- 1. Term
- 2. Services
- 3. Restrictions
- 4. Availability
- 5. Information Security
- 6. Connectivity
- 7. Operating Environment
- 8. Proprietary Rights
- 9. Third Party Services
- 10. Customer Data
- 11. Feedback
- 12. Support and Maintenance
- 13. Fees
- 14. Warranties
- 15. Company Indemnity
- 16. Customer Indemnity
- 17. Confidentiality
- 19. Termination
- 20. General Provisions
PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE CRITICALASSET.COM WEBSITE, OTHER RELATED WEBSITES, SUBDOMAINS, THE CRITICALASSET MOBILE APPLICATIONS, THE CONTENT AND MATERIALS MADE AVAILABLE THROUGH THE SITE (COLLECTIVELY, THE “SITE”), BECAUSE THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS. THESE TERMS OF SERVICE (“AGREEMENT”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU (“CUSTOMER”) AND CRITICALASSET INC. (“COMPANY”). IF YOU ARE AGREEING TO THIS AGREMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THIS AGREEMENT. YOU SHOULD PRINT AND RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU SHOULD NOT PROCEED WITH REGISTRATION OR OTHERWISE RECEIVE THE SERVICES DESCRIBED BELOW.
This Agreement will commence on your first use of the Services and continue thereafter on an agreed to Term until either party gives the other party notice of its intent not to renew (the “Term.”).
The contents of the Site, including the text, images, audio, and video, are copyrighted and may not be distributed, modified, reproduced, or used, in whole or in part, without the prior written consent of Company, except that you may download content from the Site to any single computer for your personal, non-commercial (except with regard to your use of inherent functionality provided through the Site) use only, provided you keep intact all copyright, trademark, and other proprietary notices and comply with any applicable end user license agreements. For purposes of these Terms and Conditions, any use of these materials on any other Web site or networked computer environment for any purpose is prohibited. All trademarks, service marks, icons, and logos used in this Site are the trademarks, service marks or logos of Company or their respective owners.
You may not use automated systems (e.g., robots, spiders, etc.) to access the Site. You agree not to sell or otherwise exploit personally identifiable information of other users of the Site. Any rights not expressly granted by these Terms and Conditions or any applicable end user license agreements are reserved by Company and/or its vendors and licensors.
Subject to the terms and conditions of this Agreement and Customer’s payment of all relevant fees, Company grants Customer and its End Users (as defined below) a non-exclusive, non-transferable license to access and use the hosted services (the “Services”) for which the relevant fees are paid solely for Customer’s internal business purposes.
To the extent any Company software is provided to Customer for installation on its systems for use in connection with the Services, the Company software will be included in the definition of Services and subject to the foregoing license. All software may only be used in support of Customer’s use of the Services and for no other purpose. For purposes of this Agreement, “End Users” means Customer’s employees, contractors and representatives who are authorized to access the Services on Customer’s behalf.
Customer and its End Users may only use the Services as described in this Agreement and in the then current documentation made generally available by Company to its customers regarding the Services (the “Documentation”). Customer is responsible for ensuring its End Users comply with all relevant terms of this Agreement and any failure to comply will constitute a breach by Customer.
Except as expressly authorized by this Agreement Customer will not, and will not allow any End User or other third party to, (i) permit any third party to access or use the Services other than an End User; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the trade secrets embodied in the Services, except to the extent expressly permitted by applicable law; (iii) use the Services or any Company Confidential Information to develop a competing product or service; (iv) use any Service, or allow the transfer, transmission, export, or re-export of any Service or portion thereof, in violation of any export control laws or regulations administered by the U.S
Commerce Department or any other government agency; or (v) remove any copyright, trademark, proprietary rights, disclaimer, or warning notice included on or embedded in any part of the Documentation and Service, including any screen displays, etc., or any other products or materials provided by Company hereunder. Under no circumstances will Company be liable or responsible for any use, or any results obtained by the use, of the Services in conjunction with any services, software, or hardware that are not provided by Company. All such use will be at Customer’s sole risk and liability.
The hosted elements of the Services will be available for remote access during the Term, excluding Excused Outages (as defined below) (“Availability”). Downtime as a result of any causes beyond the control of Company or that are not reasonably foreseeable by Company, including, without limitation by any of the events noted below are excluded from the Availability calculations (collectively, “Excused Outages”):
a) Customer environment issues affecting connectivity or interfering with the Services, including without limitation, Customer’s telecommunications connection or any other Customer software or equipment, Customer’s firewall software, hardware or security settings, Customer’s configuration of anti-virus software or anti-spyware or malware software, or operator error of Customer;
b) any third-party software, hardware, or telecommunication failures, including Internet slow-downs or failures;
c) force majeure events, including, without limitation fire, flood, earthquake, elements of nature or acts of God; third party labor disruptions, acts of war, terrorism, riots, civil disorders, rebellions or revolutions; quarantines, embargoes and other similar governmental action; or any other similar cause beyond the reasonable control of Company;
d) issues related to third party domain name system (DNS) errors or failures;
e) scheduled maintenance of the Services, conducted on a regular basis, of which Company will give Customer a minimum of twenty-four (24) hours advanced notice by email or other pre-approved notification; and
f) emergency maintenance of the Services, for which Customer may not receive advanced notice.
In the event Company fails to achieve the Availability requirement, Company will use commercially reasonable efforts to correct the interruption as promptly as practicable.
5. Information Security
Consistent with any law or regulation applicable to the Services and Company’s then current practices and procedures, Company will maintain and enforce administrative, technical, and physical safeguards to reasonably protect the confidentiality, availability, and integrity of Customer’s Confidential Information and the Customer Data. Company will promptly report to Customer any compromise of security that it becomes aware of with regard to Customer Data.
The Services are not designed for the uploading of sensitive personally identifiable information of consumers. This type of information is not needed for the normal operation and use of the Services and should not be uploaded. In the event such information is nonetheless stored in the Services, such action will be at Customer’s sole risk and liability.
Customer and End Users are solely responsible for all telecommunication or Internet connections required to access the Services, as well as all hardware and software at Customer’s site. In addition to other third-party costs that may apply, Customer agrees to pay for all telecommunications costs, fees and services required for and dedicated to Customer’s access to the Services.
7. Operating Environment
In order to access the Services, Customer will install and maintain the operating environment(s) specified in the Documentation.
8. Proprietary Rights
Customer acknowledges and agrees that (i) all Services are protected by intellectual property rights, as applicable, of Company and its vendors/licensors and that Customer has no right to transfer or reproduce any Services or any software provided with the Services or prepare any derivative works with respect to, or disclose Confidential Information (as defined in Section 16 (Confidentiality)) pertaining to, any Services or any part of them and (ii) that Company owns all right, title, and interest in and to the Services, including any changes or modifications made to the Services performed in connection with this Agreement, together with all ideas, architecture, algorithms, models, processes, techniques, user interfaces, database design and architecture, and “know-how” embodying the Services.
Under no circumstances will Customer be deemed to receive title to any portion of the Services, title to which at all times will vest exclusively in Company. This is not a “work made for hire” agreement, as that term is defined in Section 101 of Title 17 of the United States Code. Customer will preserve all Services from any liens, encumbrances, and claims of any individual or entity. Customer will not use any Confidential Information disclosed by Company to Customer in connection with this Agreement to contest the validity of any intellectual property rights of Company or its licensors. Any such use of Company’s Confidential Information will constitute a material, non-curable breach of this Agreement.
9. Third Party Services
In connection with the Services, Company may make available the means to interact with certain services furnished by third parties (e.g., online backup services). Customer understands and agrees that
Company will have no liability whatsoever with regard to those third-party services and that access to those services is provided on an as-is, as-available basis. Customer is responsible for reviewing and accepting any required terms and conditions provided by the providers of those services.
10. Customer Data
Customer grants Company a non-exclusive, world-wide, royalty-free license to use the documents, information, graphics, data, content, and other materials input by Customer into the Services (the “Customer Data”) for purposes of performing this Agreement. Customer will be responsible for obtaining all rights, permissions, and authorizations to provide the Customer Data to Company for use as contemplated under this Agreement.
Except for the license granted in this Section, nothing contained in this Agreement will be construed as granting Company any right, title, or interest in the Customer Data. Customer grants Company a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty free license to use, copy, distribute, and otherwise exploit statistical and other aggregated data derived from Customer’s use of Services (the “Aggregated Data”) for Company’s business purposes, including the provision of products and services to Company’s customers; provided the Aggregated Data is combined with similar data from Company’s other customers and does not include (directly or by inference) any information identifying Customer or any identifiable individual. The Aggregated Data will not be considered Customer’s Confidential Information.
Customer may provide suggestions, comments, or other feedback (collectively, “Feedback”) to Company with respect to its products and services, including the Services. Feedback is voluntary. Company may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Customer’s intellectual property rights to make use of the Feedback, Customer grants Company an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with Company’s business, including the enhancement of the Services.
12. Support and Maintenance
During the Term, Company will provide Customer with reasonable telephone and email support. Company will provide Customer Service updates and bug fixes that Company in its sole discretion makes generally available to its other similarly situated licensees at no charge.
However, Customer shall not be entitled to receive updates or new releases that include new or different functionality for which Company imposes an additional charge to its customers.
Such new or different functionality may be purchased by Customer, in its discretion, at Company’s then current pricing. Company will use commercially reasonable efforts to correct reproducible failures of the Service to perform in substantial accordance with their then current Documentation.
13.1. In general
Customer will pay Company the required fees for the Services. Except as provided in Sections 13.2, and 18, all fees are non-refundable. If payment is made via credit card, Customer will provide Company with a valid credit card against which the fees will be charged on an agreed to basis. Payments not made within agreed to time period will be subject to late charges equal to the lesser of (a) one and one-half
percent (1.5%) per month of the overdue amount or (b) the maximum amount permitted under applicable law. In the event an amount remains unpaid for fourteen (14) or more days from its due date, Company may, in its discretion, suspend the Services until the amount is paid in full. Company may, at its discretion, adjust any or all fees due hereunder on written notice to Customer.
In addition to any other payments due under this Agreement, Customer agrees to pay, indemnify and hold Company harmless from any sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the performance of the Services under this Agreement; excluding, however, income taxes on profits which may be levied against Company.
If Customer is exempt from payment of such taxes, Customer shall furnish reasonable evidence of its tax exemption. If Customer loses tax exempt status, it shall pay any taxes due as part of any renewal or payment. Customer shall promptly notify Company if its tax status changes.
14.1. Customer Warranty
Customer represents and warrants that (a) it has full power, capacity, and authority to enter into this Agreement and to grant the license set forth in Section 9 (Customer Data); (b) any Customer Data provided by Customer to Company for use in connection with the Services does not and will not infringe the intellectual property, publicity, or privacy rights of any person and is not defamatory, obscene, or in violation of applicable foreign, federal, state and local laws, rules and regulations (including but not limited to applicable policies and laws related to spamming, privacy, and consumer protection) (collectively, “Applicable Law”); and (c) its use of the Services will be in compliance with all Applicable Law.
14.2. Company Warranty
During the Term, Company represents and warrants (i) the Services will substantially comply with the Documentation; (ii) it shall use commercially reasonable efforts to screen the Services for viruses, Trojan horses, worms, and other similar intentionally harmful or destructive code; and (iii) it shall comply with Applicable Law in performing this Agreement.
In the event of a breach of the warranty in Section 14.2(i), Company’s sole and exclusive liability and Customer’s sole and exclusive remedy will be to perform the defective Service again. In the event Company is unable through reasonable efforts to correct the defective Service within thirty (30) days from receipt of notice from Customer of the breach, Customer may elect to terminate this Agreement and receive a pro-rated refund of any pre-paid, unused recurring fees for the non-conforming Services.
14.3. Disclaimer of Warranties
EXCEPT AS PROVIDED IN SECTION 14.2 (COMPANY WARRANTY), THE SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND. COMPANY AND ITS VENDORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND TITLE/NON-INFRINGEMENT. NO ORAL
OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF COMPANY’S OBLIGATIONS HEREUNDER. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (e.g., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER’S DATA, WEB SITES, COMPUTERS, OR NETWORKS. COMPANY WILL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. CUSTOMER IS RESPONSIBLE FOR PRESERVING AND MAKING ADEQUATE BACKUPS OF ITS DATA.
15. Company Indemnity
Company will defend and indemnify Customer and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) arising from a claim by a third party that Customer’s licensed use of the Services infringes that third party’s United States patent, copyright, or trade secret rights.
The foregoing indemnification obligation of Company is contingent upon Customer promptly notifying Company in writing of such claim, permitting Company sole authority to control the defense or settlement of such claim and providing Company reasonable assistance (at Company’s sole expense) in connection therewith.
If a claim of infringement under this Section 15 (Indemnity) occurs, or if Company determines a claim is likely to occur, Company will have the right, in its sole discretion, to either (i) procure for Customer the right or license to continue to use the Services free of the infringement claim, or (ii) modify the Services to make it non-infringing, without loss of material functionality. If neither of these remedies is reasonably available to Company, Company may, in its sole discretion, immediately terminate this Agreement and return the prorated portion of any pre-paid, unused fees for the relevant Services.
Notwithstanding the foregoing, Company will have no obligation with respect to any claim of infringement that is based upon or arises out of (i) the use or combination of the Services with any hardware, software, products, data, or other materials not provided by Company, (ii) modification or alteration of the Services by anyone other than Company, (iii) use of Services in excess of the rights granted in this Agreement, or (iv) any specifications or other intellectual property provided by Customer, including the Customer Data (collectively, the “Excluded Claims”).
The provisions of this Section 15 (Indemnity) state the sole and exclusive obligations and liability of Company and its licensors and suppliers for any claim of intellectual property infringement arising out of or relating to the Services or this Agreement, and are in lieu of any implied warranties of non-infringement, all of which are expressly disclaimed.
16. Customer Indemnity
Customer will defend and indemnify Company and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) incurred by Company as a result of any claim by a third party arising from (i) Customer’s use of the Services in breach of this Agreement, (ii) Customer’s failure to obtain all rights necessary to grant Company the licensed provided in Section 9, or (iii) the Excluded Claims.
The foregoing indemnification obligation of Customer is contingent upon Company promptly notifying Customer in writing of such claim, permitting Customer sole authority to control the defense or settlement of such claim and providing Customer reasonable assistance (at Customer’s sole expense) in connection therewith.
17.1. Definition of Confidential Information
Each party agrees that all information supplied by one party and its affiliates and agents (collectively, the “Disclosing Party”) to the other (“Receiving Party”) including, without limitation: (a) source and object code, prices, trade secrets, mask works, databases, hardware, software, designs and techniques, programs, engine protocols, models, displays and manuals, and the selection, coordination, and arrangement of the contents of such materials, and (b) any unpublished information concerning research activities and plans, customers, marketing or sales plans, sales forecasts or results of marketing efforts, pricing or pricing strategies, costs, operational techniques, strategic plans, and unpublished financial information, including information concerning revenues, profits and profit margins, will be deemed confidential and proprietary to the Disclosing Party, regardless of whether such information was disclosed intentionally or unintentionally or marked as “confidential” or “proprietary” (“Confidential Information”).
For the avoidance of doubt, the Services and Documentation are the Confidential Information of Company and the Customer Data is the Confidential Information of Customer.
Confidential Information will not include any information or material, or any element thereof, whether or not such information or material is Confidential Information for the purposes of this Agreement, to the extent any such information or material, or any element thereof: (a) has previously become or is generally known, unless it has become generally known through a breach of this Agreement or a similar confidentiality or non-disclosure agreement; (b) was already rightfully known to the Receiving Party prior to being disclosed by or obtained from the Disclosing Party as evidenced by written records kept in the ordinary course of business of or by proof of actual use by the Receiving Party; (c) has been or is hereafter rightfully received by the Receiving Party from a third person (other than the Disclosing Party) without restriction or disclosure and without breach of a duty of confidentiality to the Disclosing Party; or (d) has been independently developed by the Receiving Party without access to Confidential Information of the Disclosing Party.
17.3. Treatment of Confidential Information
Each party recognizes the importance of the other’s Confidential Information. In particular, each party recognizes and agrees that the Confidential Information of the other is critical to their respective businesses and that neither party would enter into this Agreement without assurance that such information nor the value thereof will be protected as provided in this Section and elsewhere in this Agreement.
Accordingly, each party agrees as follows: (a) the Receiving Party will hold any and all Confidential Information it obtains in strictest confidence and will use and permit use of Confidential Information solely for the purposes of this Agreement; (b) without limiting the foregoing, the Receiving Party will use at least the same degree of care, but no less than reasonable care, to avoid disclosure or use of this Confidential Information as the Receiving Party employs with respect to its own Confidential Information of a like importance; (c) the Receiving Party may disclose or provide access to its responsible employees who have a need to know and may make copies of Confidential Information only to the extent reasonably necessary to carry out its obligations hereunder; (d) the Receiving Party currently has, and in the future will maintain in effect and enforce, rules and policies to protect against access to, or use or disclosure of, Confidential Information other than in accordance with this Agreement, including, without limitation, written instruction to, and agreements with, employees and agents who are bound by an obligation of confidentiality no less stringent than set forth in this
Agreement to ensure that such employees and agents protect the confidentiality of Confidential Information; (e) the Receiving Party expressly will instruct its employees and agents not to disclose Confidential Information to third parties, including, without limitation, customers, subcontractors, or consultants, without the Disclosing Party’s prior written consent; and (f) the Receiving Party will notify the Disclosing Party immediately of any unauthorized disclosure or use, and will cooperate with the Disclosing Party to protect, all proprietary rights in and ownership of its Confidential Information.
17.4. Compelled Disclosures
To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Confidential Information in accordance with such law or order or requirement, subject to the following conditions: as soon as possible after becoming aware of such law, order, or requirement, and prior to disclosing Confidential Information pursuant thereto, the Receiving Party will so notify the Disclosing Party in writing and, if possible, the Receiving Party will provide the Disclosing Party notice not less than five (5) business days prior to the required disclosure. The Receiving Party will use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest, otherwise oppose, or seek to limit such disclosure by the Receiving Party, and any subsequent disclosure or use of Confidential Information that may result from such disclosure.
The Receiving Party will cooperate with and provide assistance to the Disclosing Party regarding such measures. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure will not otherwise affect the Receiving Party’s obligations hereunder with respect to Confidential Information so disclosed.
17.5. Non-Exclusive Equitable Remedy
Each party acknowledges and agrees that due to the unique nature of the Confidential Information there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may allow a party or third parties to unfairly compete with the other party, resulting in irreparable harm to such party, and therefore, that upon any such breach or any threat thereof, each party will be entitled to appropriate equitable and injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either of them might have at law or equity before an arbitrator in accordance with the arbitration provision of this Agreement. Any breach of this Section 16 (Confidentiality) will constitute a material breach of this Agreement and be grounds for immediate termination of this Agreement in the exclusive discretion of the non-breaching party.
NEITHER COMPANY NOR ITS VENDORS AND LICENSORS WILL HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES, TRADING LOSSES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING USE OF OR INABILITY TO USE THE SERVICES. THE TOTAL LIABILITY OF COMPANY AND ITS VENDORS AND LICENSORS TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR USE OF THE SERVICES IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE) WILL NOT EXCEED THE TOTAL FEES PAID HEREUNDER BY CUSTOMER UP TO THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THIS
LIMITATION OF LIABILITY WILL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.
This Agreement will terminate (a) on the thirtieth (30th) day after either party gives the other written notice of a breach by the other of any material term or condition of this Agreement, unless the breach is cured before that day; or (b) upon written notice by either party, immediately, if (i) a receiver is appointed for the other party or its property; (ii) the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes a general assignment for the benefit of its creditors; or (iii) any proceedings (whether voluntary or involuntary) are commenced against the other party under any bankruptcy or similar law and such proceedings are not vacated or set aside within sixty (60) days from the date of commencement thereof.
19.2. Suspension of Services
Notwithstanding any other provision of this Agreement, Company may, in its sole discretion, suspend Customer’s access to the Services for any of the following reasons (a) to prevent damages or risk to, or degradation of, the Services; (b) to comply with any law, regulation, court order, or other governmental request; (c) to otherwise protect Company from potential legal liability; or (d) in the event an amount is due and remains unpaid for more than seven (7) or more days from its due date. Company will use reasonable efforts to provide Customer with notice prior to or promptly following any suspension of the Services. Company will promptly restore access to the Services as soon as the event giving rise to suspension has been resolved. This Section will not be construed as imposing any obligation or duty on Company to monitor use of the Services.
19.3. Effect of Termination
Upon termination of this Agreement or termination of a particular Service for any reason: (a) Customer’s and all End User’s access to and use of the Services will cease as of the effective date of termination; (b) Customer will pay to Company all undisputed sums due to Company for Services through the effective date of such expiration or termination (prorated as appropriate); and (c) at Company’s standard time and materials rates, Company will reasonably cooperate with Customer in transitioning the Customer Data back to Customer.
20. General Provisions
20.1. Affiliates, Subcontractors and Vendors
Some or all of the Services, including support, may be provided by Company’s affiliates, agents, subcontractors and information system vendors. The rights and obligations of Company may be, in whole or in part, exercised or fulfilled by the foregoing entities. Company shall ensure such entities comply with all relevant terms of this Agreement and any failure to do so shall constitute a breach by Company.
Company may identify Customer as a customer in its customer listings, Web sites, and other promotional materials. In addition, Company may issue a press release regarding the parties’ new relationship under this Agreement.
20.3. USA Patriot Act Notice
The U.S. federal USA Patriot Act (“USA Patriot Act”) provides generally for the operator of a communication host and law enforcement to be able to monitor any content, upon request of the operator. Company anticipates fully complying with all its obligations, and availing itself of all its rights, under the USA Patriot Act.
20.4. Force Majeure
Except for the payment of money as described in Section 13 (Fees) of this Agreement, neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, Internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions.
20.5. Entire Agreement; Amendment
This Agreement sets forth the entire agreement between the parties with regard to the subject matter hereof. No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of this Agreement, except as referenced herein.
20.6. Governing Law, Venue, and Limitation of Actions
This Agreement will be construed according to, and the rights of the parties will be governed by, the law of the State of California, without reference to its conflict of laws rules. The parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the state or federal courts (if permitted by law and a party elects to file an action in federal court) located in Los Angeles, California.
This choice of venue is intended by the parties to be mandatory and not permissive in nature, and to preclude the possibility of litigation between the parties with respect to, or arising out of, this Agreement in any jurisdiction other than that specified in this Section. Each party waives any right it may have to assert the doctrine of forum non convenient or similar doctrine or theory or to object to venue with respect to any proceeding brought in accordance with this Section.
No action, regardless of form, arising out of this Agreement, may be brought by either party more than one (1) year after the cause of action has arisen. The prevailing party in any action or proceeding will be entitled to recover its reasonable attorneys’ fees and costs.
20.7. No Third-Party Beneficiaries
There are no third-party beneficiaries to this Agreement.
20.8. Relationship of the Parties
The parties agree that Company will perform its duties under this Agreement as an independent contractor. Nothing contained in this Agreement will be deemed to establish a partnership, joint venture, association, or employment relationship between the parties. Personnel employed or retained by Company who perform duties related to this Agreement will remain under the supervision, management, and control of Company
Customer may not assign this Agreement without the prior written consent of Company.
If any of the provisions of this Agreement are found or deemed by a court to be invalid or unenforceable, they will be severable from the remainder of this Agreement and will not cause the invalidity or unenforceability of the remainder of this Agreement.
Neither party will by mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party will not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement.
The following provisions will survive termination or expiration of this Agreement: 8 (Proprietary Rights), 14.3 (Disclaimer of Warranties), 15 (Company Indemnity) (for claims accruing prior to termination), 16 (Customer Indemnity) (for claims accruing prior to termination), 17 (Confidentiality), 18 (Limitation of Liability and Damages), 19 (Termination), and 20 (General Provisions).
Any written notice or demand required by this Agreement will be sent by registered or certified mail (return receipt requested), personal delivery, overnight commercial carrier, or other guaranteed delivery to the other party at the address set forth herein. The notice will be effective as of the date of delivery if the notice is sent by personal delivery, overnight commercial courier or other guaranteed delivery, as of five (5) days after the date of posting if the notice is transmitted by registered or certified mail. Any party may change the address at which it receives notices by giving written notice to the other party in the manner prescribed by this Section.
20.14. Electronic Signatures – Binding
This Agreement may be accepted in electronic form (e.g., by an electronic or other means of demonstrating assent) and Customer’s acceptance will be deemed binding between the parties. Neither party will contest the validity or enforceability of this Agreement and any related documents, including under any applicable statute of frauds, because they were accepted or signed in electronic form.
Electronically maintained records when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records.