwithstanding any provision hereof, a disclosure by a Recipient of any of the Discloser\u2019s Confidential Information (1) in response to a valid order by a court or other governmental body; (2) as otherwise required by law; or (3) necessary to establish the rights of either Party under this Agreement shall not be considered to be a breach of this Agreement by the Recipient; provided, however, that Recipient must provide prompt prior written notice thereof to the Discloser to enable the Discloser to seek a protective order or otherwise prevent the disclosure. Further, the Recipient shall disclose only the minimum amount of the Confidential Information that it is legally required to furnish and, where appropriate, will exercise its best efforts to obtain written assurances that confidential treatment will be accorded to such Confidential Information.<\/p>\n 7.4.\u00a0Return or Destruction.<\/strong>\u00a0At the request of the Discloser during the Term hereof and promptly upon expiration or termination of this Agreement, the Recipient shall return or destroy, as the Discloser directs, all materials in any medium that contain, refer to or relate to the Confidential Information of the Discloser that are in the Recipient\u2019s possession or control, except to the extent that retention is required by law, necessary to document performance under this Agreement, or required to be kept for backup or data retention purposes (in which case such information will be kept confidential in accordance with this Section until deletion), and provide a written certification of the same.<\/p>\n 7.5.\u00a0Remedy for Breach.<\/strong>\u00a0Notwithstanding anything to the contrary herein, the Parties agree that monetary damages would not be a sufficient remedy for any breach of this Section by the Recipient, and that the Discloser shall be entitled to seek injunction and\/or specific performance as a remedy for any such breach without requiring proof of irreparable harm. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Section, but shall be in addition to any other remedies available to the Discloser.<\/p>\n 8.1.\u00a0Mutual Warranties.<\/strong>\u00a0Each Party represents and warrants the following: (a) the Party\u2019s execution, delivery and performance of this Agreement: (i) are authorized by all necessary corporate action, (ii) do not violate the terms of any law, regulation, or court order to which such Party is subject or the terms of any material agreement to which the Party or any of its assets may be subject and (iii) are not subject to the consent or approval of any third party; (b) this Agreement is the valid and binding obligation of the representing Party, enforceable against such Party in accordance with its terms; and (c) such Party is not subject to any pending or threatened litigation or governmental action which could interfere with such Party’s performance of its obligations hereunder.<\/p>\n 8.2.\u00a0Performance Warranty.<\/strong>\u00a0Licensor warrants that the Platform shall perform materially in accordance with the Platform Documentation, and that the Services will be performed in a prompt, diligent and professional workmanlike manner. In the event that Licensee discovers a material malfunction in the Platform or Services, Licensor agrees, during the Term, to promptly use commercially reasonable efforts to correct, cure or otherwise remedy, at Licensor\u2019s option, such malfunction at Licensor\u2019s sole expense. Licensee agrees to cooperate and work closely with Licensor in a prompt and reasonable manner in connection with Licensor\u2019s correction efforts.<\/p>\n 8.3.\u00a0Limitations.<\/strong>\u00a0Licensor does not warrant that the Platform or Services will be sufficient to meet Licensee\u2019s requirements, or operate error-free or without interruption. Licensor is not responsible for any delays, delivery failures, or any other loss or damage resulting from: (a) the transfer of data over communications networks and facilities, including the Internet, and Licensee acknowledges that the Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities including the Hosting Equipment; (b) integration or combination of the Platform with any product or service not supplied by Licensor; (c) use of the Platform other than for its intended purpose; (d) modification of the Platform by any person or entity not authorized by Licensor; or (e) use of other than the current, unaltered release or version of the Platform, in each case if the loss or damage would have been avoided in the absence of the circumstances specified in (a) through (e) above.<\/p>\n 8.4.\u00a0Disclaimer.<\/strong>\u00a0EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.<\/p>\n 9.1.\u00a0Indirect Damages.<\/strong>\u00a0IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE EVEN IF THE PARTY WITH ALLEGED LIABILITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.<\/p>\n 9.2.\u00a0Direct Damages.<\/strong>\u00a0IN NO EVENT SHALL EITHER PARTY\u2019S LIABILITY TO THE OTHER EXCEED THE AGGREGATE AMOUNTS PAID OR OWED BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE FIRST OCCURRENCE OF THE EVENTS GIVING RISE TO ANY CLAIM.<\/p>\n 9.3.\u00a0Exceptions.<\/strong>\u00a0NOTWITHSTANDING ANY STATEMENT TO THE CONTRARY IN THIS AGREEMENT, THE LIMITATIONS OF LIABILITY OF THIS SECTION SHALL NOT APPLY TO A PARTY’S OBLIGATIONS OF INDEMNIFICATION, OR CLAIMS OF A BREACH OF CONFIDENTIALITY, SECURITY, PRIVACY, GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT, OR CLAIMS ARISING FROM MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR VIOLATION OF APPLICABLE LAWS OR REGULATIONS.<\/p>\n 10.1.\u00a0Licensor Indemnification.<\/strong><\/p>\n 10.2.\u00a0Licensee Indemnification.<\/strong>\u00a0Licensee (here, the\u00a0\u201cIndemnifying Party\u201d<\/strong>) shall indemnify Licensor and its affiliates, owners, officers, directors, shareholders, agents and employees (the\u00a0\u201cIndemnified Party\u201d<\/strong>) from and against any and all Losses incurred by the Indemnified Party as a result of any Claim and shall defend the Indemnified Party against any such Claims, arising from: i) any infringement or misappropriation of Intellectual Property owing to the Indemnified Party’s access, receipt or use of the Licensee Data; or ii) any material breach of this Agreement by the Indemnifying Party.<\/p>\n 10.3.\u00a0Process.<\/strong>\u00a0The Indemnifying Party shall defend each Claim, and control and direct the investigation, defense and settlement of each such Claim at its expense. When seeking indemnification, the Indemnified Party shall: 1) promptly notify the Indemnifying Party in writing of the Claim for which indemnification is sought, 2) permit the Indemnifying Party to control the defense and settlement negotiations of the Claim, 3) cooperate with the Indemnifying Party as reasonably requested to assist in the defense and\/or settlement of the Claim at the Indemnifying Party\u2019s expense, and 4) have the right to provide for its own separate defense at its own expense. Notwithstanding the foregoing, the failure to give notice to the Indemnifying Party within a reasonable time of the commencement of any Claim under this Section will not relieve the Indemnifying Party of any liability to the Indemnified Party under this Section unless such failure materially prejudices the Indemnifying Party\u2019s ability to defend such Claim.<\/p>\n 11.1.\u00a0Term of Agreement.<\/strong>\u00a0This Agreement shall continue in force for an initial term of one (1) year from the Effective Date (\u201cInitial Term\u201d<\/strong>), and upon the expiration of this Initial Term, this Agreement shall be automatically renewed for successive one (1) year terms (each a\u00a0\u201cRenewal Term\u201d<\/strong>), unless terminated by either Party upon thirty (30) days\u2019 notice prior to such renewal or unless otherwise terminated by its terms. This Agreement shall automatically terminate at the end of the Initial Term or the current Renewal Term as applicable if Licensee fails to pay the Fees for the next Renewal Term in advance. Notwithstanding anything to the contrary set forth in this Agreement, Licensee can terminate this Agreement, in its sole discretion, at any time and for any reason, without penalty, upon not less than thirty (30) days\u2019 prior written notice.<\/p>\n 11.2. The Initial Term plus all successive Renewal Terms up until the date of termination shall be collectively referred to as the\u00a0\u201cTerm\u201d<\/strong>\u00a0of this Agreement.<\/p>\n 11.3.\u00a0Subscription Term.<\/strong>\u00a0Subscriptions for the Platform purchased by Licensee shall commence on the applicable date specified on the Order and shall continue for the applicable term specified therein.<\/p>\n 11.4.\u00a0Termination for Cause.<\/strong>\u00a0Either Party may terminate this Agreement upon written notice if the other Party materially breaches this Agreement, and fails to correct such breach within thirty (30) days following written notice specifying the breach. In the event that Licensee terminates this Agreement for cause, Licensor will refund a pro rata portion of any prepaid Fees paid during the current term based upon the date of breach.<\/p>\n 11.5.\u00a0Termination for Bankruptcy.<\/strong>\u00a0Either Party may terminate this Agreement at any time if the other Party enters into insolvency or bankruptcy, or is unable to pay its debts as they become due, or a trustee or receiver or the equivalent is appointed for the Party, or proceedings are instituted against the Party relating to dissolution, liquidation, winding up, bankruptcy or insolvency, if such proceedings are not terminated or discharged within thirty (30) calendar days.<\/p>\n 11.6.\u00a0Effect of Termination.<\/strong>\u00a0In the event of any expiration or termination of this Agreement and\/or any Order, i) Licensee shall pay Licensor any and all undisputed Fees due; and ii) all license rights granted hereunder shall terminate.<\/p>\n 11.7.\u00a0Survival.<\/strong>\u00a0The following Sections shall survive any termination or expiration of this Agreement: 1, 2.5, 2.7, 3, 6, 7, 8.4, 9, 10, 11.5, 11.6 and 13.<\/p>\n 12.1.\u00a0Press Releases.<\/u>\u00a0At a mutually agreed upon time, the Parties may issue a joint press release to announce their relationship as set forth in this Agreement. Neither Party shall issue any press release or make any other public announcement or communication regarding the subject matter of this Agreement without the prior written approval of the other, which approval shall not be unreasonably withheld or delayed.<\/p>\n 13.1.\u00a0Governing Law and Jurisdiction.<\/strong>\u00a0This Agreement will be construed and enforced in accordance with the laws of the State of California, including its recognition of applicable federal law, but excluding such jurisdiction\u2019s choice of law rules, and the Parties consent to the exclusive jurisdiction and venue of state and federal courts in the State of California.<\/p>\n 13.2.\u00a0Dispute Resolution.<\/strong>\u00a0Except as otherwise provided herein, in the event of a dispute between the Parties arising out of this Agreement, and as a condition precedent to any right of action, representatives of each Party shall meet (either in person or by telephone), within ten (10) days after receipt of a notice from either Party specifying the nature of the dispute, to review a Party\u2019s claims for the basis of such dispute and attempt to resolve in good faith all such claims. Thereafter, if the Parties are unable to resolve the dispute within such time period, the matter shall be escalated to a Vice President (or a more senior officer) of each Party, who will meet, either in person or by telephone, within fifteen (15) days of such escalation. If the dispute remains unresolved after such escalation, then the Parties may exercise their other rights and remedies at law or in equity.<\/p>\n 13.3.\u00a0Waiver of Jury Trial.<\/strong>\u00a0TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.<\/p>\n 13.4.\u00a0Assignment.<\/strong>\u00a0Neither Party may assign, delegate, subcontract or transfer any of its rights or obligations hereunder without the prior written consent of the other Party, which shall not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign this Agreement, without the consent of the other Party, to an Affiliate or in connection with the sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties, their respective successors and permitted assigns.<\/p>\n 13.5.\u00a0No Third-Party Beneficiaries.<\/strong>\u00a0Nothing in the Agreement shall create any rights in any third-party beneficiaries, and no Party has any obligation to any third party by virtue of the Agreement.<\/p>\n 13.6.\u00a0Notice.<\/strong>\u00a0Except as otherwise specified in this Agreement, any notice required or permitted to be given under this Agreement will be sufficient if given in writing and: (i) personally delivered; (ii) deposited for next day delivery with a reputable overnight courier service; (iii) deposited in the mail, prepaid and certified or registered with return receipt requested; or (iv) sent by email with confirmation of receipt. Either Party may change its address for notice by giving written notice in accordance with the terms of this Section. All notices shall be addressed to the appropriate contact person as designated by Licensee or Licensor.<\/p>\n 13.7.\u00a0Compliance with Laws.<\/strong>\u00a0Each Party shall comply with all applicable local, state, national and foreign laws and regulations. As the Platform and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions, Licensee shall not permit Users to access or use the Platform in a U.S. embargoed country in violation of any U.S. export law or regulation.<\/p>\n 13.8.\u00a0Relationship of the Parties.<\/strong>\u00a0The Parties agree that each is an independent contractor and the Agreement does not create any employment relationship between the Parties for taxation of any other purpose. The Parties acknowledge and agree that neither this Agreement nor any related document shall in any respect be interpreted, deemed or construed as creating a partnership or joint venture between the Parties, or making either Party an agent or representative of the other Party, and each Party agrees not to make any contrary assertion, contention, claim or counterclaim in any action, suit or other legal proceeding involving any of the Parties. In no event shall either of the Parties be liable for debts or claims accruing or arising against the other Party.<\/p>\n 13.9.\u00a0Waiver.<\/strong>\u00a0No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right or any other right.<\/p>\n 13.10.\u00a0Severability.<\/strong>\u00a0If any provision of this Agreement is held by a court having jurisdiction over the Parties to be wholly or partially unenforceable for any reason, such unenforceability shall not affect the remainder of this Agreement, which shall remain in full force and effect.<\/p>\n 13.11.\u00a0Force Majeure.<\/strong>\u00a0Neither Party shall be responsible for failure to fulfill any obligation under this Agreement due to an event or circumstance beyond its reasonable control (a\u00a0\u201cForce Majeure Event\u201d<\/strong>), including without limitation acts of God, acts of government, pandemics, floods, fires, storms, earthquakes, civil unrest, acts of terror, strikes or other labor problems, disruption of telecommunications services, disruption of common carriers or utilities, internet service provider failures or delays, denial of service attacks, and similar events. If Licensor should fail to make any delivery provided for herein as a result of any such Force Majeure Event, Licensor shall have the right to make delivery within a reasonable time after the cause of such delay has been removed.<\/p>\n 13.12.\u00a0Entire Agreement.<\/strong>\u00a0This Agreement, including all Orders, amendments, exhibits and addenda hereto, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning such subject matter.<\/p>\n 13.13.\u00a0Precedence; Licensee Forms.<\/strong>\u00a0In the event that any term or condition in any Order attached hereto contradicts, modifies or adds to the terms and conditions of this Agreement, then such term or condition in such Order shall govern and control only with respect to the subject matter of such Order. Notwithstanding any language to the contrary therein, no terms or conditions stated in any Licensee-issued purchase order or other ordering documentation (excluding Orders) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be of no force or effect.<\/p>\n","protected":false},"excerpt":{"rendered":" Accepting this Agreement is done by: (a) executing an Order Form that references this Agreement; (b) clicking a box indicating acceptance; or (c) using the Services on a free trial basis, Customer agrees to the terms of this Agreement. Individual accepting this Agreement is accepting on behalf of a company or other legal entity, and […]<\/p>\n","protected":false},"author":1,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":[],"yoast_head":"\n2. LICENSE<\/h2>\n
3. FEES AND PAYMENT<\/h2>\n
4. Support<\/h2>\n
5. OTHER LICENSEE OBLIGATIONS<\/h2>\n
6. PROPRIETARY RIGHTS<\/h2>\n
7. CONFIDENTIALITY<\/h2>\n
8. WARRANTIES AND DISCLAIMERS<\/h2>\n
9. LIMITATION OF LIABILITY<\/h2>\n
10. INDEMNIFICATION<\/h2>\n
\n
11. TERM AND TERMINATION<\/h2>\n
12. PUBLICITY AND COMMUNICATION<\/h2>\n
13. GENERAL PROVISIONS<\/h2>\n