Terms & Conditions
Last updated December 6th, 2024.
1. Definitions
The following terms shall have the meanings ascribed below:
“Applicable Data Protection Laws”: any privacy or data security law, statute, ordinance, regulation, or governmental rule governing Personal Data.
“Content”: any publicly available information or information provided by third-party providers made available hereunder.
“Documentation”: the guides, policies, online help, release notes, training materials, administrative, physical, and technical safeguard descriptions protecting the security, confidentiality, and integrity of Identified End User Data, and other documentation provided or made available by Company hereunder, as updated from time to time, regarding the use or operation of the SaaS Services.
“Hosting Provider”: a third-party providing server hardware, disk storage, firewall protection, server operating systems, internet bandwidth, and connectivity management programs and web server programs in connection with the SaaS Services.
“Identified End User(s)”: permissible entities selected by and identified by Licensee on a SaaS Services Schedule to whom Licensee may supply a user identification and password for authentication and obtaining access to SaaS Services hereunder. Unless otherwise expressly authorized in writing by Company, Identified End Users may not include entities intending Manufacturer approved or Managed Tier 1 or Tier 2 programs or who themselves constitute an advertising agency, advertising association, or media organization.
“Identified End User Data”: all Personal Data provided by Licensee or its Identified End User to Company hereunder.
“Malicious Code”: viruses, worms, time bombs, Trojan horses, and any other harmful or malicious code, files, scripts, agents, or programs.
“Other Services”: all technical and non-technical services provided by Company, including without limitation, implementation services, consulting, professional and/or customer services, training, and other services, but excluding the SaaS Services. Other Services will be provided on a time and material basis at such times or during such periods as may be specified in a SaaS Services Schedule and will be provided on a non-work-for-hire basis.
“Personal Data”: sales uploads, customer file uploads, or integrations with systems that hold the same related to an identified or identifiable natural person upon whom Company may conduct Processing on behalf of Licensee and its Identified End Users.
“Processing”: an operation or operations performed on Personal Data by automated means or otherwise, such as collecting, recording, organizing, structuring, storing, adapting, altering, retrieving, consulting, using, disclosing by transmission, dissemination or otherwise making available, aligning, combining, restricting, erasing, or destroying.
“SaaS Services”: the web-based, online, hosted software including Software, Documentation, and Content over a network on a term-use basis.
“SaaS Services Schedule": a document describing the SaaS Services to be provided by Company and the payment obligations of Licensee which expressly incorporates these terms and conditions and forms part of this Agreement.
“Software”: the object code version of any software provided hereunder, including any updates or new versions.
“Subscription Term”: the initial term (“Initial Term”) and all renewals thereto (each a “Renewal Term”).
“White Label Branding”: a limited right that may be granted to Licensee to use its branding and logos in providing the SaaS Services to its Identified End Users.
2. Grant of Licenses
a. Grants. Pursuant to the terms and conditions hereof and the relevant SaaS Services Schedule, Company grants to Licensee a nonexclusive, nontransferable license, without right of sublicense, to allow itself or its Identified End Users, as the case may be, to access and use the SaaS Services during a Subscription Term. Licensee, consistent with all the terms and conditions hereof, and as indicated on a SaaS Services Schedule, may use White Label Branding logos in providing the SaaS Services to its Identified End Users. For an additional fee, and as documented in a SaaS Services Schedule, Licensee grants to Company a nonexclusive, nontransferable license to use Licensee’s branding and logos for these purposes.
b. Restrictions. Any licenses granted are contingent upon Licensee and its Identified End Users complying with the terms hereof as well as all applicable laws, including Applicable Data Protection Laws. Licensee, for itself and on behalf of its Identified End Users, warrants and represents that they shall not: (i) permit any third parties to access or use the SaaS Services except as strictly needed for their normal business operations, (ii) modify or create any product based on the SaaS Services, Documentation, Software, or Content; (iii) use any unauthorized robot, spider, scraper or other automated means to access the SaaS Services, or engage in any unauthorized scraping, data mining, harvesting, data aggregating, or indexing of the SaaS Services except to have copy of Identified End User Data; (iv) frame or mirror any content forming part of the SaaS Services except as authorized by Company for, e.g., delivery receipts for emails, postcards, etc.; (v) alter, modify, reverse engineer, translate, disassemble, or decompile the SaaS Services, Software, or Documentation, or cause or permit others to do so; (vi) access or use the SaaS Services, Software, or Documentation to (A) build any products or services, or (B) copy or use any ideas, features, functions, or graphics of the SaaS Services, Software, or Documentation; (vii) unless using Licensee’s own branding and logos in providing SaaS Services, remove or obscure any title, trademark, copyright, and/or restricted rights notices or labels from the SaaS Services, Software, or Documentation; or (viii) use or authorize others to use White Label Branding for any purpose other than allowing Identified End Users to use and access the SaaS Services. Violating any of these provisions shall allow Company to immediately terminate this Agreement and any of the licenses granted hereunder. Without limiting any of its other rights, Company may suspend or limit the SaaS Services to the extent that it reasonably believes that Licensee or any of its Identified End User(s) have materially violated these provisions.
3. Use of SaaS Services
a. General Access and Use. The SaaS Services, Software, Documentation, and Content may be accessed only by Licensee and its Identified End Users for their respective internal business purposes.
b. Company Responsibilities. Company shall maintain and make the SaaS Services, including updates, available for use by Licensee, or as the case may be, its Identified End Users pursuant to the terms hereof and shall use commercially reasonable efforts to respond to support inquiries, provided that Licensee provides all information and/or materials requested by Company to replicate, diagnose, and correct any error or problem relating to the access or use of the SaaS Services.
c. Licensee Responsibilities. Licensee, for itself and on behalf of its Identified End Users represents and warrants that neither shall not (i) use the SaaS Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (ii) use the SaaS Services to store or transmit Malicious Code, (iii) interfere with or disrupt the integrity or performance of the SaaS Services or third-party data contained therein or any systems or networks, or violate the regulations, policies, or procedures of such networks used with the SaaS Services, (iv) attempt to gain unauthorized access to the SaaS Services or its related systems or networks, the Company’s data, or the data of any other entity, (v) harass or knowingly or intentionally interfere with, restrict, or inhibit any other entity’s use and enjoyment of the SaaS Services, and that they shall (vi) use commercially reasonable efforts to prevent unauthorized access to, or use of, the SaaS Services, and notify Company promptly of the same.
d. Identified End User Credentials. Licensee, for itself and its Identified End Users, represents and warrants that they will (i) maintain the confidentiality of assigned credentials (e.g., username/password, IOS application, Apple Watch) used with Identified End User accounts; (ii) be responsible for all activities that occur under its Identified End User accounts; (iii) if requested by Company, ensure the use of two-factor authentication; and (iv) notify Company immediately of any unauthorized use of an Identified End User’s account or any other breach of security. Company will not be liable for any loss that Licensee, or an Identified End User incurs arising from an unauthorized person using an Identified End User’s passwords or accounts, either with or without the Identified End User’s knowledge.
e. Licensee / Identified End User Data. Licensee, for itself and its Identified End Users, represents and warrants that they are solely responsible for collecting, inputting, and updating all Identified End User Data, and for ensuring that it does not (i) actually or potentially infringe or misappropriate any copyright, trade secret, trademark or other intellectual property rights, or (ii) contain any obscene, defamatory, harassing, offensive, or malicious content.
f. Compliance with Laws. Licensee, for itself and its Identified End Users, represents and warrants that they will comply with all Applicable Data Protection Laws and any other local, state, national, and foreign laws regarding the use of the SaaS Services, including laws related to data privacy, international communications, and the transmission of Personal Data. Licensee, for itself and its Identified End Users, acknowledges that Company has no control over the content of the information transmitted by Licensee or its Identified End Users through the SaaS Services. Licensee, for itself and its Identified End Users, represents and warrants that they will not upload, post, reproduce, or distribute any information, software, or other material protected by copyright, privacy rights, or any other intellectual property right without the permission of the owner of such rights.
4. Intellectual Property Rights
a. General. Company owns all right, title, and interest in and to the Software, SaaS Services, and Documentation, including any copy or use thereof or of any idea, feature, function, or graphics of the SaaS Services, Software, or Documentation as well as any suggestions, enhancement requests, recommendations, other feedback, modifications, improvements, upgrades, derivative works related thereto, and all intellectual property rights therein. Licensee hereby conveys and assigns or shall cause its Identified End User to convey and assign, all right, title, and interest in any such idea, feature, function or graphics, suggestion, enhancement, request, recommendation, other feedback, modifications, improvements, upgrades, and derivative works related to the Software, SaaS Services, and Documentation to Company. Licensee waives any right to contest, and agrees that it will not contest, any of Company’s trademarks, service marks, trade names, copyrights, and any other intellectual property rights, ownership rights, and/or proprietary rights in and to the Software, SaaS Services, and Documentation.
b. Identified End User Data. If legally permitted and requested by Licensee, Company will return to Licensee or destroy or permanently erase Identified End User Data in Company’s possession and thereafter will have no other further obligation to maintain or provide access to such Identified End User Data and may destroy or permanently erase the same without any liability.
5. Limited Warranty and Disclaimers
a. Limited Warranty. Company warrants that during a Subscription Term that the SaaS Services will be free of material errors or defects and will substantially conform to the Documentation. COMPANY MAKES NO REPRESENTATION OR WARRANY THAT (I) DATA OR INFORMATION DERIVED FROM THE SAAS SERVICES, INCLUDING BUT NOT LIMITED TO ANY RECOMMENDATION OR ADVICE, WILL MEET ANY SPECIFIC EXPECTATIONS, PURPOSES, OR REQUIREMENTS, (II) THE SAAS SERVICES WILL MEET ANY SPECIFIC EXPECTATIONS, PURPOSES, OR REQUIREMENTS, (III) THE SAAS SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR (IV) DEFECTS IN THE SAAS SERVICES WILL BE CORRECTED. THIS LIMITED WARRANTY IS IN LIEU OF ANY OTHER WARRANTY, EXPRESS, IMPLIED, ORAL OR WRITTEN, AND COMPANY DISCLAIMS ANY OTHER SUCH WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE (EVEN IF COMPANY KNOWS OR HAS REASON TO KNOW OF ANY SUCH PURPOSE). COMPANY FURTHER DISCLAIMS ANY WARRANTIES OR REPRESENTATIONS OF TITLE AND NON-INFRINGEMENT. THE SAAS SERVICES ARE PROVIDED “AS IS”. NO ORAL OR WRITTEN INFORMATION OR COMMUNICATION FROM COMPANY OR ITS EMPLOYEES SHALL CREATE OR INCREASE ANY WARRANTY. NO ACTION FOR BREACH OF THIS LIMITED WARRANTY MAY COMMENCE MORE THAN ONE (1) YEAR FOLLOWING THE BREACH GIVING RISE TO THE ACTION.
b. Disclaimers: COMPANY MAY CHANGE ITS HOSTING PROVIDER AND PAYMENT PROCESSOR AT ANY TIME. THE SAAS SERVICES ARE SUBJECT TO ANY RESTRICTIONS IMPOSED BY A HOSTING PROVIDER OR PAYMENT PROCESSOR. COMPANY SHALL NOT BE LIABLE FOR ANY ISSUES WITH THE SAAS SERVICES TO THE EXTENT CAUSED BY THE HOSTING PROVIDER OR PAYMENT PROCESSOR. THE FEES PAYABLE TO COMPANY REFLECT THAT COMPANY IS NOT RESPONSIBLE FOR ANY ACTS OR OMISSIONS OF THE HOSTING PROVIDER OR PAYMENT PROCESSOR.
6. Limitation of Liability; Waiver of Certain Damages. COMPANY SHALL NOT BE LIABLE FOR, AND LICENSEE AGREES TO WAIVE, ON BEHALF OF ITSELF AND ITS IDENTIFIED END USERS, ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA, OR USE OF ANY SERVICE, RESULTING FROM OR ARISING OUT OF COMPANY’S PERFORMANCE OR ALLEGED NONPERFORMANCE OF THIS AGREEMENT, REGARDLESS OF THE CLAIM, EVEN IF FORESEEABLE OR LIKELY. COMPANY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES HEREUNDER, NO MATTER THE CLAIM, SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER HEREUNDER FOR THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE.
COMPANY WILL NOT BE LIABLE FOR ANY LOSS THAT LICENSEE OR AN IDENTIFIED END USER INCURS ARISING FROM AN UNAUTHORIZED PERSON USING AN IDENTIFIED END USER’S PASSWORDS OR ACCOUNTS, EITHER WITH OR WITHOUT THE IDENTIFIED END USER’S KNOWLEDGE. NOR WILL COMPANY HAVE ANY LIABILITY RELATED TO INFORMATION TRANSMITTED BY LICENSEE OR ITS IDENTIFIED END USERS THROUGH THE SAAS SERVICES.
COMPANY WILL NOT BE LIABLE FOR ANY CLAIM OF INFRINGEMENT BASED ON (I) IDENTIFIED END USER DATA, (II) UNAUTHORIZED MODIFICATION OF THE SAAS SERVICES, OR (III) USE OF THE SAAS SERVICES OTHER THAN IN ACCORDANCE WITH THE DOCUMENTATION AND THIS AGREEMENT. IF THE SAAS SERVICES, OR ANY PORTION THEREOF, ARE ENJOINED BY COURT ORDER, AWARD, OR SETTLEMENT, COMPANY’S LIABILITY AND LICENSEE’S REMEDIES SHALL BE LIMITED, AT COMPANY’S OPTION, TO (a) THE PROCUREMENT OF A LICENSEE RIGHT TO CONTINUE USING THE SAAS SERVICES; (b) THE REPLACEMENT OF THE SAAS SERVICES OR THE ALLEGEDLY INFRINGING PORTION THEREOF; OR (c) THE MODIFIFICATION OF THE SAAS SERVICES SUCH THAT THEY ARE NOT ENJOINED. IF THESE OPTIONS ARE NOT COMMERCIALLY REASONABLE, COMPANY MAY TERMINATE THE SUBSCRIPTION TERM FOR THE ALLEGEDLY INFRINGING SAAS SERVICES AND REFUND THE AMOUNT PAID BY LICENSEE FOR THE SUBSCRIPTION TERM COVERING THE PERIOD FOLLOWING THE TERMINATION DATE.
7. Indemnification
a. Indemnification by Company. Company will indemnify, defend, and hold Licensee, its officers, directors, affiliates, subsidiaries, agents, and employees, harmless from any loss, damage, cost, or expense, including reasonable attorneys’ fees, arising out of a third-party claim against such parties: (i) for injuries or damage to any person or property to the extent caused by the gross negligence or intentional acts or omissions of Company; (ii) by any person claiming ownership or possessory interest, lien, trust, pledge, or security interest in any Company equipment or software, including without limitation any attempt by such third party to take possession of the equipment or software, unless such claim results from acts or omissions of Licensee or an Identified End User; (iii) based on any alleged infringement of any United States patent, copyright, service or trademark or other intellectual or industrial property right (including, without limitation, misappropriation of trade secrets) arising out of the Company’s delivery of the SaaS Services; or (iv) based on Company’s violation of any applicable laws, rules, or regulations.
b. Indemnification by Licensee. Licensee, for itself and on behalf of its Identified End Users, will indemnify, defend, and hold Company, its officers, directors, affiliates, subsidiaries, agents, and employees, harmless from any loss, damage, cost, or expense, including reasonable attorneys' fees, arising out of a third-party claim or action against such parties: (i) for injuries or damage to any person or property to the extent caused by the gross negligence or intentional acts or omissions of Licensee or its Identified End User(s), including, without limitation, any claims arising from any Identified End User Data; (ii) by any person claiming ownership or possessory interest, lien, trust, pledge, or security interest in any equipment, data, or software provided to Company by Licensee or any Identified End User, including without limitation any attempt by such third party to take possession of the equipment, data, or software, unless such claim results from acts or omissions of Company; (iii) based on any alleged infringement of any patent, copyright, service or trademark or other intellectual or industrial property right (including, without limitation, misappropriation of trade secrets) resulting from any Identified End User Data; or (iv) based on Licensee’s or any Identified End User’s violation of any applicable laws, rules, or regulations.
c. Conditions on Indemnification. The parties shall cooperate to provide an efficient and effective defense of any third-party claims and to control the costs and fees thereof consistent with a proper defense. The indemnified party will provide indemnifying party with reasonable assistance, information, and authority needed by the indemnifying party, and the indemnifying party will reimburse the indemnified party for all reasonable expenses incurred in providing such assistance, information, and authority. At the indemnifying party’s request and expense, the indemnified party shall permit the indemnifying party to control the defense or settlement of the claim. The indemnifying party will not enter a settlement adversely affecting the indemnified party’s rights or obligations or creating any liability or obligation for the indemnified party, without prior written approval of the indemnified party, such approval not to be unreasonably withheld or delayed.
8. Access and Monitoring
Company may access Licensee’s or its Identified End Users’ accounts and Identified End User Data to identify or resolve technical problems or respond to complaints about the SaaS Services or as required by law. Company may monitor the SaaS Services to determine Licensee’s or its Identified End Users’ compliance herewith. Without limiting the foregoing, Company may remove any material submitted with respect to the SaaS Services that violates the provisions hereof.
9. Renewals, Expenses, and Taxes
a. Renewals. During any Subscription Term, Company may increase its fees upon no less than thirty (30) days advance notice provided that such increases will not take effect until the start of a subsequent Renewal Term. Subscription Terms will automatically renew via Renewal Terms unless either party gives the other notice of non-renewal no less than sixty (60) days prior to the end of the then current Subscription Term. Notwithstanding anything herein to the contrary, promotional or one-time Subscription Term pricing will expire at the end of the initial Subscription Term, and the Renewal Term will be at the Company’s list price then in effect.
b. Expenses. Licensee will reimburse Company for its reasonable, out-of-pocket travel and related expenses incurred in providing the SaaS Services. Company shall notify Licensee prior to incurring any such expense. Company shall comply with Licensee’s travel and expense policy if available to Company prior to the required travel/other expense.
c. Taxes. Licensee shall be responsible for all taxes, duties, fees, or surcharges relating to the SaaS Services, including but not limited to sales, use, gross receipts, and value added taxes, surcharges, franchise fees, occupational, excise, and universal service (state and federal) taxes and surcharges (but excluding any tax directly imposed on Company’s net income) and will pay to or reimburse Company any amounts paid by Company relating to the SaaS Services provided to Licensee or its Identified End Users. If Licensee or its Identified End User is subject to paying value-added taxes (“VAT”), but such taxes are not specifically invoiced or collected by Company, then Licensee shall have sole responsibility to submit its own tax returns and pay the related VAT to the relevant taxing authorities and Company shall have no liability related thereto.
10. Term, Termination and Suspension
a. Term of Agreement. This Agreement shall begin on the date when executed by the parties and shall continue until expiration of all Subscription Terms or until the Agreement is terminated by either party as allowed herein.
b. Termination. In addition to any other provisions hereof, Company may terminate this Agreement immediately upon a material breach by Licensee that has not been cured within thirty (30) days after receipt of written notice of such breach.
c. Suspension for Non-Payment. Company may suspend the SaaS Services if Licensee fails to timely pay any amounts due to Company hereunder and such failure continues for fifteen (15) days. Suspension of the SaaS Services shall not release Licensee from its payment obligations hereunder. Company shall not be liable to Licensee or to any third party for any liabilities, claims, or expenses arising from or relating to suspension of the SaaS Services resulting from Licensee’s nonpayment.
d. Suspension for Ongoing Harm. Company may suspend the SaaS Services if it reasonably believes that Licensee’s or any of its Identified End Users’ use of the SaaS Services may cause immediate and ongoing harm to Company or others. If Company suspends the SaaS Services for suspected ongoing harm, it shall notify Licensee as soon as practicable, and the parties shall attempt to resolve the issue as set forth herein. Notwithstanding anything herein to the contrary, Company shall not be liable to Licensee or to any third party for any liabilities, claims, or expenses arising from or relating to any suspension of the SaaS Services pursuant to this subparagraph.
e. Effect of Termination. Upon termination of this Agreement, Company shall immediately cease providing the SaaS Services and all rights and licenses granted hereunder shall terminate immediately and Licensee or its Identified End Users, as the case may be, may no longer use the SaaS Services. If Company terminates this Agreement due to a breach by Licensee, then Licensee shall immediately pay to Company all amounts then due and to become due during the remaining term of this Agreement, but for such termination. If Licensee terminates this Agreement due to an uncured breach by Company, Company shall repay to Licensee all pre-paid amounts for any unperformed SaaS Services scheduled to be delivered after the termination date.
11. Personal Data
Company will be required hereunder to engage in Processing Identified End User Data, including Personal Data, which will include, among other things, information about the activities and location of individuals using Licensee’s and its Identified End Users’ websites or online services and other information collected on Licensee’s behalf.
Licensee will provide Identified End User Data, including Personal Data, to Company at which time Company may engage in Processing such Identified End User Data and Personal Data as needed by Company to perform its obligations hereunder. Licensee shall be and remain the controller of all Identified End User Data and Personal Data, direct the purposes, means, and duration of any Processing thereof, and will remain responsible for all of its obligations with respect thereto under Applicable Data Protection Laws, including that such Processing according to Licensee’s instructions will not place Company in breach or violation of Applicable Data Protection Laws. Licensee will obtain all consents and make all disclosures and notices needed to allow Company to Process Personal Data hereunder. Company will engage in Processing Personal Data for the limited and specific purposes of performing its obligations hereunder, and will not sell, share for cross-context behavioral advertising, retain, use, disclose, or otherwise Process Personal Data for any other purposes. Company will comply with Applicable Data Protection Laws in the Processing of Personal Data and will notify Licensee if it can no longer comply therewith. Company shall maintain commercially reasonable information security for Personal Data. Upon thirty (30) days advance written request, Company shall allow Licensee to make reasonable assessments of its compliance with Applicable Data Protection Laws once per year. Such assessments will be within Company’s normal business hours for one business day, subject to confidentiality and security terms acceptable to Company, and will not materially disrupt Company’s operations. Licensee will reimburse Company at a reasonable rate for its cooperation with any such assessment. Company will reasonably assist Licensee in responding to requests relating to Company’s Processing of Personal Data in accordance with Licensee’s obligations under Applicable Data Protection Laws. Company will refer to Licensee any party who contacts Company seeking access to Personal Data. Company will delete all Personal Data or return all Personal Data to Licensee following termination of the Agreement unless retention thereof is otherwise reasonably required for Company to comply with its legal obligations. Company will require any subcontractors Processing Personal Data to agree to Personal Data Processing obligations substantially similar to those imposed on Company herein. Company will take reasonable steps to ensure its personnel Processing Personal Data are subject to a duty of confidentiality with respect to Personal Data.
12. Confidential Information; Non-Disclosure; Non-Compete
a. Confidential Information. Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains from the other constitutes confidential property. The Documentation, SaaS Services, Software, technical information and other code or data of any type provided Company shall be deemed a trade secret and confidential information without any marking or further designation.
b. Non-Disclosure. Either party receiving confidential information will hold it in confidence and not use or disclose it except to fulfill its obligations hereunder. These restrictions shall not apply to information which: (i) was rightfully known prior to its receipt hereunder; (ii) becomes public knowledge; (iii) is rightfully obtained from a third party; or (iv) is independently developed without any access to such information. A party may disclose confidential information pursuant to regulation, law or court order to the minimum extent required. Both parties acknowledge that disclosure of confidential information would cause substantial harm that could not be remedied by paying damages alone.
c. Non-Compete. Licensee recognizes that by licensing the Documentation, SaaS Services, and Software to Licensee and providing services under this Agreement, Company is enabling Licensee to benefit from Company’s investment in, and development of goodwill associated with, the Documentation, SaaS Services, and Software, and Company’s expertise in tailoring, presenting, and facilitating the resale of the SaaS Services, such that having Company sell products or services competitive with the SaaS Services would necessarily allow Licensee to benefit from Company’s investment. In recognition of the foregoing, Licensee agrees that it will not sell a product or service competitive with the SaaS Services (i) to any Identified End User(s)during any Subscription Term or (ii) to any Identified End User(s) (limited to those Identified End User(s) that subscribed to the SaaS Services within the six months prior to termination or expiration of the Agreement) for a period of two (2) years subsequent to the end of any existing Subscription Term.
13. General Provisions
a. Assignment. Neither party may assign this Agreement or any right hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, however, that either party may assign this Agreement to an acquirer of all or substantially all of the business of such party, whether by merger, asset sale, or otherwise. Company may assign, sell, hypothecate, collateralize, and convey any rights it may have to fees or payments owed or to become owed hereunder. This Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns.
b. Notices. Notices under this Agreement shall be in writing and deemed to have been given five (5) business days after mailing if sent by registered or certified U.S. mail, upon personal delivery if sent by express courier service, or immediately if sent by email or facsimile, provided that a copy of the notice is promptly sent by another means specified in this section. All notices shall be sent to the other party at the address set forth on the cover page hereof.
c. Force Majeure. The parties will be excused from performing hereunder during and to the extent that a party cannot perform hereunder, in whole or in part, because of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, pandemics, communication line failures, and power failures.
d. Waiver. No waiver shall be effective unless in writing and signed by the waiving party and shall not constitute a waiver of any other or subsequent breach or term of this Agreement.
e. Severability. Any term hereof which is determined to be invalid or unenforceable shall be reformed to achieve the same effect as the original term, with the remainder hereof remaining in full force, or if such reformation is impossible, severed with the remainder hereof remaining in full force.
f. Entire Agreement. This Agreement (including all SaaS Services Schedules) shall contain the entire agreement and supersedes any previous oral and written communications between the parties concerning the subject matter hereof. This Agreement may be amended solely in a writing signed by both parties. Form purchase order or sales confirmation terms shall be automatically rejected unless accepted in writing by the party against whom their enforcement is sought. Merely commencing work or paying against such terms shall not constitute their acceptance.
g. Survival. Sections 1, 4, 5, 6, and 7 of this Agreement shall survive the expiration or termination of this Agreement.
h. Publicity. Upon execution of a Schedule, Company with coordination of Licensee and its Identified End User(s) may issue press releases announcing the relationship and the manner in which Licensee or Identified End User(s) will work with the Company.
i. Export Regulations. The parties shall comply with export laws and regulations. The SaaS Services may not be accessed or used by any national or resident of a country embargoed by the United States or Canada, including countries sanctioned by the Office of Foreign Assets Control (OFAC) or the Financial Action Task Force (FATF). Licensee, for itself and its Identified End Users, represents and warrants that neither Licensee nor any of its Identified End Users is located in, under the control of, or a national or resident of any country in which use of the SaaS Services would be prohibited by the laws of Canada or the United States.
j. No Third-Party Beneficiaries. Nothing herein shall confer any rights upon either party’s employees, agents, contractors, partners, or customers, or upon any other person or entity, except as specifically provided for herein.
k. Independence of Parties. Nothing herein will cause the relationship between the parties to be other than independent entities and except as provided herein, neither party shall be responsible for the acts or omissions of the other party or its personnel.
l. Derived Data. Notwithstanding anything to the contrary, Company shall have the continuing right to (i) collect data and other information relating to the SaaS Services and Software and related systems and technologies (including, without limitation, information concerning Identified End User Data and data derived therefrom) and use such data and other information internally for developing, diagnosing, correcting, improving, testing, and researching purposes, as well as data derived from the foregoing including but not limited to IP addresses, geo locations, hashed identifiers, and mobile ad identifiers, and (ii) disclose such data in aggregate or other de-identified form in connection with its business. .
m. Governing Law and Forum Selection. This Agreement shall be governed by the laws of North Carolina, excluding its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Any action arising out of or related hereto shall be filed in the United States District Court for the Middle District of North Carolina or, if no federal jurisdiction exists, in a state court of competent jurisdiction in Orange County, North Carolina. Company and Licensee agree to personal jurisdiction by the North Carolina federal and state courts.
n. Signatures. This Agreement may be executed in multiple counterparts, each an original, and collectively one agreement. Delivering an executed counterpart of a signature page by facsimile or electronic transmission (including pdf) will constitute delivery of a manually executed counterpart. SaaS Services Schedules shall not require the signatures of the parties.