Customer’s use of the Sites and Services shall be deemed to constitute Customer’s consent to be bound by this TOU and shall be enforceable in the same way as if Customer had signed this TOU. The TOU may be updated by us from time to time without notice.
If Customer is a direct competitor to Company, Company reserves the right to disallow Customer’s access to the Services.
1.1. Subscription Service. Subject to this TOU, and in consideration of the fees specified in any Order, Company will make the Subscription Service available to Customer throughout the Term (defined in Section 6 below). If Customer purchases a subscription to an optional feature or application developed by Company and purchased and included as part of Customer’s Subscription (an “Add-On”), the Subscription Service will be deemed to include such Add-Ons except as otherwise expressly provided herein. Company hereby grants Customer a worldwide, revocable, non-exclusive, non-transferable right to access and use the Subscription Service during the Term for Customer’s internal business purposes, pursuant to the terms and conditions of this TOU.
1.2. Professional Services. Subject to this TOU, and in consideration of the fees specified in any applicable Order or Statement of Work (“SOW”) that describes any “Professional Services” (meaning, implementation, configuration, integration, training, advisory, and other professional services as developed by Company related to the Subscription Service), the parties may agree for Company to provide Professional Services. Company hereby grants Customer a non-exclusive, non-transferable right to access and use all software, code, materials, ideas, deliverables, and items that are conceived, made, discovered, written, or created by Company’s personnel related to providing the Professional Services during the Term for Customer’s internal business purposes (collectively, the “Work Product”), pursuant to the terms and conditions of this TOU.
2. Use of the Subscription Service; Restrictions.
2.1. Conditions. Company’s provision of the Subscription Service is conditioned on Customer’s acknowledgement and agreement to the following:
(a) Certain types of information included in the Customer Content (defined in Section 24 below) may be subject to specific laws (e.g., laws regarding personally identifiable information, credit card information, etc.). Customer, not Company, is responsible for compliance with any such laws. Without limiting the foregoing Customer represents and warrants that, if applicable, Customer will provide any required notice to, and obtain any required consent from, individuals and/or other entities related to the Customer Content and any personal or otherwise protected information included therein.
(b) Company does not access Customer Content except: (i) as requested by Customer to enable the provision of customer support; and (ii) as necessary for Company to (1) comply with applicable law or legal proceedings, or (2) investigate, prevent or act against suspected abuse, fraud or violation of this TOU. For the avoidance of doubt, Company will treat as confidential any Customer Content accessed pursuant to this Section. Unless prohibited by law, if Company receives a request from an individual to access, amend, or delete their personal information stored as Customer Content or Account Information (defined in Section 24 below) provided by Customer, Company will refer such requests to Customer. Customer will be responsible for responding to such requests as required by applicable law, and Company will provide Customer with reasonable support as necessary to facilitate Customer’s response.
(c) The Subscription Service facilitates the sharing of information within Customer’s organization and potentially outside of Customer’s organization. Between Customer and Company, Customer has exclusive control over the distribution of and access to the Customer Content.
2.2. Login Credentials. Each set of login credentials for the Subscription Service may be used only by a single, individual Customer User (defined in Section 24 below). Customer agrees to promptly notify Company of any unauthorized access or use of which Customer becomes aware. Customer will be responsible for all use and misuse of the Subscription Service that occurs under Customer Users’ login credentials, and for any breach of this TOU by any Customer Users.
2.3. Prohibited Use. Customer will not, and will ensure that Customer Users do not: (a) “frame,” distribute, resell, or permit access to the Subscription Service by any third party other than for its intended purposes; (b) use the Subscription Service other than in compliance with applicable laws; (c) interfere with the Subscription Service, operation of any Company third-party networks, Company servers, or other Company infrastructure, or disrupt any other user’s access to the Subscription Service; (d) reverse engineer, attempt to gain unauthorized access to the Subscription Service, or attempt to discover the underlying source code or structure of the Subscription Service; (e) submit to the Subscription Service any virus, malware or any unauthorized, malicious or destructive feature that is designed to alter any software, program, data, device, system or service, or provide unauthorized access to the Subscription Service; (f) use any robot, spider, data scraping tool, extraction tool, or similar mechanism with respect to the Subscription Service; (g) breach or otherwise bypass any security or authentication measures; (h) use the Subscription Service for phishing scams; or (i) access, tamper with, or use nonpublic areas within the Services or shared areas within the Services to which Customer has not been invited.
Customer agrees that Customer will not, and will not permit others, to use the Services to: (a) use, store, share, host, copy, distribute, display, publish, transmit, or send objectionable content; prohibited content includes content that is or could be deemed: offensive, inflammatory, hateful, defamatory, discriminatory, obscene, abusive, invasive of privacy, or harmful to others; (b) distribute unwanted, unsolicited, or harassing mass e-mail or send unwanted promotional or commercial content, e.g., spam; (c) infringe or misappropriate any Company or third-party copyright, trademark, or other intellectual property, proprietary right, license right, or legal content protection; (d) mislead or confuse others by pretending to be someone else or pretending to represent an organization Customer does not represent; or (e) distribute others’ personal and confidential information (e.g. credit card numbers, confidential national ID numbers, or account passwords) without their permission.
If Customer encounters content that Customer believes violates the above provisions, please report it to Company as soon as feasibly possible at email@example.com. Company reserves the right, but does not assume the obligation, to investigate any violation of this TOU or misuse of the Service.
3. Customer Content; Account Information; Processing of Data.
3.1. Disclosure. The Subscription Service is designed to facilitate collaboration and sharing of Customer Content among Customer Users and, if elected by Customer Users, with third parties. Use of the Subscription Service entails disclosure of some Account Information (e.g., name and email address) to other users. Company will not be responsible for any distribution, publication, display, or other disclosure of Customer Content or Account Information by Customer Users or users with a Company login invited to access (the “Collaborators”) via the Subscription Service.
3.3. Service Providers. In addition, Company may allow service providers who act on Company’s behalf to process Customer Content and Account Information in connection with Company’s provision of the Subscription Service, provided that: (a) such service providers are subject to confidentiality obligations that are substantially as protective of the Customer Content and Account Information as those set forth in this TOU; and (b) Company will be responsible for any breach of this TOU by such service providers.
3.4. Security. Company will provide and maintain commercially reasonable information security policies and safeguards, which include technical and organizational measures, designed to preserve the security, integrity, and confidentiality of the Customer Content and to protect it against unauthorized access and information security threats.
3.5. Treatment at Termination. Upon the effective date of termination, Company has no obligation to retain, and may delete, Customer Content.
3.6. Ownership. As between the parties, Customer retains all right, title, and interest in and to all Customer Content. Customer represents and warrants that it has all rights, permissions, and consents necessary: (a) to submit all Customer Content to the Subscription Service; (b) to grant Company the limited rights to process Customer Content as set forth in this TOU; and (c) for any transfer or disclosure of Customer Content among or by Customer Users and Collaborators.
4. Additional Products and Services.
4.1. Connectors. Customer may (if Customer’s Subscription Service includes one or more Add-Ons that allows for Customer Content to be exported or imported from Customer’s account or Subscription Service to a third-party service or application (a “Connector”)) use Connectors to integrate the Subscription Service with Customer’s accounts or subscriptions to third-party services or applications. In such case, Customer Users may transfer information between the Subscription Service and such third-party services or applications via the Connectors, resulting in the modification of Customer Content or the content and information stored in Customer’s third-party services or applications. Company will have no liability for modification or deletion of Customer Content or data in third-party services or applications through use of a Connector by a Customer User.
4.2. Online Training. Customer may have access to Company’s online training portal and the content therein (the “Training Resources”), if applicable. In such case, Company hereby grants Customer a worldwide, revocable, non-exclusive, non-transferable right to access and use the Training Resources during the Term for Customer’s internal business purposes, pursuant to the terms and conditions herein. Customer acknowledges that the Training Resources are subject to change, and Company does not guarantee the availability of any content. The Training Resources are not part of the Subscription Service.
4.3. Third-Party Applications. Third-party applications and web services developed and owned by third parties (“Partner Apps”) may be available to Customer for use with the Subscription Service. These applications and services are provided by third parties and are not part of the Subscription Service, except where otherwise specified. Third-party applications and services are subject to any end user license agreements that accompany them, and Company has no liability whatsoever with respect to any third-party applications and services. Notwithstanding the foregoing, the payment provisions (and only the payment provisions) of this TOU apply with respect to Partner Apps purchased by Customer under an applicable Order.
4.4. Company API. Company may make an application programming interface (“API”) available to Customer enabling Customer to create and access Customer Content via Customer’s own application. During the Term, Company grants Customer a non-exclusive, non-transferable license to access and use the API solely for Customer’s internal use. Customer shall not use the API to access data or a Company account belonging to a third party unless Customer has entered into Company’s Third-Party Application Developer Agreement and Company has provided Customer with an application ID for authentication purposes.
5. Fees and Payment.
5.1. Fees. In consideration of the Services, Customer will pay the fees specified at the time of purchase or renewal. Unless otherwise specified in an Order, Company may raise the unit price for any Renewal Terms (defined in Section 6 below) to the then-current pricing for the relevant Services. If Customer selects a multi-year Subscription Term for an Order: (a) Customer may elect to pay the total fees for the Subscription Service at the outset in lieu of being invoiced or charged annually; or (b) Customer will be invoiced or charged the annual fees for the Subscription Service on or around the anniversary date of Subscription Effective Date, even if Customer has terminated the Order or otherwise changed its subscription plan. Customer will reimburse Company for reasonable, out-of-pocket expenses incurred by Company while providing Professional Services to Customer. All fees are nonrefundable once paid, except as expressly otherwise provided in this TOU or the applicable SOW or Order.
5.2. Payment. Customer agrees to promptly notify Company of any changes to its billing information. If Customer uses a credit card to make payment hereunder, Customer authorizes Company to charge such credit card on a recurring basis for all applicable fees and taxes. If Customer is invoiced for fees and taxes, all amounts are payable in U.S. dollars net 30 days from the date of the invoice per the invoice instructions unless otherwise specified. Items purchased via an Order, and all renewals, shall be payable in advance. Items purchased via SOW shall have the applicable invoicing instructions included in the SOW. Company reserves the right to correct any billing errors or mistakes that Company identifies even if Company has already issued an invoice or received payment. Customer agrees to notify Company about any suspected billing errors or mistakes within 30 days after the relevant invoice or charge date; failure to do so will result in waiver of Customer’s right to dispute such errors or mistakes. Except as prohibited by law, Company may charge a late fee of one and one-half percent (1.5%) per month on past due amounts. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Company to collect any amount that is not paid when due. Company may accept payment in any amount without prejudice to Company’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due to Company by Customer may not be withheld or offset against amounts due or asserted to be due to Customer from Company. Other than income taxes imposed on Company, Customer will bear all taxes, duties, VAT and all other governmental charges (collectively, “taxes”) resulting from this TOU. If Customer is exempt from any applicable taxes, Customer will provide evidence reasonably satisfactory to Company of Customer’s tax-exempt status. If Customer requires a purchase order, vendor registration form, or other documentation, such requirement will in no way affect or delay Customer’s obligation to pay any amounts due hereunder.
5.3. Refunds. If Customer terminates this TOU for Company’s uncured breach pursuant to Section 6.4 or pursuant to Section 10.2, Customer will be entitled to a prorated refund of prepaid, unused fees for the Subscription Service and if applicable the Training Resources and/or Partner Apps. If Customer terminates a SOW or an Order for Professional Services pursuant to Section 10.3, Customer will be entitled to a prorated refund of the prepaid, unused fees for the Professional Services.
5.4. Resellers and Payment Processors. Customers may elect to purchase certain Services through an authorized reseller (or one of its affiliates) (each a “Reseller”) or elect to pay for the Services through a third party who processes Customer’s payments (each a “Payment Processor”). Customer’s obligation for payment to, and relationship with, such Reseller or Payment Processor is between Customer and such Reseller or Payment Processor. If Customer elects to utilize a Reseller or Payment Processor related to the Services, Customer acknowledges and agrees that information about Customer, this TOU, and any Orders and SOWs may be disclosed to such Reseller or Payment Processor.
5.5. Free Access. If Customer is provided with access to any Service at no charge, Customer acknowledges that (a) the version available to Customer may not include or allow access to all features and functionality available to paid subscribers; and (b) the Service is made available to Customer on an “as is” basis without any warranty, support, maintenance, or other obligation of any kind. Add-Ons provided without charge are not part of the Subscription Service for purposes of this TOU. Company may terminate Customer’s free access to any Service at any time, unless otherwise specified. Any use of a Service at no charge is at Customer’s sole risk and responsibility.
6. Term and Termination.
6.1. Term. This TOU will remain in effect throughout the Term unless earlier terminated as set forth herein.
6.2. Term; Auto-Renewal of Orders. Each Order remains in effect for the initial subscription term (“Initial Term”) specified therein and any subsequent renewal periods (each a “Renewal Term,” and collectively with the Initial Term, the “Term”). AFTER THE INITIAL TERM OF AN ORDER ENDS, ORDERS WILL AUTOMATICALLY RENEW FOR SUCCESSIVE ONE (1) YEAR RENEWAL TERMS UNLESS EITHER PARTY PROVIDES THE OTHER PARTY WRITTEN NOTICE OF NON-RENEWAL AT LEAST 30 DAYS PRIOR TO THE END OF THE THEN-CURRENT TERM. Notwithstanding the foregoing, any non-subscription items purchased via an Order will not automatically renew.
6.3. Term of SOWs. Each SOW remains in effect for the period specified therein. If no period is specified, the SOW will terminate once the Professional Services set forth in the SOW have been completed.
6.4. Termination for Cause; Suspension. Either party may terminate this TOU immediately if the other party breaches any material provision of an applicable Order, SOW, or this TOU, and fails to cure that breach within 30 days of written notice from the non-breaching party identifying the breach. In addition, Company may suspend Customer’s access to the Subscription Service immediately if: (a) Customer fails to make a payment when payment is due; or (b) Customer has (or Company reasonably suspects that Customer has) breached Section 2.3 or misappropriated or infringed Company’s intellectual property or proprietary rights.
6.5. Effect of Termination. Upon expiration or termination of this TOU for any reason: (a) all Orders and SOWs under this TOU will terminate; (b) all rights and obligations of the parties hereunder will cease (except as set forth in Section 6.6 below); (c) Customer will remain obligated to pay for Professional Services rendered through the effective date of termination; and (d) Customer will not be entitled to any refund of fees (except as set forth in Section 5.3 above).
6.6. Survival. The following sections will survive termination or expiration of this TOU: 3.2 (Processing), 3.5 (Treatment at Termination), 3.6 (Ownership), 4.3 (Third-Party Applications), 5.1 (Fees) (with respect to amounts that are accrued but unpaid as of the effective date of termination), 5.2 (Payment), 5.5 (Free Access), 6.6 (Survival), 7 (Proprietary Rights), 8 (Confidentiality), 11 (Limitation of Liability; Damages Exclusion), 12 (Indemnification), 14 (Non-Solicitation), 16 (Notices), 18 (Entire TOU), and 19 (General).
7. Proprietary Rights. As between the parties, Company retains all right, title and interest in and to: (a) the Services, Work Product (except for any Customer confidential information used to develop the Work Product), and the technology and software used to provide them, and all intellectual property and proprietary rights therein; and (b) all electronic and print documentation and other content and data (excluding Customer Content and Account Information) made available through the Services. Except for the user access as set forth in this TOU, this TOU does not convey any of Company’s intellectual property or proprietary rights to anyone, including Customer. Customer agrees that Company will have a perpetual right to use and incorporate any feedback or suggestions for enhancement that Customer or a Customer User provides to Company regarding the Services without any obligation of compensation.
8. Confidentiality of Company Information.
8.1. Company Confidential Information. “Confidential Information” means all non-public, proprietary business, technical, legal, or financial information disclosed to or learned by Customer regarding the business relationship between the parties which Company has identified as confidential at the time of disclosure or that, based on the nature of the information or circumstances surrounding disclosure, Customer should treat as confidential. Confidential Information does not include: (a) information that was generally known to the public at the time disclosed to Customer; (b) information that becomes generally known to the public (other than through a breach of this Section 8 by Customer) after disclosure to Customer; (c) information that was in Customer’s possession free of any obligation of confidentiality prior to disclosure by Company; (d) information that is rightfully received by Customer from a third party without any restriction on disclosure; or (e) information that was independently developed by Customer without reference to, or use of, Company’s Confidential Information. All Confidential Information is provided “AS IS.” COMPANY MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING THE ACCURACY OR COMPLETENESS OF ITS CONFIDENTIAL INFORMATION.
8.2. Use and Disclosure of Confidential Information. Customer: (a) will not use Confidential Information for any purpose except in connection with this TOU; (b) will not disclose, give access to, or distribute any of the Confidential Information to any third party, except to the extent expressly authorized in a separate written agreement signed by Company; and (c) will take reasonable security precautions (which will be at least as protective as the precautions Customer takes to preserve its own confidential information of a similar nature) to keep the Confidential Information confidential. Notwithstanding the foregoing, Customer may disclose the Confidential Information to those of its employees, directors, affiliates, advisors, agents, contractors, and other representatives (“Representatives”) who need to know such information, provided that each such Representative is bound to protect the Confidential Information by confidentiality obligations substantially as protective as this TOU. Customer will be responsible for its Representatives’ disclosure or use of the Confidential Information in violation of this Section 8. Customer will promptly notify Company upon discovery of any unauthorized disclosure or use of the Confidential Information, or any other breach of this Section 8, by Customer or its Representatives. Customer’s (and its Representatives’) obligations under this Section 8 cease to apply to information upon the later of: (i) the termination of this TOU; or (ii) after three (3) years have passed from the date on which the Confidential Information was first disclosed.
8.3. Return of Materials. Upon written request by Company, Customer will: (a) either return or destroy all documents and media in its possession or control that contain the Confidential Information; and (b) certify its compliance with this Section 8.3 in writing. Notwithstanding the foregoing, Customer will not be obligated to erase Confidential Information that is contained in an archived computer system backup that was made in accordance with Customer’s security and/or disaster recovery procedures; provided, however, that any such Confidential Information contained in such archived computer system backup will remain subject to this Section 8.
8.4. Intellectual Property; No Obligation to Disclose. Company retains all rights, title, and interest in and to the Confidential Information, including all intellectual property and proprietary rights therein. The disclosure of the Confidential Information to Customer does not grant or convey any right of ownership of such Confidential Information.
8.5. Required Disclosures. Customer may disclose the Confidential Information to the extent required by law or legal process. In such cases, however, Customer will (except to the extent prohibited by law or legal process from doing so): (a) give Company prior notice of such disclosure so as to afford Company a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure; (b) use diligent efforts to limit disclosure to that which is legally required; and (c) reasonably cooperate with Company, at Company’s expense, in Company’s efforts to ensure that the Confidential Information will be subject to a protective order or other legally available means of protection.
8.6. Injunctive Relief. Customer acknowledges that any actual or threatened breach of this Section 8 may cause irreparable, non-monetary injury to Company, the extent of which may be difficult to ascertain. Accordingly, Company is entitled to seek injunctive relief in addition to all remedies available to Company at law and/or in equity.
10. Representations and Warranties; Disclaimer.
10.1. Authority Warranty. Customer represents and warrants that Customer has the necessary authority to enter into this TOU on behalf of themselves or the entity they are representing, as applicable. If Customer is accepting this TOU in relation to Customer’s use of the Services on behalf of any entity, Customer acknowledges and agrees that this TOU will be enforceable against such entity.
10.2. Limited Warranty for Subscription Service. If Customer has paid fees under this TOU for the Subscription Service, Company represents and warrants that the Subscription Service will operate substantially as described in the online product descriptions written or created by Company and made available on the Company’s Site. Customer must notify Company in writing of any alleged failure by Company to comply with this warranty within 30 days of such failure. Upon receipt of such notice, Company will either: (a) use commercially reasonable efforts to cure or correct the failure, or (b) terminate the applicable Order and issue a prorated refund for the terminated portion of the Subscription Services. The foregoing sets forth Customer’s exclusive rights and remedies and Company’s sole liability for breach of the limited warranty specified herein.
10.3. Limited Warranty for Professional Services. If Customer has paid fees under this TOU for Professional Services, Company represents and warrants that the Professional Services will be provided in a competent and workmanlike manner in accordance with the Order or SOW, as applicable. Customer must notify Company in writing of any alleged failure by Company to comply with this warranty within 30 days following delivery of the Professional Services. Upon receipt of such notice, Company will either: (a) use commercially reasonable efforts to cure or correct the failure, or (b) terminate the Professional Services and issue a prorated refund for the terminated portion of the Professional Services. The foregoing sets forth Customer’s exclusive rights and remedies and Company’s sole liability related to the limited warranty specified herein.
10.4. Disclaimer. Customer acknowledges that the Services may experience periods of downtime, including but not limited to scheduled maintenance. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE IN THIS SECTION 10, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES, AND ANY INFORMATION OR MATERIALS RELATED THERETO OR MADE AVAILABLE THEREFROM, WHETHER EXPRESS OR IMPLIED. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ACCURACY. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME. COMPANY MAKES NO REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE THIRD-PARTY APPLICATIONS AND COMMUNITY CONTENT, AND EXPRESSLY DISCLAIMS ALL RESPONSIBILITY THEREFOR.
11. Limitation of Liability.
11.1. Exclusion of Consequential and Related Damages; Cap on Damages. COMPANY WILL NOT BE LIABLE FOR ANY LOST PROFITS, GOODWILL, OR REVENUES OR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES IN CONNECTION WITH ANY CLAIM OF ANY NATURE, WHETHER IN CONTRACT, TORT, OR UNDER ANY THEORY OF LIABILITY, ARISING UNDER THIS TOU, EVEN IF COMPANY HAS BEEN GIVEN ADVANCE NOTICE OF SUCH POSSIBLE DAMAGES. COMPANY’S ENTIRE LIABILITY UNDER THIS TOU WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO COMPANY UNDER THE ORDER FORM OR SOW TO WHICH THE LIABILITY RELATES DURING THE SIX (6) MONTHS PRIOR TO THE DATE ON WHICH THE LIABILITY AROSE.
11.2. General. Each provision of this TOU that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of this TOU between the parties. The fees for the Services reflect this allocation of risk and limitation of liability. Customer agrees that these provisions apply even if the remedies are insufficient to cover all of the losses or damages of Customer or fails of its essential purpose. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT, THIS LIMITATION WILL NOT APPLY TO CUSTOMER TO THE EXTENT PROHIBITED BY LAW.
Except and to the extent required by applicable law, Customer agrees to indemnify and hold Company and its parent, subsidiaries, affiliates, officers, directors, stockholders, agents, attorneys, employees, partners, licensors and other representatives harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of, or in connection with: (i) the Customer Content; (ii) Customer’s use or access of the Services; (iii) Customer’s connection to the Services; (iv) Customer’s violation of the TOU or applicable law; (v) Customer’s violation of any rights of another; and (vi) any taxes arising in connection with Customer’s purchase or use of the Service in any jurisdiction, domestic or otherwise, including, without limitation, sales and use tax.
13. Publicity. Unless Customer has specifically notified Company to the contrary in writing (email notice permitted), Company may disclose Customer as a customer of Company, and may use Customer’s name and logo on the Sites and in Company’s promotional materials. Company will request Customer’s prior consent for any other uses; such consent to be deemed given if Customer fails to respond to a request within five (5) business days.
14. Non-Solicitation. During the Term and for a period of one (1) year thereafter, Customer will not: (a) hire or attempt to hire any of Company’s employees; or (b) solicit, induce, recruit or encourage any of Company’s employees to terminate their relationship with Company. Notwithstanding the foregoing, Customer will not be precluded from hiring a Company employee pursuant to a general solicitation of employment (e.g., posting a job opening) not specifically directed at Company employees.
15. U.S. Government Agencies. Company provides the Subscription Service for federal government end use in accordance with the Federal Acquisition Regulations and the Defense Federal Acquisition Regulations, as certain sections may apply to the Services. If Customer is a U.S. Government agency utilizing Company’s Services in an official capacity, Customer’s use of the Services shall be subject to this TOU and the TOU Supplement Applicable to U.S. Government Customers.
16. Notices. Customer agrees to receive all communications, agreements, and notices from Company electronically, including by e-mail, in-app notifications through the Subscription Service, or by posting them on the Sites. Customer further agrees such communications provided electronically will satisfy any legal requirement that such communications be in writing. Except where this TOU permits notice to Company via email, all notices provided under this TOU must be in writing and sent via internationally recognized delivery service or certified U.S. mail. Notices sent via email will be deemed given one (1) business day after being sent; notices sent via any other authorized delivery method will be deemed given five (5) business days after being sent. Notices to Company must be addressed as follows: Attn: Legal, 7918 Jones Branch Drive, Suite 800, McLean VA 22102, and for notices permitted to be sent via email, to firstname.lastname@example.org.
17. Assignment. Either party may assign this TOU and any Orders or SOWs in relation to a merger or similar transaction, or to a company acquiring substantially all of its assets, equity, or business, without any requirement to obtain permission for such assignment; otherwise, neither party may assign this TOU or any Orders or SOWs to a third party without the advance written consent of the other party. This TOU and any Orders or SOWs will bind and benefit the parties, their successors, and their permitted assigns.
18. Entire TOU. This TOU and any Orders or SOWs represent the entire agreement between Company and Customer with respect to Customer’s use of the Services.
In the event of a conflict between the payment terms in this TOU and any Order or SOW, the payment terms in the Order or SOW will govern and control. In the event of any other conflict between this TOU and any Order or SOW, this TOU will govern and control. This TOU and any Orders or SOWs expressly supersede: (a) any terms or conditions stated in a Customer purchase order or similar document, whether submitted or executed before or after the Subscription Start Date set forth in the applicable Order; and (b) any other contemporaneous or prior agreements or commitments regarding the Subscription Service or the other subject matter of this TOU. For the avoidance of doubt, this TOU will not supersede any non-disclosure agreement entered into by the parties governing information exchanged prior to Customer’s use of the Services or for purposes unrelated to this TOU. Company expressly agrees that any end-user agreement governing use of the Training Resources and Community Features by Customer Users will be considered null and void and will not supersede this TOU.
19. General. Neither party is liable for delay or default under this TOU if caused by conditions beyond its reasonable control. This TOU and any Orders or SOWs are governed by the laws of the Commonwealth of Virginia, without regard to its conflicts of law rules, and each party hereby consents to exclusive jurisdiction and venue in the state and federal courts located in Fairfax, Virginia for any dispute arising out of this TOU or any Orders or SOWs. Except pursuant to Section 5.1, the waiver of any breach of any provision of this TOU or of any Order or SOW will be effective only if in writing, and no such waiver will operate or be construed as a waiver of any subsequent breach. If any provision of this TOU or of any Order or SOW is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not permitted by law), and the rest of this TOU or the relevant Order or SOW is to remain in effect as written. Notwithstanding the foregoing, if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this TOU or any Order or SOW, the entire TOU or the relevant Order or SOW will be deemed null and void.
20. Binding Arbitration; Class Action Waiver; Statute of Limitations.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. Claims relating to this TOU or the Services will be resolved through final and binding arbitration, except as set forth below.
The parties agree that the TOU affects interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
20.1. Initial Dispute Resolution: The parties agree that most disputes can be resolved without resort to litigation. The parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with each other, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. Accordingly, before initiating a lawsuit or arbitration, Customer agrees to contact Company to attempt to resolve the dispute in good faith.
20.2. Binding Arbitration & Class Action Waiver: If the parties do not reach an agreed-upon solution within a period of 30 days from the time the informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to this TOU (including its formation, performance and breach), the parties’ relationship with each other and/or Customer’s use of the Services shall be finally settled by binding arbitration, conducted by a single arbitrator, administered by the American Arbitration Association under its Commercial Arbitration Rules, excluding any rules or procedures governing or permitting class actions. Thus, THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated in state or federal court located in Fairfax, Virginia.
The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this TOU, including, but not limited to any claim that all or any part of this TOU is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Arbitration will be held in Fairfax, Virginia. If any court or arbitrator determines that this arbitration provision is void or unenforceable for any reason or that the parties are not bound to arbitrate their claims, then the disputes, claims or controversies deemed not to be subject to arbitration must be litigated in state or federal court located in Fairfax, Virginia.
20.3. Statute of Limitations. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or the TOU must be filed within one (1) year after such claim or cause of action arose or be forever barred.
21. Modifications. Company reserves the right to modify this TOU by posting a revised version on the Site, effective as of posting. Continued use of the Subscription Services after the effective date of a revision will constitute Customer’s agreement to the modified TOU. If Customer does not agree to a revision, Customer may terminate this TOU by providing written notice to Company. For the avoidance of doubt, Customer will not receive a refund of fees. Customer’s termination will be effective upon Company’s acknowledgement of such termination, and in no event later than 30 days from Company’s receipt of Customer’s termination notice.
22. Company Communications. Customer agrees to receive electronically all communications, agreements, documents, notices, and disclosures that we provide in relation to the Service (“Communications”). We may provide Communications in a variety of ways, including by e-mail, text, notifications, or by posting them on Company’s Sites or through the Services. Customer agrees that all Communications that Company provides to Customer electronically satisfy any legal requirement that such communications be in writing.
23. Export Law Assurances. Customer may not use or otherwise export or re-export the Services except as authorized by U.S. law and the laws of the jurisdiction in which Company is organized (Delaware). The Services may not be exported or re-exported (a) into (or to a national or resident of) any U.S. embargoed countries (currently Cuba, Iran, North Korea, Sudan, and Syria); or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or Unverified List or Blocked Persons List or Debarred List on Nonproliferation Sanctions List. By using the Services, Customer represents and warrants that Customer is not located in, under control of, or a national or resident of, any such country or on any such list.
24. Definitions (terms not otherwise defined above).
24.1. “Account Information” means personal information about Customer Users provided to Company regarding the creation or administration of Customer User accounts. For example, Account Information includes names, email addresses, and other profile information associated with a Customer User account. Account Information does not include aggregate or de-identified information compiled from Account Information that does not identify Customer, any Customer User, or any other individual
24.2. “Customer Content” means data, information, file attachments, text, images, personally identifiable information, and other content that is (a) uploaded or submitted to the Subscription Service by Customer Users; and/or (b) collected by Customer Users from third parties using “forms” or similar features of the Subscription Service. Customer Content does not include usage, statistical, and technical information related to Customer Content that does not reveal the actual contents of the Customer Content.
24.3. “Customer User” means, collectively, all (a) Licensed Users (defined below); (b) System Administrators (regardless of whether they are Licensed Users); and (c) any Non-Licensed Users (defined below).
24.4. “Licensed User” means a user with certain rights to use the Subscription Service on Customer’s behalf. Customer’s System Administrator(s) may designate any user with a registered Company login as a Licensed User.
24.5. “Non-Licensed User” means a user with a Company login who (a) is not a Licensed User and (b) accepts an invitation to join Customer’s account and have his or her usage managed by Customer’s System Administrator (which encompasses a user with certain administrative control rights over Customer’s subscription plan).
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This is a supplemental agreement (“Supplement”) between Company and U.S. Government customers (the “Customer” or the “Agency”) and applies to the Agency’s use the Services under Company’s TOU.
Terms not defined herein shall have the meanings set forth in the TOU.
The reason for this Supplement is that the Customer, a U.S. Government instrumentality, is obligated to follow federal laws, regulations, and practices, among which are those relating to ethics, advertising and endorsements, tax exemption and immunity, limitations on indemnification, fiscal law constraints, governing law and jurisdiction, dispute resolution, and assignment of contracts.
Company and Agency (the “Parties”) agree that modifications to the TOU available at www.coras.com/terms are appropriate to accommodate the Agency’s legal status, its public mission, and other unique circumstances. Therefore, the TOU is modified by this Supplement as follows.
- Government Entity: As it relates to the Agency’s use of the Service, the word “Customer” in the TOU shall mean the Agency itself and shall not apply to, nor bind (i) the individual(s) who utilize the Company’s Services on the Agency’s behalf, or (ii) any individual users who happen to be employed by, or otherwise associated with, the Agency. Company will look solely to the Agency to enforce any violation or breach of the TOU by such individuals, subject to federal law.
- Advertisements: Company agrees not to serve or display any third-party commercial advertisements or solicitations on any pages within Company’s Sites that display content uploaded by or under the control of the Agency.
- The Parties understand that the Federal Acquisition Regulations (“FAR”) and Defense Federal Acquisition Regulations (“DFAR”) require that Company not include tax in Agency billings unless the tax has been determined by the Agency to be proper for payment.
- Indemnification, Liability, Statute of Limitations: Any provisions in the TOU related to indemnification by Customer, damages, attorneys’ fees, filing deadlines, defense of lawsuits, collection expenses, and settlement are hereby waived. Liability of either party for any breach of the TOU as modified by this Supplement, or any claim, demand, suit or proceeding arising from the TOU or this Supplement, shall be determined under the Federal Tort Claims Act, Contract Disputes Act, or other governing federal authority. Federal Statute of Limitations provisions shall apply to any claim, demand, suit or proceeding arising from the TOU or this Supplement.
- Governing Law and Forum: The TOU and this Supplement shall be governed by, and interpreted and enforced in accordance with, applicable U.S. federal laws without reference to conflict of laws. To the extent permitted by federal law, the laws of the Commonwealth of Virginia, including its choice of law rules, will apply in the absence of applicable federal law. Any arbitration, mediation or other dispute resolution provision in the TOU is hereby waived. The forum for purposes of resolving claims and disputes will be determined in accordance with federal law.
No Automatic Renewal: Company agrees to waive the provision in the TOU allowing Company to automatically charge the Agency upon a renewal date associated with Customer’s account.
- Company agrees to remove the auto-renew default setting for any Agency whose account details page designates an email address that ends in .gov, .mil, .fed, or .us. Instead, Company will notify the Agency to allow the Agency to determine if funds are available and if the Services will be needed for a renewal period.
- Continuity of Services During Dispute: With respect to Section 6 of the TOU, Company agrees to waive the language that would otherwise permit Company to terminate the Subscription contract in the event of an alleged breach of the TOU by the Agency. Instead, recourse against the U.S. for any alleged breach of the TOU must be made under the terms of the Federal Tort Claims Act or as a dispute under the Contract Disputes Act, as applicable. During the resolution of the dispute the Contractor, Company, shall proceed diligently with performance of the contract, pending final resolution of any request for relief, claim, appeal, or action arising under the contract, and comply with any decision of the Agency Contracting Officer.
- Limitation of Liability: The Parties agree that nothing in the limitation of liability provision or elsewhere in the TOU in any way grants Company a waiver from, release of, or limitation of, liability pertaining to any past, current or future violation of federal law.
- No Endorsement: Company agrees that the Agency’s name, seals, logos, trademarks, service marks, trade names, and the fact that the Agency has a presence on the Company Sites and uses its Services, shall not be used by Company in such a manner as to state or imply (in the judgment of a reasonable person) that Company’s Services are endorsed, sponsored or recommended by the Agency or by any other element of the Federal Government, or are considered by the Agency or the Federal Government to be superior to any other Services. Except for pages whose design and content is under the control of the Agency, Company agrees not to display any Agency or Government names, seals, trademarks, logos, service marks, and trade names on Company’s homepage or elsewhere on the Company Sites unless permission to do so has been granted by the Agency or by other relevant Federal Government authority. Company may list the Agency’s name in a publicly available customer list on its homepage or elsewhere so long as the name is not displayed in a more prominent fashion than that of any other third-party customer.
- Neither party may assign its obligations under the TOU as modified by this Supplement to any third party without prior written consent of the other. However, if Agency is using Company’s free Services only, Company may, without the Agency’s consent, assign the TOU as modified by this Supplement to an affiliate or to a successor or acquirer, as the case may be, related to a merger, acquisition, corporate reorganization or consolidation, or the sale of all or substantially all of its assets. Any transfer of Company assets related to the Agency’s paid subscription contract requires review and consent by the Agency, under the procedures found in the FAR and the DFAR.
- Precedence; Further Supplements: If there is any conflict between this Supplement and the TOU, or between this Supplement and other terms, rules or policies on the Company Sites or related to its Service, this Supplement shall prevail. This Supplement constitutes a mutually agreed upon supplement to the TOU; language indicating it alone is the entire agreement between the Parties is waived. Any further supplement must be agreed to in writing by both Parties.
- Posting of Supplement: This Supplement shall be posted with the Company’s online TOU either by incorporation of its text or via an integral link.
BUSINESS CONTINUITY ADDENDUM
- System Recovery. System recovery is the ability to restore your Services in the event of a failure of the Company’s Enterprise Decision Management Platform (“EDMP”). System recovery service levels are split into Recovery Time Objective (“RTO”) and Recovery Point Objective (“RPO”).
RPO means the age of files that must be recovered from backup storage for normal operations to resume if a computer, system, or network goes down because of a hardware, program, or communications failure. RTO means the targeted duration of time within which a business process must be restored after a disaster (or disruption) to avoid consequences associated with a break in business continuity.
This Section explains the RTO and RPO included in your Agreement with the Company. All Services are designed to meet the following Recovery Point Objective and Recovery Time Objective:
Recovery Point Objective
1 Business Day
Recovery Time Objective
1 Business Day
The Company lays out its business continuity plans via our FedRAMP Information System Contingency Plan, Cyber Incident Response Plan, and our Information Spillage Response Procedures (collectively, our “Business Continuity Plan”) to ensure that the Company is able to continue to perform its obligations under your Agreement or where performance is not possible, resume performance as soon as reasonably practicable in the event of a disaster (meaning, an unplanned event which results in a loss of access to and use of the services at the Company’s primary or secondary location, “Disaster”).
The Business Continuity Plan includes (but is not limited to) (1) procedures related to transitioning the Company’s Services from its primary location to a secondary location as necessary to maintain the Services, (2) a communications plan with an identified point of contact in the event of a Disaster, (3) the planning, system administration, system management, and system monitoring activities to maintain access, functionality and performance of the business operations and functionality as described in your Agreement, (4) reference to a secondary location that is geographically separate from the Company’s primary location, (5) planning and disaster recovery testing, and (6) monitoring and analysis of operations at the Company’s primary location. The Company’s Business Continuity Plan is calculated to minimize the disruption of the Services covered by the Plan. The Company reviews the Business Continuity Plan annually, and in the event that the Company’s infrastructure changes, the Company shall revise the Plan as necessary or appropriate. The Company’s secondary location shall have the same functionality as the standard infrastructure capacity for the Services covered by Business Continuity Plan, as it existed at the primary location immediately prior to the Disaster in order to maintain functionality and capacity.
In the event of a Disaster that requires moving the Services from the primary location to the secondary location, the Company will attempt to rebuild the primary location within 90 days of the Disaster event. If the secondary location becomes the primary location, the Company will attempt to rebuild the secondary location within 90 days of the Disaster event.