Terms of Service
Last Updated: April 23, 2023
This Service Agreement (this “Agreement”), effective as of the Effective Date referenced in the associated Order Form(s) (the “Effective Date”), is by and between Pure CallerID, a Wyoming limited liability company (“Provider”), and Customer. Please read these Terms of Service carefully before using our SaaS Services.
WHEREAS, Provider provides access to its software-as-a-service offerings to its customers;
WHEREAS, Customer desires to access certain software-as-a-service offerings described herein, and Provider desires to provide Customer access to such offerings, subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
- Definitions.
“Access Credentials” means any user name, 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 Services.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
“Agreement” has the meaning set forth in the preamble.
“Authorized Users” means Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder.
“Collective Materials” means the Provider Materials and Third-Party Materials, collectively.
“Customer” has the meaning set forth in the preamble.
“Customer Data” means information, 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 Services. For the avoidance of doubt, Customer Data does not include Licensed Data, Resultant Data, or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.
“Documentation” means any manuals, instructions, or other documents or materials that the Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
“Effective Date” has the meaning set forth in the preamble.
“Fees” has the meaning set forth in Section 6.1.
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or Provider Systems as intended by this Agreement.
“Indemnitee” has the meaning set forth in Section 9.3.
“Indemnitor” has the meaning set forth in Section 9.3.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, 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.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Licensed Data” means the data that Provider makes available to Customer via the Services.
“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Order Form” means the Order Form entered into by the parties.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Personal Information” means any information relating to an identified or identifiable natural person.
“Process” means to take any action or perform any operation or set of operations that the SaaS Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
“Provider” has the meaning set forth in the preamble.
“Provider Indemnitee” has the meaning set forth in Section 9.2.
“Provider Materials” means the Documentation, and Provider Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, reports, or specifications that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Licensed Data that is proprietary to Provider, Resultant Data, and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.
“Provider Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of Provider or any Subcontractor.
“Provider Systems” means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Provider or through the use of third-party services.
“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, and legal advisors.
“Resultant Data” means data and information related to Customer’s use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
“Services” means the software-as-a-service offering(s) described in each Order Form.
“Subcontractor” has the meaning set forth in Section 2.7.
“Term” has the meaning set forth in Section 11.1.
“Third-Party Materials” means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Provider. Third-Party Materials includes Licensed Data that is not proprietary to Provider. - Services.
2.1 Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Provider hereby grants Customer a revocable, non-exclusive, non-transferable (except in compliance with Section 12.9), non-sublicensable, right to access and use the Services during the Term solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use.
2.2 Licensed Data. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Provider hereby grants Customer a revocable, non-exclusive, non-transferable (except in compliance with Section 12.9), non-sublicensable, right to internally use the Licensed Data solely to use the Services.
2.3 Documentation License. Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12.9) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
2.4 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
(a) Provider has and will retain sole control over the operation, provision, maintenance, and management of the Services and Collective Materials; and
(b) Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and Collective Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Collective Materials; and (iii) conclusions, decisions, or actions based on such use.
2.5 Reservation of Rights. Except as set forth in Sections 2.1 and 2.2, nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Provider Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Provider Materials, and the Third-Party Materials are and will remain with Provider and the respective rights holders in the Third-Party Materials, as more fully set forth in Section 7.1.
2.6 Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services and Collective Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Provider’s services to its customers; (ii) the competitive strength of or market for Provider’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law.
2.7 Subcontractors. Provider may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”).
2.8 Suspension or Termination of Services. Provider may, directly or indirectly, and by use of any lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or Collective Materials, without incurring any resulting obligation or liability, if: (a) Provider receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of Provider specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 2.8 does not limit any of Provider’s other rights or remedies, whether at law, in equity, or under this Agreement. - Use Restrictions; Service Usage and Data Storage.
3.1 Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
(a) copy, modify, or create derivative works or improvements of the Services or Collective Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Collective Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Collective Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Services or Collective Materials or access or use the Services or Collective Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
(e) input, upload, transmit, or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
(f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Provider Systems, or Provider’s provision of services to any third party, in whole or in part;
(g) remove, delete, alter, or obscure any trademarks, specifications, Documentation, EULA, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Collective Materials, including any copy thereof;
(h) access or use the Services or Collective Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Provider customer), or that violates any applicable Law;
(i) access or use the Services or Collective Materials for purposes of competitive analysis of the Services or Collective Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Provider’s detriment or commercial disadvantage; or
(j) otherwise access or use the Services or Collective Materials beyond the scope of the authorization granted under this Section 3.1.
3.2 Licensed Data Restrictions.
(a) Customer shall not:
(i) Derive Personal Information or reidentify a pseudonymized natural person through its use of the Licensed Data.
(ii) use the Licensed Data (i) for the modeling of, or determination of, consumer credit worthiness, consumer credit approval, a consumer’s eligibility for employment or insurance; (ii) for any other purpose of whatsoever kind or nature covered by the federal Fair Credit Reporting Act (15 USC § 1681 et seq.) or any similar state and local laws, statutes, rules and regulations; (iii) for any purpose that is in direct violation of the privacy obligation policy and any other terms and provisions of the Gramm-Leach-Bliley Act (15 U.S.C. Sec. 6801 et seq.) or any other similar state and local statutes, rules and regulations; or (iv) in connection with individual credit, employment or insurance applications.
(iii) use or authorize any third party to use the Licensed Data to market or promote adult or pornographic content, tobacco (including e-cigarettes), alcohol, firearms or ammunition, nutraceuticals, speculative financial products, gambling or betting where not legally permissible, credit repair products, counterfeit products or pirated content, or hate speech.
(iv) use or authorize any third party to use the Licensed Data to reidentify a natural person, by matching a pseudonymous identifier with a name, home address (or zip-11 equivalent), telephone number, government identifier or clear text email address.
(v) resell, re-license or sublicense the Licensed Data.
(b) If Customer uses the Licensed Data to assist its email marketing, the Customer must employ an email verification service or other hygiene process prior to deploying emails to ensure optimal delivery.
(c) The Customer shall not send an SMS message to any recipient without first obtaining explicit consent from the recipient to received SMS messages from the Customer.
(d) Customer shall ensure that it has provided legally sufficient consumer notice and choice mechanisms in compliance with applicable state privacy laws.
(e) Provider may take reasonable and appropriate steps to ensure that Customer uses the Licensed Data solely as permitted in this Agreement. Upon reasonable notice, Provider may require Customer to take reasonable and appropriate steps to remediate Customer’s unauthorized use of the Licensed Data. Without limitation, Provider may require documentation that Customer has complied with any “opt out” preference expressed by a consumer applicable to the Licensed Data.
(f) Provider shall notify Customer within five (5) business days should it determine that it can no longer meet its legal obligations under applicable law with respect to the Licensed Data.
3.3 Service Usage and Data Storage. Each Order Form sets forth Fees for designated Services, beginning with the Fees payable by Customer for the Services, levels of usage, and data storage in effect as of the Effective Date.
3.4 Service Support. The Services include Provider’s standard customer support services (“Support Services”). - Data Backup. The Provider Systems are programmed to perform routine data backups from time to time (“Provider Backups”). In the event of any loss, destruction, damage or corruption of Customer Data caused by the Provider Systems or Services, Provider will, as its sole obligation and liability and as Customer’s sole remedy, use commercially reasonable efforts to restore the Customer Data from Provider’s then most current Provider Backup of such Customer Data in accordance with Provider’s standard practices.
- Security.
5.1 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Collective Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
5.2 Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services. - Fees and Payment.
6.1 Fees. Customer shall pay Provider the fees set forth in the applicable Order Form (“Fees”) in accordance with the terms of each such Order Form and this Section 6.
6.2 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
6.3 Payment. Customer shall pay all Fees within the time frame set forth in the Order Form. Customer shall make all payments hereunder in US dollars by the method ser forth in the Order Form(s). Customer shall make payments to the address or account specified in each Order Form or such other address or account as Provider may specify in writing from time to time.
6.4 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
(a) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
(b) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and
(c) Provider may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
6.5 No Deductions or Setoffs. All amounts payable to Provider under this Agreement shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
6.6 Fee Modification. Provider may modify Fees after the initial Term set forth in Each Order Form for such Service, and each Order Form will be deemed amended accordingly upon any such modification. - Intellectual Property Rights.
7.1 Services and Collective Materials. All right, title, and interest in and to the Services and Provider Materials, including all Intellectual Property Rights therein, are and will remain with Provider and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the Services or Collective Materials except as expressly set forth in Section 2.1 and Section 2.2 or the applicable third-party license, in each case subject to Section 3.1. All other rights in and to the Services and Provider Materials are expressly reserved by Provider. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title, and interest in and to the Resultant Data and any feedback provided by Customer or its Authorized Users to Provider, including all Intellectual Property Rights relating thereto.
7.2 Customer Data. As between Customer and Provider, 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 granted in Section 7.3.
7.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Provider to provide the Services hereunder. - Representations and Warranties.
8.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that:
(a) it is duly organized, validly existing, and in good standing as a corporation, limited liability company, or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
(d) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
8.2 Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Provider that:
(a) Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law;
(b) Customer shall fully comply with all applicable federal, state , and local laws, regulations, and rules regarding telemarketing, telephone solicitations, and calling practices, including but not limited to the following: (i) the Telephone Consumer Protection Act of 1991, as amended (the “TCPA”), and regulations promulgated thereunder, including restrictions on the use of automated telephone equipment, prerecorded messages, and telephone facsimile machines; (ii) any state law equivalents to the TCPA, including state laws restricting the use of automated dialing equipment, prerecorded messages, text messages, and fax machines; (iii) any applicable state and federal do-not-call laws, including any state do-not-call registry (“State Registry”) on which Customer must register; and (iv) any other applicable federal, state, or local laws;
(c) Customer is in full compliance with any applicable state do-not-call registry on which it is required to register, including payment of any fees for state lookups or other compliance obligations; and
(d) Customer shall retain records of compliance with applicable telemarketing laws and calling practices and to provide reasonable access to and copies of such records upon request of the Company.
8.3 DISCLAIMER OF WARRANTIES. ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED “AS IS.” PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS”. CUSTOMER UNDERSTANDS THAT THE LICENSED DATA MAY BE SUBJECT TO ERRORS OF TRANSCRIPTION, CURRENTNESS OR ACCURACY - Indemnification.
9.1 Provider Indemnification. Provider shall indemnify, defend, and hold harmless Customer from and against any and all Losses incurred by Customer resulting from any Action by a third party (other than an Affiliate of Customer) that Customer’s use of the Services in accordance with this Agreement and each Order Form infringes or misappropriates such third party’s US Intellectual Property Rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from:
(a) Third-Party Materials or Customer Data;
(b) access to or use of the Provider Materials in combination with any hardware, system, software, network, or other materials or service not provided by Provider or specified for Customer’s use in the Documentation;
(c) modification of the Provider Materials other than: (i) by or on behalf of Provider; or (ii) with Provider’s written approval in accordance with Provider’s written specification;
(d) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Provider; or
(e) act, omission, or other matter described in Section 9.2(a), Section 9.2(b), Section 9.2(c), or Section 9.2(d), whether or not the same results in any Action against or Losses by any Provider Indemnitee.
9.2 Customer Indemnification. Customer shall indemnify, defend, and hold harmless Provider and its officers, directors, employees, agents, successors, assigns, and the providers of Third-Party Materials (each of the foregoing, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee resulting from any Action by a third party (other than an Affiliate of a Provider Indemnitee) that arise out of or result from, or are alleged to arise out of or result from:
(a) Customer Data, including any Processing of Customer Data by or on behalf of Provider, in accordance with this Agreement;
(b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Provider’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider;
(c) allegation of facts that, if true, would constitute Customer’s breach of applicable law or any of its representations, warranties, covenants, or obligations under this Agreement; or
(d) gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
9.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 9.1 or Section 9.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 9.3 will not relieve the Indemnitor of its obligations under this Section 9, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
9.4 Mitigation. If any of the Services or Collective Materials are, or in Provider’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or Collective Materials is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Services and Collective Materials materially as contemplated by this Agreement;
(b) modify or replace the Services and Collective Materials, in whole or in part, to seek to make the Services and Collective Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Collective Materials, as applicable, under this Agreement; or
(c) by written notice to Customer, terminate this Agreement with respect to all or part of the Services and Collective Materials, and require Customer to immediately cease any use of the Services and Collective Materials or any specified part or feature thereof.
9.5 Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND COLLECTIVE MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. - Limitations of Liability.
10.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE 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, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
10.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF PROVIDER ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. - Term and Termination.
11.1 Term. The term of this Agreement commences as of the Effective Date and will continue thereafter until all Order Forms have expired or otherwise been terminated, unless sooner terminated in accordance with this Section 11 (the “Term”).
11.2 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) Provider may terminate this Agreement or any Order Form, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder;
(b) either party may terminate this Agreement or any Order Form with at least 60-days prior written notice; provided, that the termination of any Order Form pursuant to this Section 11.2(b) will be effective on the last day of the term (as defined in the applicable Order Form) then outstanding after such 60-day period;
(c) either party may terminate this Agreement or any Order Form immediately upon notice by either party if: (i) the other party is in material breach of this Agreement; or (ii) the other party (A) becomes insolvent or files, or has filed against it, a petition for voluntary or involuntary bankruptcy or under any other insolvency law; (B) makes or seeks to make a general assignment for the benefit of its creditors, seeks reorganization, winding-up, liquidation, dissolution, or other similar relief with respect to it or its debts; (C) applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property; or (D) is generally unable to pay its debts as they become due.
11.3 Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
(b) Provider shall immediately cease all use of any Customer Data or Customer’s Confidential Information and (i) promptly return to Customer, or at Customer’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data or Customer’s Confidential Information; and (ii) permanently erase all Customer Data and Customer’s Confidential Information from all systems Provider directly or indirectly controls within 30 days from the date of the expiration or termination of this Agreement, provided that, for clarity, Provider’s obligations under this Section 11.3(b) do not apply to any Resultant Data;
(c) Customer shall immediately cease all use of any Services or Collective Materials and (i) promptly return to Provider, or at Provider’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Collective Materials or Provider’s Confidential Information; and (ii) permanently erase all Collective Materials and Provider’s Confidential Information from all systems Customer directly or indirectly controls;
(d) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party’s Confidential Information; and (ii) Provider may retain Customer Data, in the case of each of subclause (i) and (ii) in its then current state and solely to the extent and for so long as required by applicable Law; (iii) Provider may also retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (iv) all information and materials described in this Section 11.3(d) will remain subject to all confidentiality, security, and other applicable requirements of this Agreement;
(e) Provider may disable all Customer and Authorized User access to the Collective Materials;
11.4 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.1, Section 7.1, Section 7.2, Section 8.2, Section 8.3, Section 9, Section 10, Section 11.3, this Section 11.4, and Section 12. - Miscellaneous.
12.1 Further Assurances. On a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
12.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
12.3 Public Announcements. Either party may issue or release an announcement, statement, press release, or other publicity or marketing materials relating to this Agreement without the prior written consent of the other party.
12.4 Trademarks. Unless expressly permitted under this Agreement, neither party shall use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship (collectively, “Trademarks”), in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Customer hereby grants to Provider a non-exclusive right to use Customer’s Trademarks in Provider’s promotion, advertising, and marketing materials that list or otherwise name current or former customers of Provider without Customer’s prior written consent.
12.5 Notices. Any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to a party at their respective address set forth on the signature page hereto (or to such other address or such other person that such party may designate from time to time in accordance with this Section 12.5). Notices sent in accordance with this Section 12.5 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by email, (with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
12.6 Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. All references to this Agreement include any Order Forms entered into hereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
12.7 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
12.8 Entire Agreement. This Agreement and the Order Forms entered into hereunder constitute the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Order Forms and any other exhibits, schedules, attachments, and appendices (other than an exception expressly set forth as such therein), this Agreement shall govern.
12.9 Assignment. Neither party may assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the other party’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed; provided, that, either party may assign or otherwise transfer this Agreement without the other party’s prior written consent in connection with any merger, consolidation, or reorganization involving such party, or a sale of all or substantially all of such party’s business or assets relating to this Agreement to an unaffiliated third party. Any purported assignment, delegation, or transfer in violation of this Section 12.9 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
12.10 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
12.11 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
12.12 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
12.13 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the state or federal courts located in Denver County, Colorado, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
12.14 Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
12.15 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Section 3.1, Section 3.2, or Section 7.1, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
12.16 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
12.17 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.