COMPA SAAS CUSTOMER AGREEMENT
Thank you (“Customer”) for using the Compa Technologies, Inc. (“Company" or “we” or “our” or “us”) proprietary platform which provides information and functionality for use in decision-making in relation to and content of compensation and offers for employment, including without limitation the ability to capture competitive intelligence such as the vesting schedules, benefits, and competing offers (“Platform”). The Platform is operated and provided by or on behalf of Company as a software-as-a-service offering. References to the “Platform” in this Agreement (as defined below) shall be deemed to refer to the specific version of the Platform, including all features, customizations and functionality created under SOW(s), subscribed to by Customer pursuant to an Order (as defined below).
In connection with accepting this Agreement, the parties may have executed one or more documents setting forth purchased Credits (as defined below), Fees (as defined below) due to Company and other terms and conditions with respect to Customer’s use of the Platform, or Customer may have purchased such Credits and accepted such Fees and terms and conditions via the Platform (any of the foregoing, an “Order”). This Compa SaaS Customer Agreement, together with the Data Processing Addendum (as defined in Section 3.4), the CCPA Addendum (as defined in Section 3.5) and all executed Orders (collectively, the “Agreement”) governs Customer’s access, browsing, viewing and other use of the Platform.
Other Agreements: If Customer is a user of our public websites, Customer’s use of such websites is subject to the Compa Terms of Service located at https://www.trycompa.com/legal/tos (“Customer Agreement”), and not this Agreement. If Customer has entered into a separate agreement with Company with respect to Customer’s use of the Platform, such separate agreement, and not this Agreement, governs Customer’s access, browsing, viewing and other use of the Platform.
BEFORE USING THE PLATFORM, PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING ON “ACCEPT”, OR OTHERWISE AGREEING TO THIS AGREEMENT OR USING THE PLATFORM, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN CUSTOMER SHOULD NOT CLICK “ACCEPT,” OTHERWISE AGREE TO THIS AGREEMENT OR USE THE SITE.
IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT IS DOING SO ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE REQUISITE AUTHORITY TO BIND SUCH ENTITY, ITS AFFILIATES AND ALL USERS WHO ACCESS OUR SITES THROUGH SUCH ENTITY’S ACCOUNT TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY, ITS AFFILIATES AND USERS ASSOCIATED WITH IT. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER’S RELATIONSHIP WITH COMPANY IS LIMITED TO BEING A SITE USER, AND NOT AN EMPLOYEE, AGENT, JOINT VENTURER OR PARTNER OF COMPANY FOR ANY REASON, AND CUSTOMER ACTS EXCLUSIVELY ON ITS OWN BEHALF AND FOR ITS OWN BENEFIT, AND NOT ON BEHALF OF OR FOR THE BENEFIT OF COMPANY.
Note for Children. The Platform is not for persons under the age of 18. If Customer is under 18 years of age, then Customer should not use the Platform. By clicking the "I Agree" button, otherwise accepting this Agreement or by otherwise using the Site, Customer represents that Customer and all End Users (as defined below) are at least 18 years of age.
1.1 “ATS Data” means all data contained in Customer's applicant tracking system and/or other system or systems containing data relating to hiring needs and recruitment, to the extent reasonably necessary for Company’s provision of the Platform hereunder. Such systems may be maintained by Customer or a third party.
1.2 “Credit” means a unit representing each offer created by Customer through the Platform. A subscription to the Platform may give Customer a fixed number of Credits to expend per year, and such number will be reduced by one (1) upon each offer made by Customer through the Platform. All Credits expire at the conclusion of each Subscription Term. For clarity, Credits have no independent monetary value, and expiration thereof shall not entitle Customer to any refund or compensation.
1.3 “Critical Error” means a serious error that makes it impossible for an End User to access material functionality of the Platform, such that the Platform is substantially unusable for its intended functionality.
1.4 “Customer Data” means any and all data owned by Customer or its End Users and uploaded or imported into the Platform by or on behalf of Customer (including by End Users), including without limitation HCM Data and ATS Data, including without limitation through the ATS Data API.
1.5 “Data APIs” means the application programming interface(s) from Customer’s third party ATS Data and HCM Data provider(s) as made available to Company in accordance with Section 4.1.
1.6 “Effective Date” means the date on which Customer accepts this Agreement, whether by agreeing to an Order incorporating this Compa SaaS Customer Agreement by reference or otherwise.
1.7 “End Users” means Customer’s individual employees who use the Platform in accordance with this Agreement.
1.8 “Fees” means, individually and collectively, the fees and expenses set forth in each Order and SOW hereunder.
1.9 “HCM Data” means data contained in Customer's human capital management system, human resource information system, human resource management system, and/or any other system containing data related to workforce management. Such systems may be maintained by Customer or a third party.
1.10 “Implementation Services” has the meaning set forth in Section 4.1.
1.11 “Intellectual Property Rights” means all forms of proprietary rights, titles, interests, and ownership relating to patents, copyrights, trademarks, trade dresses, trade secrets, know-how, mask works, droit moral (moral rights), and all similar rights of every type that may exist now or in the future in any jurisdiction, including without limitation all applications and registrations therefore and rights to apply for any of the foregoing.
1.12 “Order” has the meaning set forth in the second paragraph of this Agreement.
1.13 "Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity
1.14 “Platform” has the meaning set forth in the first paragraph of this Agreement.
1.15 “Services” means any services related to Customer’s use of the Platform which Company may agree to perform for Customer hereunder as more particularly specified on a Statement of Work, including the Implementation Services and (by way of example) Platform configuration and customization services, custom reports and provision of custom features or functionality and user interface customizations.
1.16 “Statement of Work” or “SOW” means each written agreement for Services to be performed subject to this Agreement which is executed by authorized representatives of each party.
1.17 “Subscription Term” shall have the meaning set forth in the applicable Order.
2. THE PLATFORM.
2.1 Provision of the Platform. Subject to all terms and conditions of this Agreement, following completion of any Implementation Services, Customer shall have the right to access and use the Platform during the Term solely in the manner enabled by Company and in accordance with all applicable documentation. Customer’s use shall be expressly subject to available Credits, if applicable. Company reserves the right to set reasonable usage limitations from time to time, including ingestion and storage limits and other limits and restrictions applicable to Customer’s use of the Platform. Company reserves the right to modify and update the features and functionality of the Platform from time to time. Company may provide updates and upgrades to the Platform from time to time, at its sole discretion. To the extent such updates and upgrades are provided, they will become part of the Platform hereunder. Except for as expressly set forth herein, Customer is solely responsible for purchasing and configuring all hardware, software and services that may be necessary or desirable for Customer’s use of the Platform. Customer agrees to use the Platform in compliance with all applicable laws, rules and regulations, and Customer agrees that it is solely responsible for its compliance with all such applicable laws, rules, and regulations.
2.2 Restrictions. Customer acknowledges that use of the Platform is provided hereunder solely for Customer’s benefit, and agrees not to use the Platform for the benefit of any other third parties. Customer agrees not to, not to attempt to, nor allow any third party to: (i) copy, distribute, rent, lease, lend, sublicense or transfer the Platform, make the Platform available to any third party (except as expressly permitted under Section 2.1) or use the Platform on a service bureau or time sharing basis, (ii) decompile, reverse engineer, or disassemble the Platform or otherwise attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Platform, (iii) create derivative works based on the Platform; (iv) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Platform or during the use and operation thereof; (v) publicly disseminate performance information or analysis (including benchmarks) relating to the Platform; (vi) utilize any software or technology designed to circumvent any license keys or copy protection used in connection with the Platform; (vii) scrape, export, store, or otherwise retain any copies of raw data which Customer may access through Platform; (viii) use the Platform to develop a competitive product offering; or (ix) use the Platform in a manner which violates or infringes any laws, rules, regulations, third party Intellectual Property Rights, or third party privacy rights. Customer may not use any automated means, including agents, robots, scripts, or spiders, to access or manage the Platform, except solely to the extent as may be specifically enabled and authorized by the Company in writing.
2.3 Suspension/Termination. Company may terminate Customer’s access to or use of the Platform and/or terminate this Agreement at any time if: (i) in the sole discretion of Company, such action is necessary to prevent material errors or harm to any system or network, or to limit Company’s liability; or (ii) Customer or any End User attempts to access or use the Platform in an unauthorized manner, including without limitation any attempt to gain access to data or information relating to other Company customers or any use that infringes third party Intellectual Property Rights or violates any applicable law, rule or regulation.
2.4 Accounts. Customer is solely responsible for the activities of any and all Persons accessing and using the Platform using any Platform username and password or account credentials, as applicable (“Credentials”). Customer shall, and shall instruct its End Users to, use all reasonable means to secure Credentials, and shall promptly notify Company if it suspects that any Credentials have been compromised. Each Platform account may only be accessed and used by the Customer’s End Users in accordance with this Agreement. Customer acknowledges that use of a Platform account by any Person other than permitted End Users shall constitute a material breach of this Agreement.
2.5 Third-Party Services and Modifications. The Platform may include features or functionality that interoperate with online services operated by third parties (such services, “Third-Party Services”), pursuant to agreements between Company and the operators of such Third-Party Services (such agreements, “Third-Party Agreements” and such operators, “Operators”) or through application programming interfaces or other means of interoperability made generally available by the Operators (“Third-Party APIs”) which Company does not control. Third-Party Agreements and Third-Party APIs (and the policies, terms and rules applicable to Third-Party APIs) may be modified, suspended or terminated at any time. Any such modification, suspension or termination shall not affect any payment obligations under this Agreement and Company shall have no liability with respect thereto. Without limiting the foregoing, Customer is responsible for ensuring that Customer’s use of the Platform in connection with Third-Party Services complies with all policies, terms and rules applicable thereto.
2.6 Availability. Customer acknowledges and agrees that the Platform may be unavailable (in whole or in part) from time to time, including without limitation due to: (i) equipment, software or service malfunctions; (ii) maintenance, update or upgrade procedures or repairs; or (iii) causes beyond the control of Company, including, without limitation, interruption or failure of telecommunication or digital transmission links, malicious attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures, and that Company shall not be liable for any unavailability caused by any of the foregoing.
2.7 Support. Provided that Customer timely makes all payments due under this Agreement, Company shall provide technical support to Customer regarding use of the Platform. Such technical support shall consist of answering questions from End Users regarding use of the Platform and using commercially reasonable efforts to repair any errors within the Platform during the hours of 9:00AM to 5:00PM Pacific Time, Monday through Friday. Customer may submit requests for technical support through e-mail. Only the Customer’s designated administrative contact(s) (each an “Administrative Contact”) may request technical support. For clarity and avoidance of doubt, Company will not accept support requests from an End User if that End User is not also an Administrative Contact. Company will use commercially reasonable efforts to respond to each case within forty-eight (48) hours, and to Critical Errors within one (1) hours, and will use commercially reasonable efforts to promptly resolve each case. Actual resolution time will depend on the nature of the case and the resolution. A resolution may consist of a fix, workaround or other solution in Company’s reasonable determination. Technical support does not include providing assistance or advice regarding anything other than use of (or errors within) the Platform.
2.8 Changes. The parties may execute additional Orders to, for example, change the version of the Platform applicable hereunder to, for example, modify the number of Credits available to Customer. Such additional Orders shall be subject to applicable Fees based on Company’s then-current price sheet. Customer acknowledges that such modifications may require a lead time of fourteen (14) days for Company to implement. No Order shall be valid unless mutually executed by authorized representatives of the parties.
2.9 Pilot Feedback. At least one time per month during the Term, Customer will make available at least three (3) of its End Users to provide Feedback (as defined in Section 6.1 on the Platform, using a meeting technology identified by the Company. Each such Feedback session may last up to one (1) hour, unless otherwise agreed. To the extent Feedback contains Customer’s Confidential Information, such Confidential Information shall be subject to Company’s confidentiality obligations in Section 11.
3.1 Control. Customer acknowledges and agrees that Company will not, and has no obligation to, monitor or edit the Customer Data, and that as between the parties Customer is solely responsible for the Customer Data, including without limitation, its format, integrity, accuracy, maintenance, and its compliance with all applicable laws, rules, and regulations. Company reserves the right to remove any Customer Data which Company becomes aware may violate the terms of this Agreement, any applicable law, rule, or regulation, or infringe, misappropriate or violate any third-party Intellectual Property Right or privacy right.
3.2 Customer Data. As between the parties, Customer shall own all right, title and interest in and to Customer Data. Customer hereby grants Company a non-exclusive, worldwide license to use, reproduce, modify, create derivative works of, display, perform and transmit the Customer Data in connection with: (i) Customer’s and End Users’ use of the Platform and for otherwise performing its obligations hereunder; (ii) improving the Platform and Company’s products and services (including by machine learning techniques); (iii) use on an aggregate or anonymized basis in the provision of the Platform to our other customers and their end user; and (iii) as may be permitted under Section 11. Except as expressly provided for in the foregoing sentence, Company will not, share or transmit any Customer Data in any form or format to any third party without the prior written consent of Customer, except that Company may provide Customer Data to its third-party contractors and service providers for use on behalf of Company as contemplated hereunder.
3.3 Usage Data. As between the parties, Company shall own all right, title and interest in and to all data generated by the Platform or collected by Company in relating to the operation of the Platform and Customer’s use thereof (“Usage Data”). Usage Data may include, by way of example and not limitation, when and how often End Users use the Platform and which Platform features are used the most often. Company will not disclose Usage Data to any third party in a manner that identifies Customer or any End User without Customer’s consent other than (i) disclosure to the Company’s third-party contractors and service providers for use on Company’s behalf; or (ii) as may be permitted under Section 11.
3.4 Data Processing Addendum. The parties agree to execute the Data Processing Addendum (currently available at [URL]) on the Effective Date.
3.5 CCPA Addendum. The parties agree to execute the California Service Provider Addendum (currently available at [URL]) on the Effective Date.
4.1 Implementation Services. The “Implementation Services” are the Services described in this Section 4.1, unless otherwise agreed by the parties. Company’s provision of the Platform is dependent, without limitation, on (i) successful integration of the Data API(s) with the Platform; and (ii) completion of all applicable tasks described in the Proposal. Promptly upon execution of this Agreement, Customer shall provide Company all necessary access credentials, information and assistance required to perform such integration and other tasks, including, as applicable, by making available such resources of Customer’s Data API provider(s) as reasonably necessary to complete such integration. To the extent any Data API is provided by a third party, Customer represents, warrants and covenants to Company that Company’s Platform integration of and ongoing connection throughout the Term with the Data API(s) is permitted under Customer’s agreement with the applicable Data API provider(s). For clarity, Company’s ongoing provision of the Platform is dependent on the Data API connection(s), and Company shall have no liability in connection with unavailability of the Data API(s). Upon both such integration and completion of other tasks identified in the Proposal, and subject to the remainder of this Section 4, Company shall promptly take such additional steps as necessary to make the Platform available to Customer in accordance with this Agreement. The Implementation Services shall be deemed complete upon Company notifying Customer that the Implementation Services are complete.
4.2 SOWs. The parties may agree from time to time that Company shall perform additional Services for Customer pursuant to an SOW. Each SOW shall identify the following: (i) the nature of the Services; (ii) the deliverables, if any, to be provided by Company to Customer in connection with such Services and the acceptance criteria and process therefor; (iii) a time schedule for estimated performance of Services by Company; and (iv) labor rates and/or amount of payment for Services, including any expenses which are to be reimbursed. Unless otherwise agreed in writing by both parties, the labor rates delineated in each SOW shall apply to that SOW. No changes to an SOW will be effective unless and until memorialized in a written change order or additional SOW signed by both parties. Except to the extent otherwise provided for in an SOW, any deliverables under an SOW that are Platform features or functionality shall, upon payment therefor by Customer under such SOW, constitute part of the Platform made available to Customer hereunder. Customer’s rights with respect to any tangible deliverables that are provided to Customer shall be as set forth in the applicable SOW. To the extent an SOW does not provide for such rights, Customer shall be deemed to have been granted, upon payment of all fees due under the applicable SOW, a limited, non-exclusive license during the Term to internally use such deliverable solely in direct connection with its authorized use of the Platform. For the avoidance of doubt, any Platform features or functionality do not constitute tangible deliverables.
4.3 Performance of Services. Customer acknowledges that the Services will be performed on the basis of Company using its reasonable efforts and judgment based on the information available to Company. To the extent Company utilizes subcontractors in the performance of the Services, it shall remain liable for their performance hereunder.
4.4 Customer Resources. Customer shall provide, maintain and make available to Company, at Customer’s expense and in a timely manner, the following resources, and such other additional resources as are specified in the applicable SOW or as Company may from time to time reasonably request in connection with Company’s performance of the Services: (i) qualified Customer personnel or representatives who will be designated by Customer to consult with Company on a regular basis in connection with the Services and provide Company with documentation or other information necessary to perform the Services; (ii) access to Customer’s premises and appropriate systems and/or workspace for Company personnel at Customer’s premises if necessary for performance of portions of the Services to be performed at Customer’s premises; and (iii) access to Customer Data (collectively, the “Customer Resources”).
4.5 Effect of Customer Failure or Delay. Company is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement. In the event of any such delay or failure, Company may, by written notice to Customer, extend all or any subsequent due dates set forth in the applicable SOW that Company deems reasonably necessary. The foregoing is in addition to, and not in lieu of, all other remedies Company may have for any such failure or delay by Customer.
5.1 Fees. Customer shall pay Company the Fees as set forth in each Order and SOW. All recurring Fees under an Order shall be due and payable in advance of the applicable billing period. Company may increase Fees under any automatically renewing Order, effective on the commencement of the next Subscription Term, by providing Customer notice thereof at least forty-five (45) days prior to the effective date of such renewal.
5.2 Payment Terms. Unless otherwise stated by the parties in an Order or SOW, Company shall invoice Customer for Fees on the timing set forth in each applicable Order. Customer agrees to pay each invoice within thirty (30) days of the invoice date, provided that fees due in advance under an Order must be received by Company when due regardless of the invoice date. All payments will be made in U.S. dollars. Any amounts due Company under this Agreement not received by the date due will be subject to a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less. Customer shall pay the amounts due under each invoice without deducting any taxes that may be applicable to such payments. Customer is responsible for paying any and all withholding, sales, value added or other taxes, duties or charges applicable to this Agreement, other than taxes based on Company’s income.
5.3 Credit Overage. Customer understands that Customer’s usage of the Platform is based upon the number of purchased Credits remaining for the current Subscription Term after deducting used Credits. In the event that Customer expends all available purchased Credits, Customer may be permitted to continue use of the Platform uninterrupted, provided however, that Company will bill, and Customer agrees to pay, Company’s then-standard rates per-Credit for each offer created by Customer through the Platform once Customer’s purchased Credits are expended.
6.1 Company. As between the parties, Company owns all right, title and interest (including all Intellectual Property Rights) in and to the Platform, Usage Data and any software, technology, materials and information (i) owned by Company prior to the Effective Date or (ii) created, authored, developed, made, conceived, or reduced to practice by Company after the Effective Date (collectively, the “Company Materials”). Nothing herein shall be construed to transfer any rights, title or ownership of the Company Materials or any Company software, technology, materials, information or Intellectual Property Rights to Customer. Except as set forth in Section 2.9, Customer is not required to provide any ideas, feedback or suggestions regarding any of Company’s products or services (“Feedback”) to Company. To the extent Customer provides any Feedback to Company, Customer agrees to assign and hereby does assign all right, title and interest in and to such Feedback to Company and acknowledges that Company may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other consideration to Customer.
6.2 Customer. As between the parties, Customer owns all right, title and interest (including all Intellectual Property Rights) in and to the Customer Data, and any software, technology, materials and information owned by Customer prior to the Effective Date or created, authored, developed, made, conceived or reduced to practice solely by Customer and without Company’s assistance after the Effective Date (collectively, “Customer Materials”). Nothing herein shall be construed to transfer any rights, title or ownership of the Customer Materials or Intellectual Property Rights therein to Company.
7. TERM; TERMINATION
7.1 Term. This Agreement shall be effective as of the Effective Date, and shall continue in full force and effect until the expiration or termination of all Orders and SOWs (the “Term”). Each SOW shall be in effect for the term stated therein.
(a) Either party may terminate an individual Order or SOW in accordance with the termination provisions (if any) described in the applicable Order or SOW.
(b) Either party may terminate this Agreement or any applicable SOW or Order effective immediately if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within thirty (30) days (or ten (10) days in the event of breach of payment obligations) after receiving written notice of the breach from the non-breaching party.
(c) Either party may terminate this Agreement immediately upon written notice at any time if: (i) the other party files a petition for bankruptcy or is adjudicated as bankrupt; (ii) a petition in bankruptcy is filed against the other party and such petition is not removed or resolved within sixty (60) calendar days; (iii) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law; (iv) the other party discontinues its business; (v) a receiver is appointed over all or substantially all of the other party’s assets or business; or (vi) the other party is dissolved or liquidated.
7.3 Effect of Termination. All rights and obligations of the parties hereunder shall terminate upon expiration or termination of this Agreement, provided that Sections 1, 2.2, 2.3, 2.5, 3, 5 (with respect to accrued but unpaid Fees), 6, 7.3, 9, 10, 11, 12 and 13 shall survive expiration or termination of this Agreement. Company may retain copies of the Customer Data for the uses specified in Section 3.2 and 3.3. Customer shall not be due any refund for prepaid fees in the event of any termination of this Agreement. In addition, upon any termination, Customer will pay Company for all conforming Services rendered by Company and deliverables accepted by Customer prior to the effective date of such termination, and will reimburse Company for any out-of-pocket third-party expenses incurred by Company in the performance of any SOW which expenses cannot be mitigated by Company through commercially reasonable efforts.
8. REPRESENTATIONS AND WARRANTIES
8.1 Mutual. Each party represents and warrants to the other party that: (i) it has the full power and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid and binding obligation when executed and delivered.
8.2 Customer. Customer represents and warrants to Company that: (i) it has all right, title, and interest in and to the Customer Data necessary for its use in connection with the Platform; (ii) it will not use the Platform or any outputs or insights generated from use thereof, or any deliverables resulting from the Services in a manner or in connection with any activity that would violate any law, rule or regulation; (iii) it has obtained all necessary consents and permissions required for its collection of the Customer Data and use of the Customer Data as contemplated under this Agreement; and (v) the Customer Data (including the storage, reproduction, transfer, and use thereof as contemplated hereunder) does not and will not (x) infringe upon, violate, or misappropriate the Intellectual Property Rights of any third party, (y) slander, defame, or libel any person, or (z) violate any applicable laws, rules, or regulations.
8.3 Company. Company represents and warrants to Customer that it shall perform the Services in a professional and workmanlike manner. Customer’s sole remedy, and Company’s exclusive liability, with respect to any breach of the representation and warranty set forth in this Section 8.3 is, at Company’s election, (i) Company’s re-performance of the non-compliant Services such that they are compliant or (ii) termination of the applicable SOW to the extent it relates to such non-compliant Services and refund of a proportionate amount of the Fees paid under such SOW to the extent such amount relates to such non-compliant Services.
9.1 Customer Indemnity. Customer agrees to, at its own expense, indemnify, hold harmless, defend and/or settle any claim, action or suit brought by a third party (including a Customer’s client) against Company or its directors, officers or employees (“Company Indemnitees”) arising out of or relating to Customer’s (or its End Users) use of the Platform, Customer’s gross negligence, willful misconduct, breach of representations, warranties and or covenants in this Agreement, or alleging that Customer Data or Customer’s use of the Platform in breach of this Agreement, infringes or misappropriates such third party’s Intellectual Property Rights or violates applicable laws, rules, or regulations (a “Claim”).
10. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND COMPANY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. COMPANY AND ITS SUPPLIERS, LICENSORS, PARTNERS AND SERVICE PROVIDERS DO NOT WARRANT THAT THE FUNCTIONALITY AND DATA PROVIDED BY THE PLATFORM WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. COMPANY DOES NOT WARRANT THE RESULTS OF USE OF THE PLATFORM, OR ANY COMPANY MATERIALS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER ACKNOWLEDGES THAT NOTHING IN THIS AGREEMENT NOR ANY COMMUNICATION OF ANY KIND BY ANY COMPANY PERSONNEL SHALL BE CONSTRUED TO BE A REPRESENTATION OR WARRANTY THAT THE RESULTS PROVIDED BY THE PLATFORM, THE PLATFORM OR COMPANY MATERIALS SHALL BE ACCURATE.
11. CONFIDENTIALITY. Each party shall keep confidential the terms of this Agreement, all information and materials provided or made available by the other party, whether or not marked as confidential or proprietary, (for orally disclosed information) that the receiving party knows or should have reasonably known is confidential or proprietary at the time of disclosure (“Confidential Information”). For clarity, the features, functionality and content of the Platform (including all data and information made available by the Company via the Platform), any Platform documentation, the Fees charged hereunder and any information regarding planned modifications or updates to the Platform or other Company products and services constitutes Confidential Information of Company. Subject to Section 3.2, the Confidential Information of Customer includes the Customer Data. Each party shall keep and instruct its employees and agents, and in the case of Company, its third-party contractors, to keep Confidential Information confidential by using at least the same care and discretion as used with that party’s own confidential information, but in no case less than a prudent and reasonable standard of care. Neither party shall use Confidential Information other than for purposes of performing its obligations hereunder or as authorized by the disclosing party. Information or materials shall not constitute Confidential Information if it is: (i) in the public domain through no fault of the receiving party, (ii) known to the receiving party prior to the time of disclosure by the disclosing party, (iii) lawfully and rightfully disclosed to the receiving party by a third party on a non-confidential basis, (iv) developed by the receiving party without reference to Confidential Information or (v) required to be disclosed by law or legal process, provided that the receiving party promptly provide notice to the disclosing party of such request or requirement so the disclosing party may seek appropriate protective orders. If any party, its employees or agents breaches or threatens to breach the obligations of this Section 11, the affected party may seek injunctive relief from a court of competent jurisdiction, in addition to its other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.
12. LIMITATION OF LIABILITY.
12.1 DAMAGES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT WILL COMPANY’S LIABILITY AND DAMAGES UNDER THIS AGREEMENT EXCEED THE SUM OF THE TOTAL FEES PAID TO COMPANY UNDER THIS AGREEMENT DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. THE PARTIES AGREE THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY SET FORTH IN THIS SECTION 12 WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND REGARDLESS OF THE THEORY OF LIABILITY.
12.2 CUSTOMER DECISIONS. INFORMATION PROVIDED BY THE PLATFORM ARE PROVIDED FOR INFORMATIONAL PURPOSES. CUSTOMER IS SOLELY RESPONSIBLE FOR ALL DECISIONS REGARDING THE CONDUCT OF CUSTOMER’S BUSINESS, AND UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE FOR SUCH DECISIONS OR THE CONSEQUENCES OF SUCH DECISIONS, REGARDLESS OF THE EXTENT TO WHICH SUCH DECISIONS MAY BE MADE IN RELIANCE ON PREDICTIONS AND OTHER INFORMATION PROVIDED BY THE PLATFORM.
13.1 Relationship of the Parties. The parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. No party shall have any right to obligate or bind any other party in any manner whatsoever.
13.2 Non-Exclusivity. This Agreement is non-exclusive and does not restrict or prevent Company in any way from (a) entering into similar relationships with third parties and (b) providing similar or identical materials, information, data, products, services, or technologies to other parties.
13.3 Third-Party Beneficiaries. Except as expressly set forth in this Agreement, nothing herein shall give, or is intended to give, any rights of any kind to any third parties.
13.4 Assignment. Customer may not assign any of its rights or obligations under this Agreement without the prior written consent of Company. For purposes of this Section 13.4, Customer’s merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to this Agreement or similar transaction shall be deemed assignment events requiring Company’s consent. This Agreement inures to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors. Any purported assignment in violation of the foregoing is null and void.
13.5 Force Majeure. Except for payment obligations, neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
13.6 Notices. All notices under the terms of this Agreement shall be given in writing and sent by registered or certified mail, with postage prepaid and return receipt requested, to the addresses noted in the signature section of this Agreement. All notices shall be presumed to have been given three business days following deposit in the mail as set forth in the foregoing.
13.7 Amendments. An amendment of this Agreement shall be binding upon the parties so long as it is in writing and executed by both parties. No regular practice or method of dealing between the parties shall modify, interpret, supplement or alter in any manner the express terms of this Agreement.
13.8 Construction. In the event of a conflict between the terms of this Agreement and any Order or SOW, the terms of this Agreement shall control unless the parties explicitly state otherwise in an Order or SOW, and in such instances the terms of such Order or SOW will control only as to the subject matter discussed and only for that Order or SOW. This Agreement shall be fairly interpreted and construed in accordance with its terms and without strict interpretation or construction in favor of or against either party. Each party has had the opportunity to consult with counsel in the negotiation of this Agreement. Section headings are for reference purposes only, and should not be used in the interpretation hereof.
13.9 Severability; Waiver; Counterparts. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect. This Agreement may be signed in counterparts. Each of them is an original, and all of them constitute one agreement.
13.10 Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without reference to conflicts of laws principles. The parties agree that the state and federal courts in San Francisco, California will have exclusive jurisdiction and venue under this Agreement, and the parties hereby agree to submit to such jurisdiction exclusively.
13.11 Publicity. Subject to Customer’s prior written consent, which shall not be unreasonably withheld, Company may use Customer’s name and logo for the purpose of listing Customer as a client of the Company in external communications, marketing materials and on Company’s website.
13.12 Entire Agreement. This Agreement constitutes the complete, final and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.