Jifflenow Software As A Service Agreement
This Jifflenow Software as a Service License Agreement (the “Agreement”) is applicable to all customers as of December 8, 2023, and you (the “Customer”) (each a “Party” and collectively the “Parties”). If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “you”, “your”, or “Customer” shall refer to such entity. If you do not have such authority or if you are not willing to be bound by these terms and conditions, do not accept this Agreement and do not use the Software or Company System. By accepting this Agreement or by using or accessing the service, Customer agrees to be bound by the following terms and conditions.
Jifflenow (“Company”) is a provider of meeting scheduling and management software solutions. Customer desires to subscribe to such software solutions from Company, and Company desires to grant a subscription to such software solutions pursuant to the terms and conditions hereof.
During the period of this Agreement, the Company will provide subscribed services to the Customer as described in the Jifflenow Business Services Order (the “BSO”) incorporated by reference into this Agreement. Should any conflict arise between the terms of the BSO and this Agreement, the BSO shall control only to the extent of the conflict.
In consideration of the agreements contained below, the Parties hereby agree as follows:
1) Definitions. For purposes of this Agreement, the following terms will have the meanings ascribed to them below.
- “Affiliate” means any company the majority of whose voting shares is now or hereafter, owned or controlled, directly or indirectly, by a party hereto, or by an entity which owns or controls a party hereto, as applicable.
- “BSO” means a business service order.
- “Confidential Information” means any information disclosed by one Party to the other, which, (i) if in written, graphic, machine readable or other tangible form is marked “Confidential” or “Proprietary” or which, if disclosed orally or by demonstration, is identified at the time of disclosure as confidential and reduced to a writing marked “Confidential” and delivered to the receiving party within thirty (30) days of such disclosure; or (ii) by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential. Notwithstanding any failure to so identify them, all technology or proprietary information underlying the Software and the Company System shall be deemed Confidential Information of Company. Customer Data and the existence of this Agreement shall be deemed Confidential Information of Customer.
- “Documentation” means any documentation provided by Company for use with the Software under this Agreement.
- “Effective Date” means the date the applicable BSO is executed by both Parties.
- “Intellectual Property Rights” means all rights in, to, or arising out of: (i) any U.S., international or foreign patent or any application therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask works registrations, applications, moral rights, trademarks, and rights of personality, privacy and likeness, whether arising by operation of law, contract, license or otherwise; and (iv) any other similar or equivalent proprietary rights anywhere in the world.
- “Company Materials” means the Software and the Documentation.
- “Customer Data” means (a) meeting information, including but not limited to customer name, date, time and duration of the meetings, meeting objectives, (b) name, title, email, company, phone number of each meeting attendee, and (c) any other data or Confidential Information of Customer that Company receives access to by virtue of this engagement.
- “Company System” means the Software operated on Company’s hosting servers or those of its hosting service provider intended to enable the Customer to interact with the same via the worldwide web.
- “Protected Information” means: (i) Social Security number; (ii) passport numbers or other government-issued identification numbers; (iii) health or medical information (other than dietary preferences or medical contact information); (iv) date of birth, (v) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to an individual’s financial account; or (vi) other information that a reasonable person would recognize as being highly sensitive (but excluding, for avoidance of doubt, contact information such as name, title, company name, mailing address, email address, and phone number).
- “Services” means collectively the Company System and Software.
- “Software” means Company’s meeting scheduling software, and all changes, corrections, bug fixes, enhancements, updates and other modifications thereto, whether made by or on behalf of Company, Customer, or any third party.
- “Subscription Metrics” means the basic units, as specified in the BSO, subscribed to by the Customer hereunder.
- “BSO Subscription Term” means the period during which Customer is authorized to use the Services pursuant to a BSO.
- “Authorized User” means an employee of Customer authorized to use the Software.
2) Responsibilities of Company
- Company will host and maintain the Software on servers operated and maintained by or at the direction of Company; and configure the meeting tool for the Customer. Company may in its sole discretion modify, enhance or update or otherwise change the Software.
- Company shall provide technical support of the Company System in accordance with the terms set forth herein. Company shall not be obligated to provide to the Customer any new release of any Software or module thereof, or other software or services for which Company generally charges a separate fee.
3) Responsibilities of Customer
- The Customer will cooperate in setting up the Software as reasonably requested by Company, including without limitation by providing Company with the information required to set up the meeting tool.
- The Customer will be responsible for obtaining and maintaining at the Customer’s expense all the necessary computer hardware, software, modems, connections to the Internet and other items required to access the Company System.
- Customer will provide true, accurate, current and complete Account information; and maintain and promptly update all Account information to keep it true, accurate, current and complete.
4) Right to Monitor
- Company will have the right to review and monitor all use of the Company System to ensure compliance with all of the terms of this Agreement.
- Subscription Right. Subject to the terms and conditions of this Agreement, Company grants to Customer for the Subscription Term, a limited, non-exclusive, non-transferable, worldwide and revocable subscription right, without the right to sublicense, to permit Users to access and use the Software and the Documentation via the Company System solely for internal use as it relates to operations of the Customer and its Affiliates. For clarity, “internal use” in the foregoing sentence only includes use of the Software to schedule meetings with Customer’s employees, executives, customers, partners, press and analysts, and those of its Affiliates. Customer agrees that it does not acquire under the Agreement any license to use the Services in excess of the scope and/or duration of the BSO. Except for the foregoing subscription right, no other rights in the Services are granted hereunder, and the Services is and will remain the sole and exclusive property of Company and its licensors, if any, whether the Services is separate or integrated with any other products, services or deliverables.
- Restrictions. Customer shall not (i) license, sublicense, sell, resell, transfer, rent, lease, assign (except as provided in Assignment, distribute, disclose, or otherwise commercially exploit or make available to any third party the Company Materials or Services; (ii) copy, record, extract, scrape, modify or make derivative works based upon the Company Materials or Services; (iii) “frame” or “mirror” the Company Materials or Services on any other server or device; (iv) access the Company Materials or Services for any benchmarking or competitive purposes or use the Services for application service provider, timesharing or service bureau purposes, or any purpose other than its own internal use, (v) decompile, disassemble, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Company Materials or Services, (vi) remove, obscure or modify a copyright or other proprietary rights notice in the Company Materials or Service; (vii) use the Company Materials or Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful material, including material that violates third party privacy rights; (viii) use the Company Materials or Service to create, use, send, store, or run material containing software viruses, worms, Trojan horses or otherwise engage in any malicious act or disrupt the security, integrity or operation of the Company Materials or Services; (ix) attempt to gain or permit unauthorized access to the Company Materials or Services or related systems or networks, including but not limited to conducting any penetration testing, denial of service attacks, or similar efforts; (x) use the Company Materials or Services other than in compliance with all applicable laws and regulations; or (xi) permit or assist any other party (including any user) to do any of the foregoing.
- Copies of Documentation. Customer may make a reasonable number of copies of the Documentation solely to support Customer’s use of the Software as authorized under this Agreement, provided that such copies shall include Company’s copyright and any other proprietary notices that appear on the original copies of the Company Materials. Any copies of the Documentation made by Customer are the exclusive property of Company.
- Reservation of Rights. Company reserves all rights to the Company System not otherwise expressly granted in this Section 5
- Changes. Access to a Service and Documentation is limited to the version in Company’s production environment, accessed via the Internet by use of a Company-approved Customer-provided browser. Company regularly updates the Services and Documentation and reserves the right to add and/or substitute functionally equivalent services or features in the event of product unavailability, end-of-life, or changes to software requirements.
- Server Location. Customer acknowledges that Company has servers located in the United States only and that the SaaS Solutions are not intended to be used by Customer or third parties in any country which requires an individual’s personal data to remain on servers located in that country.
- No Protected Information. Customer acknowledges and agrees that use of the Services does not require Customer to provide any Protected Information to or through the Services and Company shall have no liability to Customer or its representatives, users or any other party related to any Protected Information. Customer shall not (and shall ensure that its representatives and users do not) upload, provide or submit any Protected Information to the Services. Company may upon notice suspend all or portion of Customer’s or its users’ access to the Services if Company has a good faith belief that Customer or its users has breached the restrictions in this Section.
- User IDs. Company shall assign Customer one or more user IDs and passwords that will enable Customer to access a Service. Customer shall take reasonable precautions to protect against theft, loss or fraudulent use of these IDs and passwords. Each user ID is unique to the assigned individual and may not be shared with others, including other personnel of Customer.
- Breach by Authorized User. Any failure by an Authorized User to comply with this Agreement is deemed to be a breach by Customer, and Company shall not be liable for any damages incurred by Customer or any third party resulting from such breach. Customer shall immediately take all necessary steps, including providing notice to Company, to effect the termination of an access ID for any Authorized User if there is any compromise in the security of that access ID or if unauthorized use is suspected or has occurred.
- Communications. By executing the Agreement, Customer hereby consents, on behalf of its signatory herein and each of its personnel who is assigned a user ID for access to the Service, to receiving email communications from Company regarding Company products and services, including but not limited to white papers, webcasts, videos, live events, and other marketing and information materials. Customer understands that its signatory and personnel may withdraw such consent at any time by unsubscribing from such email communications through the links provided therein.
6) Customer Data
- Subject to the terms and conditions of this Agreement, the Customer hereby grants Company a fully-paid worldwide, non-exclusive, royalty-free, sub-licensable right during the Subscription Term to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and make derivative works of the Customer Data solely in order to enable the Software to use the Company System for the purpose of providing to Customer the Services and any other activities expressly agreed to by Customer. Company shall have no right to resell the Customer Data or any component thereof. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of and right to use all Customer Data and warrants that it has and will have all rights and consents necessary to allow Company to use this data as contemplated by this Agreement.
- Customer and Company shall comply with all applicable privacy laws and regulations and shall provide help and cooperation to the other as is reasonably necessary or requested to comply with these laws and regulations. If a Service involves the processing of personal data of data subjects (as defined by applicable data protection legislation) located within the European Economic Area or Switzerland on behalf of Customer, then the Parties agree to execute Company’s data protection agreement located at: https://www.cvent.com/en/cvents-data-privacy-agreement.
7) Payment; Taxes
- Subscription Fees. Unless otherwise provided in the applicable BSO or any other Documentation, (a) Company Materials are provided on a unit basis at the fees set forth in the applicable BSO; (b) subscriptions may be added during the Subscription Term by executing an Addendum to the BSO at the underlying subscription pricing, prorated for the portion of that Subscription Term remaining at the time the subscriptions are added, and (c) the term for the additional subscriptions shall equal the period of time remaining on the then current and existing subscriptions so that the term for all the subscriptions shall be coterminous, regardless of when purchased and subject to payment of fees as applicable.
- Customer shall pay Company the subscription fees in the amount set forth in the BSO (the “Subscription Fees”) in accordance with the terms set forth therein. Subscription Fees are subject to change with each new BSO. Where a price change applies to you, we will charge or invoice you under the new price structure. You may not downgrade or decrease your subscriptions during the Subscription Term and in order to avoid additional charges, you should purchase the appropriate tier of Subscription Service for your anticipated needs. Subscriptions are non-cancellable before their end date and any unused quantities purchased during the Subscription term are not refundable. Subscriptions purchased cannot be reduced during the Subscription Term and any unused units cannot be rolled over for a renewed term and have no residual value.
- Taxes. Customer shall, in addition to the other amounts payable under this Agreement, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on Company’s net income, property and employees. Customer agrees to indemnify, defend, and hold Company, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from Customer’s failure to report or pay any such taxes, duties or assessments.
8) Invoicing and Payments
- Payment against invoice. Company will invoice you within thirty (30) days after the execution of the BSO and at other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable within Thirty (30) days from the date of the invoice, unless otherwise specified in the Business Services Order. Customer is responsible for providing complete and accurate billing and contact information to Company and notifying any changes to such information.
- Payment by credit card. If payments are done by credit card, Customer authorizes Company to charge Customer’s credit card for all fees payable during the Subscription Term. Customer further authorizes Company to use a third party to process payments, and consents to the disclosure of payment information to such third party.
- Overdue Charges. Invoiced amounts are to be paid within Thirty (30) days from the date of invoice. If any invoiced amount is not received by Company within the due date, then without limiting Company’s right or remedies, those charges may accrue late interest of 1.5% per month of the outstanding balance from the due date of payment to the actual date of payment. If Customer does not contest the amounts due within fifteen (15) days of receipt of the invoice, the amounts shall be deemed non-contested.
- Suspension of Service. If any amount owing by Customer under this Agreement for purchases is 30 or more days overdue, Company may without limiting our other rights and remedies, suspend its services to Customer by giving prior notice, until such amounts are paid in full.
- Customer. As between Customer and Company, the Customer shall retain all right, title and interest in and to the Customer Data and all Intellectual Property Rights therein. Nothing in this Agreement will confer on Company any right of ownership or interest in the Customer Data or the Intellectual Property rights therein.
- Company. As between Company and Customer, all rights, title, and interest in and to all intellectual property rights in the Services and Company Materials (including all components, derivatives, modifications and enhancements) are and will be owned exclusively by Company notwithstanding any other provision in this Agreement or BSO. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services and Company Materials. All rights, title and interest in or to any copyright, trademark, service mark, trade secret, patents, and other proprietary right relating to the Services and Company Materials, the related logos, product names, etc. are reserved and all rights not expressly granted are reserved by Company. Company alone shall own all rights, title and interest in and to any suggestions, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating thereto. Customer acknowledges and agrees any software and any developed materials Company creates pursuant to this Agreement are not and will not be considered as “works made for hire” under the United States Copyright Act, Title 17, United States Code or “joint works of authorship,” or any other designation tending to imply that Customer has or retains ownership or authorship rights therein or thereto, but are provided to Customer in accordance with and subject to the terms and conditions of this Agreement. To the extent that any such rights vest initially with Customer by operation of law or for any other reason, Customer hereby perpetually and irrevocably assigns, transfers, and quitclaims all such rights to Company. Subject to Company’s confidentiality obligations under the Agreement, nothing herein prevents or limits Company’s right to undertake engagements for any other entity, transfer or license the deliverables to other parties, or to reuse them in whole or in part in other projects, including a competitor of Customer.
10) Disclaimer of Warranties
- COMPANY MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE COMPANY MATERIALS, THE COMPANY SYSTEM, OR ANY OTHER ACCOMPANYING MATERIAL PROVIDED HEREUNDER. COMPANY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND OF UNINTERRUPTED OR ERROR-FREE SERVICE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND IN ANY EXHIBITS APPENDED HERETO, THE SOFTWARE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS. USE OF OR CONNECTION TO THE INTERNET PROVIDES THE OPPORTUNITY FOR UNAUTHORIZED THIRD PARTIES TO CIRCUMVENT SECURITY PRECAUTIONS AND ILLEGALLY GAIN ACCESS TO THE SERVICES AND CUSTOMER DATA. ACCORDINGLY, COMPANY CANNOT AND DOES NOT GUARANTEE THE PRIVACY, SECURITY OR AUTHENTICITY OF ANY INFORMATION TRANSMITTED OVER OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET. IN ORDER TO PROTECT CUSTOMER DATA, COMPANY MAY SUSPEND CUSTOMER’S USE OF THE SERVICES IMMEDIATELY, WITHOUT PRIOR NOTICE, PENDING AN INVESTIGATION, IF ANY BREACH OF SECURITY IS SUSPECTED.
11) Term; Termination
- Term. Unless earlier terminated as provided in this Section 11, this Agreement will have an initial term of three (3) years (the “Initial Term”), which shall commence as of the Effective Date.
- Automatic Termination. If the BSO expires prior to the expiration or termination of this Agreement and the parties do not enter into a new BSO or there are no other BSOs outstanding, this Agreement shall automatically terminate.
- Term of Purchased Subscriptions. Each BSO shall state the Subscription Term of the BSO.
- Renewal. This Agreement will automatically renew for the term in the BSO (“Renewal Subscription Term”), unless mutually agreed 30 days in advance for a different term available as per the subscription plan. The Subscription Fees are fixed for the Initial Term of the applicable BSO. Thereafter, Company may increase these fees for future Renewal Subscription Term(s).
- Non-Renewal. Written notice of non-renewal must be sent no more than ninety (90) days but no less than Thirty (30) days in advance of the end of the BSO Subscription Term, unless otherwise set forth in your BSO. The Renewal Subscription Term will be on the current terms and conditions, pricing plan of this Agreement, unless mutually agreed for a different terms and conditions, pricing plan available as per the subscription plan.
- By Either Party. This Agreement may be terminated by either Party upon delivery of written notice of termination to the other Party, as follows:
- if the other Party fails to perform or observe any material term or condition in this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from the non-breaching Party; or
- If the other Party (i) makes a general assignment for the benefit of creditors, (ii) admits in writing its inability to pay debts as they come due, (iii) voluntarily files a petition or similar document initiating any bankruptcy or reorganization proceeding, or (iv) involuntarily becomes the subject of a petition in bankruptcy or reorganization proceeding and such proceeding shall not have been dismissed or stayed within sixty (60) days after such filing.
- Termination of this Agreement by either Party will not limit a Party from pursuing any other remedies available to it, including injunctive relief, nor will termination release Customer from its obligation to pay all fees that Customer has agreed to pay under this Agreement. If Company terminates this Agreement for Customer’s non-payment, Customer agrees to pay to Cvent the remaining value of the then-current initial or renewal term (that Customer acknowledges as liquidated damages reflecting a reasonable measure of actual damages and not a penalty) equal to the aggregate yearly (or monthly as the case may be) recurring fees (as set forth in the applicable BSO) that will become due during the canceled portion of such Initial or renewal term. Where a party has rights to terminate, the non-breaching party may at its discretion either terminate the entire Agreement or the applicable BSO. BSOs that are not terminated shall continue in full force and effect under the terms of this Agreement.
- Effect of Termination. Within 30 (thirty) days of the termination of this Agreement, each Party shall promptly return, or at the other Party’s request destroy (and provide confirmation of such destruction), all Confidential Information of the other Party (including without limitation the Customer Data and the Documentation). Sections 1, 5, 8, 9, and 11-15 shall survive termination of this Agreement for any reason. All other rights and obligations of the Parties under this Agreement shall expire upon termination of this Agreement, except that all payment obligations accrued hereunder prior to termination or expiration shall survive such termination.
- Suspension. Company may immediately restrict or suspend access to the Services if Company becomes aware of, or reasonably suspects, any breach of this Agreement by Customer or its Authorized User(s). Company may remove any violating Customer Data posted or transmitted through a Service. Company will act in good faith and use reasonable efforts to notify Customer via phone or email before initiating suspending or restricting any Service. Customer is still responsible for full payment of the applicable BSO(s) even if access to the Services is suspended or terminated for any breach of this Agreement.
- Nondisclosure. Each Party (each a “Receiving Party”) agrees that it shall use and reproduce the Confidential Information of the other Party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes; shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or advisors who have a need to know; and shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. The foregoing obligations shall be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. All third parties to whom the Receiving Party discloses Confidential Information must be bound in writing by obligations of confidentiality and non-use at least as protective of such information as this Agreement. Notwithstanding the foregoing, it shall not be a breach of this Agreement for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure.
- Exceptions. Notwithstanding anything to the contrary herein, neither Party shall be liable for using or disclosing information that such Party can prove: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in this Agreement.
- Remedies. The Receiving Party agrees that a breach of this Section 11 may result in immediate and irreparable harm to the Disclosing Party that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, the Disclosing Party will be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security.
- Any existing non-disclosure agreement entered into by the Parties is hereby superseded and replaced by the terms in this Section, which will govern all disclosures and exchanges of Confidential Information made by the Parties previously under that agreement.
13) Limitation on Damages
- Exclusion of incidental and consequential damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), REGARDLESS OF THE CAUSE, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE SERVICES provided hereunder, EVEN IF ADVISED OF THE POSSIBILITY OF THESE DAMAGES.
- Maximum aggregate liability. TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY’S TOTAL AND AGGREGATED LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THE APPLICABLE BSO IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. THE LIMITATIONS IN THIS SECTION DO NOT APPLY TO (A) A PARTY’S FRAUD OR WILLFUL MISCONDUCT; (B) CUSTOMER’S OBLIGATION TO PAY FEES OWED UNDER THIS AGREEMENT; or (C) CUSTOMER’S indemnification obligations FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT AS SET FORTH UNDER SECTION 14 of THIS AGREEMENT. THESE LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES AND WILL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY SPECIFIED REMEDIES.
- Customer shall: (a) defend Company against any claim or lawsuit by a third party (a “Claim”) against Company to the extent the Claim arises out of or results from (i) Customer Data; (ii) Customer’s breach of Section 5; and (b) pay any damages awarded against iCapture for the Claim or any amounts agreed by you and the claimant for the settlement of the Claim.
- Procedures. The Party seeking indemnity under this Section 14 (the “Indemnified Party”) must: (a) notify the other Party (the “Indemnifying Party”) promptly in writing of the Claim, specifying the nature of the Claim and such relief as is sought therein; (b) tender to the Indemnifying Party sole control of the defense or settlement of the Claim at the Indemnifying Party’s expense, provided, however, the Indemnifying Party may not settle a Claim in a manner that would have an adverse impact on the business of the Indemnified Party without receiving the prior written consent of the Indemnified Party; and (c) cooperate and, at the Indemnifying Party’s expense, assist in the defense of the Claim. The Indemnified Party will have the right to participate at its own expense in any Claim or related settlement negotiations using counsel of its own choice.
- Assignment. Neither Party may assign, sublicense, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, Company may, without the consent of Customer, assign this Agreement to a Company Affiliate, an entity merging with, consolidating with, or purchasing substantially all its assets or stock, provided that the assignee shall assume all rights and obligations under this Agreement. Any permitted assignment of this Agreement shall be binding upon and enforceable by and against the Parties’ successors and assigns, provided that any unauthorized assignment shall be null and void and constitute a breach of this Agreement. Notwithstanding the foregoing, Company may subcontract the provision of the Services in whole or in part to a Company affiliate.
- Use of Agents. Company may designate an agent or subcontractor to perform certain tasks and functions under this Agreement. However, Company will remain responsible for performance of its duties under this Agreement.
- Entire Agreement. This Agreement, any exhibits and amendments thereto, and any BSOs constitute the entire agreement between the Parties and supersede all previous agreements, oral or written, with respect to the subject matter of this Agreement. This Agreement may not be amended without the prior written consent of both Parties. All pre-printed or standard terms of any Customer purchase order or other business processing document are hereby rejected and will have no force or effect. Restricted Rights. If Customer is an agency, department or entity of the United States Government (“Government”), Customer agrees, that (i) use, reproduction, release, modification or disclosure of the Software, or any part thereof, including technical data, is restricted in accordance with Federal Acquisition Regulation (“FAR”) 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7202 for military agencies, (ii) the Software is a commercial product, which was developed at private expense, and (iii) use of the Software by any Government agency, department or other agency of the Government is further restricted as set forth in this Agreement.
- Import and Export Requirements. Customer acknowledges and agrees that the Company Materials are subject to export control laws and regulations. Customer may not download or otherwise export or re-export the Company Materials or any underlying information or technology except in full compliance with all applicable laws and regulations, in particular, but without limitation, United States export control laws. None of the Company Materials or any underlying information or technology may be downloaded or otherwise exported or re-exported: (a) into, or to a national or resident of, any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities. Customer hereby agrees to the foregoing and warrants that Customer is not located in, or under the control of, or a national or resident of any such country or on any such list.
- OFAC. Customer represents and warrants that it is not and will not provide a Service to any entity incorporated in or resident in a country subject to economic or trade sanctions by the U.S. State Department and/or OFAC or are listed as a “Specially Designated National,” a “Specially Designated Global Terrorist,” a “Blocked Person,” or similar designation under the OFAC sanctions regime. Any breach of this Section is a material breach of this Agreement and Company may immediately terminate this Agreement.
- Force Majeure. Except for payment obligations, if either Party is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of the Party invoking this provision, including but not limited to acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes (other than those limited to the affected party) (each, a “Force Majeure Event”), such Party’s performance shall be excused and the time for performance shall be extended accordingly provided that the Party immediately takes all reasonably necessary steps to resume full performance.
- Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Virginia without giving effect to its conflicts of law rules. Each of the Parties to this Agreement consents to the exclusive jurisdiction and venue of the state and federal courts of Fairfax County, Virginia.
- Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered in person (including by overnight courier) or three days after being mailed by registered or certified mail (postage prepaid, return receipt requested), and on the date the notice is sent when sent by verified facsimile, in each case to the respective Parties at the address first set forth hereto. Either Party may change its contact information by providing the other Party with notice of the change in accordance with this section. Notice may not be given by email.
- Relationship of Parties. The Parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other Party. Neither Party shall hold itself out as an agent of the other Party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.
- Severability. If any provision of this Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect.
- Waiver. No delay or failure by either Party to exercise any right or remedy under this Agreement will constitute a waiver of such right or remedy. All waivers must be in writing and signed by an authorized representative of the Party waiving its rights. A waiver by any Party of any breach or covenant shall not be construed as a waiver of any succeeding breach of any other covenant.
- Headings. The headings of the articles and paragraphs contained in this Agreement are inserted for convenience and are not intended to be part of or to affect the interpretation of this Agreement.
- Construction; Advice of Counsel. Both Parties acknowledge and agree that the Agreement has been jointly prepared and its provisions will not be construed more strictly against either Party as a result of its participation in such preparation. Each Party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement.
- Security Requirements. Company shall maintain reasonable administrative, physical, electronic and managerial procedures appropriate to the Company’s size and structure and that are designed to appropriately protect the confidentiality, integrity and availability of information that Company accesses or that Company collects, receives from or maintains on behalf of the Customer. Such safeguards shall include, but are not limited to, (a) security management policies and procedures including incident management procedures to address security events, (b) access controls, including password change controls, to ensure access to information resources is granted on a need to know and least privilege basis to prevent unauthorized access or disclosure of information, (c) device and software management controls to guard against viruses and other malicious or unauthorized software, (d) industry standard encryption safeguards as appropriate and where required by law, and (e) logging procedures to proactively record user and system activity for routine review,. Company shall regularly review such procedures and technology to ensure they remain consistent with industry standards.
- Publicity. Customer agrees that Company may identify Customer as a recipient of Services and use its logo in sales presentations, marketing materials and press releases provided that Company uses Customer’s logo in accordance with Customer’s logo guidelines.
- Notices. Any notice required or permitted under this Agreement or required by law must be in writing and must be: (i) delivered in person; (ii) delivered by electronic mail to the address listed on the applicable BSO; (iii) sent by first class registered mail, or air mail, as appropriate; or (iv) sent by an internationally recognized overnight air courier, in each case properly posted and fully prepaid to the contact person specified in the BSO. Notices will be considered to have been given at the time of actual delivery in person, two (2) business days after deposit in the mail, or one (1) day after delivery to an overnight air courier service, provided in each case that delivery in fact is affected. Either Party may change its contact person or address for notices by means of notice to the other Party given in accordance with this Section.