Last modified: Thu, 14 April 2022
1. SERVICES AND ACCESS TO PLATFORM
1.1 Services. Subject to these Terms and Conditions (the “Terms”), Company shall provide Customer and Customer’s Authorized Users access to the Platform, so that Customer can receive contextually relevant recommendations and be more effective in their sales conversations with prospective buyers in accordance with the terms of the Order Form and Master Services Agreement (collectively, the “Services”).
1.3 Ownership of Platform. Except as otherwise expressly provided in this Agreement, as between the Parties:
(i) Company reserves the right, in its sole discretion, to make any changes to the Platform and Services that it deems necessary or useful or that are requested by the Customer to: (a) maintain or enhance (i) the quality or delivery of Company’s services to its customers, (ii) the competitive strength of or market for Company’s services, or (iii) the cost efficiency or performance of the Platform; or (b) to comply with applicable law. Company will notify Customer in advance of making any material changes to the Platform.
(ii) Customer has and will retain sole control over all data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Platform. (“Customer Data”), except as set forth herein or in the applicable Order Form, and the operation, maintenance and management of, and all access to and use of, its systems, and sole responsibility for all access to and use of the Platform and Services by any Authorized Users by or through such systems or any other means controlled by Customer or any Authorized User. For the avoidance of doubt, Customer Data includes the insurance policies and information reflecting the access or use of the Platform by or on behalf of Customer or any Authorized User and personal information about Customer’s employees and contractors including business title, place of business, business email, and;
(iii) Company will have the right to review and monitor the use of the Platform and Services by Customer and its Authorized Users to ensure compliance with the terms of the Documentation, this Agreement and any applicable Order Form.
1.4 Authorization Limitations and Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, directly or indirectly, and will not permit or authorize third-parties or Authorized Users to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, mine data from Company’s systems, ideas or algorithms of the Platform, documentation or data related to the Service; modify, translate, or create derivative works based on the Platform; (ii) (input, upload, transmit or otherwise provide to or through the Platform or Services, any information or materials that Customer knows to be unlawful or injurious, or contain, transmit or activate any Harmful Code; (iii) rent, lease, or otherwise permit third-parties to use the Platform; (iv) use the Services to provide services to any unauthorized third-parties; (v) circumvent or disable any security or other technological features or measures of the Service or Platform; and (vi) remove, delete, alter or obscure any trademarks, Specifications, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or remove any proprietary notices or labels including any copy thereof.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer Liability. Customer is liable for the failure of it or any of its Authorized Users for any violation of the provisions in this Section 2.1, including any person who obtains any username, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Platform and Services. (“Access Credentials”) of an Authorized User. Customer agrees to defend, indemnify, and hold Company and its Affiliates and their employees, directors, officers, contractors and agents (collectively “Indemnitees”) from any and all Losses resulting from or in connection with a violation of this Section 2.1 by it, its Authorized Users or any persons who gets access to the Access Credentials of its Authorized Users.
2.2 Warranties and Representations. Customer represents, covenants, and warrants that Customer will not directly or indirectly: (i) use the Services other than in compliance with all applicable laws and regulations; (ii) copy, modify or create derivative works or improvements of the Platform or Services, except that, in the case of Documentation, Customer may create a reasonable number of copies of the written Documentation and training materials for Customer’s internal business and training purposes only. Customer agrees that Documentation is Confidential Information of the Company and is subject to Section 3 of these Terms. (iii) use Platform and/or Services to communicate any message or material that is harassing, libelous, threatening, obscene or would violate the Intellectual Property Right or privacy right of any person or is otherwise unlawful or that would give rise to civil liability; (iv) use Platform and/or Services in a manner that constitutes or encourages conduct that could constitute a criminal offense or could result in a civil action under any applicable law or regulation; (v) otherwise access or use Platform and/or Services beyond the scope of this Agreement; (vi) access or use Platform and/or Services for purposes of competitive analysis of the Services or for the development, provision or use of a competing software service or product or any other purpose that is to Company’s detriment or commercial disadvantage; (vii) take any action that will disparage Company or will harm Company’s business and reputation; or (viii) access or use the Platform and/or Services to damage, upload, transmit or otherwise provide to or through Platform and/or Services any information or materials that Customer knows to be unlawful or injurious. Customer will defend, indemnify, and hold Company harmless for any damages, costs, expenses, litigation, fines, fees or comparable assessments of any nature (collectively “Damages”) resulting from a breach of the above representations, covenants and warranties. Breach of these warranties and representations will be considered material breach of the Agreement.
2.3 Non-Solicitation of Employees and Contractors. During the term of the applicable Order Form and for twelve (12) months thereafter, each Party agrees that, it will not, without the prior permission of the other Party, directly or indirectly, solicit or participate in the solicitation of or attempt to solicit the other Party’s employees or contractors for the Party’s own benefit or for the benefit of another person or entity.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 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 “Confidential Information” of the Disclosing Party). “Confidential Information” means any information disclosed by one Party to the other Party or accessed by the other under this Agreement, 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 (as defined below) 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 Platform and the Services will be deemed Confidential Information of Company, and the Customer Data, the identity of the Customer clients, and the existence of this Agreement will be deemed Confidential Information of Customer. The terms of this Agreement shall be Confidential Information of both Parties. To be clear, however information for both Parties listed is only considered Confidential Information for so long as it has not been made known to the public by the Disclosing Party; or through the rightful action of a third-party; or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential 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 Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof or any information that the Receiving Party can document or becomes generally available to the public, or was in its possession or known by it, prior to receipt from the Disclosing Party, or was rightfully disclosed to it without restriction by a third party, or was independently developed without use of any Confidential Information of the Disclosing Party or (z) is required to be disclosed by law.
3.2 As between Customer and Company, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions. For the term of this Agreement, Customer grants to Company a limited, non-transferable, non-exclusive, non-sub licensable, royalty-free license to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and make derivative works of the data and use Customer Data, to provide Services to Customer.
3.3 Company shall own and retain all right, title and interest in and to the Services and Platform, all improvements, enhancements or modifications thereto, (a) any software, applications, inventions or other technology developed about Services or support, and (b) all “Intellectual Property Rights” (which means all rights granted, applied for or otherwise now or hereafter in existence under or related to any patents, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world) related to any of the foregoing.
3.4 Except as specifically stated in the Order Form, the Parties do not contemplate the development by Company of any custom-developed deliverables or work product for Customer (“Work Made for Hire” or “Work Product”) as defined in the US Copyright Act of 1976. In the event Customer requests such Work Product by Company in the future, the Parties will agree to the governing terms at that time and set forth in a Statement of Work. Unless expressly stated in a Statement of Work, nothing provided under this Agreement will be considered Work Made for Hire including deliverables and other work under this Agreement. Moreover, any suggestions or product feedback rendered by Customer or its Authorized Users relating to the Platform or the Services (collectively “Feedback”) will not be considered “works made for hire,” or comparable terms, as defined in the United States Copyright Act of 1976, as amended, or other federal or state laws. Unless otherwise agreed to in writing by the Company, all rights in and to the Platform, the Services and the Feedback are expressly reserved by Company. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Company an unrestricted license to use any Feedback (excluding any Customer Data included therein) given to Company, including all Intellectual Property Rights relating thereto.
3.5 Notwithstanding anything to the contrary, Company shall have the right, even after the expiration/termination of the underlying Order Form, to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services, Platform and related systems and technologies, for internal business purposes and to disclose such data in aggregate de-identified form in connection with its business.
4. PAYMENT TO COMPANY
Customer will pay Company the charges (the “Payment”) in the amount set forth in the Order Form and in accordance with the terms listed in the Order Form . If any undisputed invoices, which contain all accurate billing information as set forth in the applicable Order Form, have not been paid by Customer as of the invoice’s due date (the “Overdue Invoice”), Company may provide written notice to Customer that an invoice is an Overdue Invoice. If the Overdue Invoice remains unpaid for thirty (30) days after written notice, then Company reserves the right to charge Customer at the rate of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is higher, plus all expenses of collection and may result in immediate termination of Services. Customer shall be responsible for all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise associated with Services other than U.S. taxes based on Company’s net income.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below and applicable Order Form, the “Initial Term” of this Agreement commences as of the Effective Date shown above and will continue in effect until one (1) year after such date, shall renew for successive one (1) year terms (each a “Renewal Term,” and, with the Initial Term, collectively the “Term”), unless either party requests termination as provided under this Agreement.
5.2 In addition to any other remedies it may have, either party may terminate this Agreement and/or the underlying Order Form by (a) giving thirty (30) days’ notice if a party materially breaches any of the terms or conditions of the Agreement and such breach remains uncured for a period of thirty (30) days after receipt of notice or (b) 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 will not have been dismissed or stayed within sixty (60) days after such filing. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, non-solicitation and limitations of liability. All undisputed payment to Company for Services fully rendered or substantially rendered will become due immediately.
6. WARRANTY AND DISCLAIMER
6.1 Company shall maintain the Services and Platform in a manner which minimizes errors and interruptions. The Services that will be provided in a professional and workmanlike manner. Services or Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency 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 notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES OR PLATFORM 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 PLATFORM. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES, THE PLATFORM, AND IMPLEMENTATION SERVICES AND PLATFORM ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PURPOSE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM AND ANY SERVICES OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S, ITS AUTHORIZED USERS’, OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE.
6.2 INDEMINFICATION: Each Party hereby agrees to defend, indemnify, and hold harmless the other Party from and against any and all third party claims, demands, damages, expenses, and liabilities (including any related losses, costs, expenses, and attorney fees) of whatever nature resulting from or arising in connection with such Party’s performance under this Agreement or any breach by such Party of any of such Party’s covenants contained in this Agreement or any acts or omissions of such Party. This indemnification obligation will survive any termination of this Agreement.
7. LIMITATION OF LIABILITY
7.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON OR GROSS NEGLIGENCE, WILFUL MISCONDUCT, OR VIOLATIONS OF SECTION 3 (CONFIDENTIALITY; PROPRIETARY RIGHTS), A PARTY AND ITS SUPPLIERS OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR (A) ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE (C) ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL , CONSEQUENTIAL, ENHANCED OR PUNITIVE DAMAGES; REGARDLESS OF WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR DAMAGES WERE OTHERWISE FORSEEABLE, AND NOT WITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
7.2 CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 7.3, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED ONE TIMES (1X) THE AGGREGATE AMOUNT OF FEES PAID OR TO BE PAID BY CUSTOMER TO COMPANY FOR SERVICES PROVIDED UNDER THIS AGREEMENT IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LIABILITY. CUSTOMER ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS. THE PARTIES AGREE THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
7.3 The exclusions and limitations in Section 7.1 and Section 7.2 do not apply to (i) a Party’s breach of its confidentiality obligations under Section 3, or (ii) any liability for a Party’s fraud, gross negligence, or willful misconduct.
9.1 If any provision of the 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 either Party except with the party’s prior written consent, except in connection with an assignment to a party’s parent, wholly owned subsidiary, or a successor to all or substantially all of its assets (whether by merger, transfer of assets or equity interests, or otherwise). 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, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created because of this Agreement and a Party does not have any authority of any kind to bind the other Party in any respect whatsoever. 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.
9.2 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, pandemic, 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 will be excused and the time for performance will be extended accordingly provided that the Party affected immediately notifies the other Party and immediately takes all reasonably necessary steps to resume full performance. If Force Majeure Event lasts for more than fifteen (15) days with respect to Company and thirty (30) days with respect to Customer, then the affected party may terminate this Agreement.
9.3 Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of Delaware 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 located in the State of Delaware.
9.4 Dispute Resolution. Prior to the filing of any suit with respect to such dispute of any nature between the Parties, including, without limitation, a dispute with respect to this Agreement or applicable Order Form (the “Dispute”), the Party believing itself aggrieved (the “Invoking Party”) will call for progressive management involvement in the Dispute negotiation by giving written notice to the other Party. Such a notice will be without prejudice to the Invoking Party’s right to any other remedy at law, in equity or as permitted by this Agreement. The Parties will use best efforts to arrange personal meetings and/or telephone conferences as needed, at mutually convenient times and places, between their negotiators at the director and executive management levels. The Parties agree that any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by mandatory and binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The Parties hereby waive any right that they might have to have the Dispute decided by a jury or by court judge.