These Terms of Service (“Terms of Service”), together with Order (as defined below) collectively constitute a binding agreement (the “Agreement”) between Foobar, Inc., d/b/a CommandBar (“Company”), and you or the legal entity you represent (“Customer”). Any terms not defined herein have the meaning given to them in the applicable Order.
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS YOUR USE OF THE SERVICES. BY CLICKING ON THE “CREATE ACCOUNT” BUTTON, COMPLETING THE REGISTRATION PROCESS OR ACCESSING OR USING ANY OF THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE AGREEMENT. THE TERM “CUSTOMER” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED FOR THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES.
1.1 “Access Credentials” means login information, passwords, security protocols, and policies through which Authorized Users access the Services.
1.2 “Additional Services” means any additional services, including professional services provided by Company to Customer as described in an Order (as may be further elaborated in any statement of work mutually agreed to by the parties), including implementation, support and maintenance, and training services.
1.3 “Authorized User” means each of Customer’s employees and independent contractors who are provided Access Credentials by Customer or Company.
1.5 “CommandBar” means Company’s proprietary feature made available to End Users in the Customer Site.
1.6 “Confidential Information” means all written or oral information, disclosed by one party (the “Disclosing Party”) to the other (the “Recipient”), related to the business, products, services or operations of the Disclosing Party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential, including, without limitation: (i) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques; (ii) information regarding products, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, employees, suppliers and agents; and (iii) information regarding the skills and compensation of the Disclosing Party’s employees, contractors, and other agents.
1.7 “Customer Site” means Customer’s website, mobile applications and desktop applications through which Customer uses the Services to make the CommandBar available to End Users.
1.8 “Customer Content” means the data and content uploaded or submitted into the Services by or on behalf of Customer and/or its Authorized Users, including without limitation End User Content.
1.9 “Dashboard" means Company’s administrative interface for accessing and administering the Services including configuring the CommandBar, viewing analytics data related to end user usage of the CommandBar, and account management.
1.10 “Documentation” means the documentation, user manuals, help files and videos, and other materials that describe the features, functions and operation of the Services.
1.11 “End User Content” means any text, searches, or content submitted by End Users through their use of the CommandBar through the Customer Site.
1.12 “End User” means end users of the Customer Site. If applicable, Company may set restrictions on the number of End Users authorized to utilize the CommandBar, as set forth in the Order.
1.13 “Order” means any online or written form or other communication provided by Company evidencing the initial designation of the Services by the Customer and any subsequent orders to purchase the Services.
1.14 “Personal Information” means any Customer Content that identifies any specific individual and is protected under applicable privacy laws, rules and regulations.
1.15 “Sensitive Personal Information" means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS"); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA"); or (iii) any other personal data of an EU citizen deemed to be in a “special category" (as identified in EU General Data Protection Regulation or any successor directive or regulation).
1.16 “Services” means the Dashboard, the CommandBar, Company Code, and any Additional Services as described in the applicable Order.
From time to time, Company may modify this Agreement. Unless otherwise specified by Company, changes become effective for Customer at the start of Customer’s Renewal Term (as defined below) or entry into a new Order. Company will use reasonable efforts to notify Customer of the changes through communications via Customer's account, email or other means.Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing the Agreement or entering into a new Order, and in any event continued use of the Services after the updated version of thisAgreement goes into effect will constitute Customer's acceptance of such updated version. If Company specifies that changes to the Agreement will take effect prior to Customer's next renewal or new Order (such as for legal compliance or product change reasons) and Customer objects to such changes, Customer may terminate the applicable Term and receive as its sole remedy are fund of any fees Customer has pre-paid for use of the applicable Services for the terminated portion of the Term.
3.1 Overview of Services. The Services are designed to allow Customer to offer a search functionality within the Customer Site using the CommandBar, and to provide Customer with a Dashboard for accessing and managing End User Content regarding those End Users.
3.2 Access Grant to Services. Subject to Customer’s compliance with the terms and conditions contained in this Agreement, including the restriction on the number of End Users set forth in any Order, Company grants to Customer and Customer’s Authorized Users a non-exclusive, non-transferable, non-sublicenseable, revocable right to access and use the Services during the Term (as defined in Section 8).
3.3 Beta Releases. Company may make available to Customer certain products, features, services, or software that are not yet generally available, including such products, features, services, or software that are labeled as “alpha,” “pre-release,” or “beta” (collectively, “Beta Features”). Customer agrees that any Beta Features are provided on an “as is” and “as available” basis without any warranty, support, maintenance or indemnity obligations of any kind. Customer further agrees and acknowledges that Beta Features may not be complete or fully functional and may contain bugs, errors, omissions, and other problems for which Company will not be responsible.
3.4 Deployment of Company Code. Subject to all of the terms and conditions of this Agreement, Company grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Term to copy the Company Code in the form provided by Company to deploy on the Customer Site (in accordance with the Documentation and this Agreement) to allow End Users to access to the CommandBar. Customer must implement Company Code on the Customer Site solely to enable features of the Services. Customer will implement all Company Code in strict accordance with the Documentation and any other instructions provided by Company. Customer acknowledges that any changes made to the Customer Site after initial implementation of Company Code may cause the Services to cease working or to function improperly, and that Company will have no responsibility for the impact of any such Customer changes.
3.5 Access Credentials. Customer will safeguard, and ensure that all Authorized Users safeguard the Access Credentials. Customer will be responsible for all acts and omissions of Authorized Users. Customer will notify Company immediately if it learns of any unauthorized use of any Access Credentials or any other known or suspected breach of security.
3.6 Customer Restrictions. During the Term and thereafter, Customer shall not, and shall not permit any of its employees, contractors or Authorized Users to, directly or indirectly: (a) act as a reseller or distributor of, or a service bureau for, the Services or otherwise use, exploit, make available or encumber any of the Services to or for the benefit of any third party other than Customer’s End Users; (b) use or demonstrate the Services in any other way that is in competition with Company; (c) reverse engineer, disassemble or decompile the Services or attempt to derive the source code or underlying ideas or algorithms of any part of the Services (except to the limited extent applicable laws specifically prohibit such restriction); (d) remove, alter, or obscure any notice of proprietary rights from the Services including, but not limited to, any indicia that the Services are “Powered by CommandBar”; (e) copy, modify, translate or otherwise create derivative works of any part of the Services; (f) use the Services in a manner that interferes or attempts to interfere with the proper working of the Services or any activities conducted on the Services, including bypassing or attempting to bypass any privacy settings or measures used to prevent or restrict access to the Services; (g) use manual or automated software, devices, robot, spider, or other processes to “crawl” or “spider” or to retrieve, index, “scrape”, “data mine” or in any way gather information, content or other materials from the Services in an unauthorized manner or reproduce or circumvent the navigational structure or presentation of the Services; (h) use the Services in a manner which interferes with or disrupts its integrity or performance; (i) use or allow the transmission, transfer, export, re-export or other transfer of any software, technology or information forming a part of the Services in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; or (j) use the Services to share or store inappropriate materials, including (i) materials containing viruses or other harmful or malicious code; (ii) unsolicited mail (spam); (iii) copyrighted materials to which Customer does not have sufficient rights; (iv) harassing, tortious, or defamatory materials; or (v) other materials prohibited by applicable international, federal, state, or local laws and regulations.
3.7 Customer Obligations. Customer will be responsible for obtaining and maintaining, at Customer’s expense, all of the necessary telecommunications, computer hardware, software, and Internet connectivity required by Customer or any Authorized User to access the Services from the Internet. Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify company promptly of any such unauthorized use known to Customer.
3.8 Proprietary Rights and Confidential Information
(a) Confidential Information
(i) Use and Disclosure. During this Agreement, each party will have access to the other party’s Confidential Information. Except as otherwise expressly permitted, and without limiting each party’s obligations, under this Agreement, each Recipient agrees as follows: (A) it will not disclose the Confidential Information of the Disclosing Party to anyone except its employees and independent contractors who have a need to know and who have been advised of and have agreed to treat such information in accordance with the terms of this Agreement (each a “Representative”) and (B) it will not use or reproduce the Confidential Information disclosed by the Disclosing Party for any purpose other than exercising its rights and performing its obligations as described herein. Each Recipient will be liable for the acts and omissions of its Representatives with respect to the Disclosing Party’s Confidential Information.
(ii) Exceptions. The provisions of Section 3.8(a)(i) will not apply to Confidential Information that: (A) becomes generally available to the public through no fault of the Recipient; (B) is lawfully provided to the Recipient by a third party free of any confidentiality duties or obligations; (C) Recipient can prove, by clear and convincing evidence, was already known to the Recipient without restriction at the time of disclosure; or (D) Recipient can prove, by clear and convincing evidence, was independently developed by employees and contractors of Recipient who had no access to the Confidential Information. Notwithstanding Section 3.8(a)(i), each party may disclose Confidential Information to the limited extent required by a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order will first have given written notice to the other party and made a reasonable effort to obtain a protective order.
(b) Customer Content
(i) Customer Content. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third-party licenses, consents and permissions needed for Company to use the Customer Content to provide the Services. Customer warrants that Customer has the full authority to transmit and store the Customer Content, including the End User Content, through the Services. Customer acknowledges that Customer bears sole responsibility for adequate security, protection and backup of Customer Content, including all End User Content, on Customer’s equipment. Company will have no liability to Customer for any unauthorized access to, or use, alteration, corruption, deletion, destruction or loss of any Customer Content on Customer’s equipment. Customer and its Authorized Users shall have access to the Customer Content and shall be responsible for all changes to and/or deletions of Customer Content, including End User Content. Customer shall have the ability to export Customer Content out of the Services and is encouraged to make its own back-ups of the Customer Content.
(ii) No Sensitive Personal Information. Customer specifically agrees not to use the Services to collect, store, process or transmit any Sensitive Personal Information. Customer acknowledges that Company is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Services are neither HIPAA nor PCI DSS compliant. Company will have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.
(iii) License in Customer Content. Customer grants to Company, on behalf of itself and its Authorized Users and End Users, a non-exclusive license to use the Customer Content as necessary for purposes of providing the Services. Except for the limited licenses granted to Company in any Customer Content, as between Customer and Company, Customer reserves all right, title and interest in the Customer Content. Notwithstanding anything to the contrary herein, Customer agrees that Company has the right to collect, use and analyze any deidentified information derived from the Customer Content, including End User Content (collectively, the “Deidentified Data”) for Company’s lawful business purposes, including to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and any other Company offerings. Company may disclose Deidentified Data solely in aggregate form in connection with its business.
(iv) Customer Responsibilities for Data and Security. Customer and its Authorized Users shall have access to the Customer Content and shall be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order the access the Services. Customer shall have the ability to export Customer Content out of the Services and is encouraged to make its own back-ups of the Customer Content. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
(c) Services. Except for the limited access grant provided to Customer in this Agreement, Company reserves all right, title and interest in its intellectual property and business, including the Services, Documentation, and Company trademarks. Unless otherwise expressly set forth in an Order, and except for any Customer Content, all work product or services provided or developed pursuant to this Agreement or any Order including any modifications and improvements to, or any derivative works of, any Services pursuant subsection 3.8(d) or any intellectual property developed pursuant to subsection 3.8(e) below, and all intellectual property and other proprietary rights derived therefrom, will be the sole and exclusive property of Company.
(d) Continuous Development. Customer acknowledges that Company may continually develop, deliver and provide to Customer on-going innovation to the Services in the form of new features, functionality, and efficiencies. Accordingly, Company reserves the right to modify the Services, from time to time. Some modifications will be provided to Customer at no additional charge. In the event Company adds additional functionality to a particular Service, Company may condition the implementation of such modifications on Customer’s payment of additional fees provided Customer may continue to use the version of the Services that Company makes generally available (without such features) without paying additional fees.
(e) Additional Services. Customer may request that Company provide certain Additional Services related to Customer’s use of the Services. Excluding those agreed to between the parties in the Order or a separate statement of work, Company will have no obligation to provide or perform such services for or on behalf of Customer.
(f) Feedback. Company in its sole discretion, may utilize all comments and suggestions, whether written or oral, furnished by Customer to Company, including such comments and suggestions of Authorized Users and End Users, in connection with its access to and use of the Services (all comments and suggestions provided by Customer hereunder constitute, collectively, the “Feedback”). Customer hereby grants Company, on behalf of itself and its Authorized Users and End Users, a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into Company products and services.
Company will maintain a commercially reasonable information security program consistent with industry standards that contains appropriate administrative, technical and physical safeguards reasonably designed to protect Personal Information from unauthorized disclosure. Such information security program will include business continuity and disaster recovery plans that are consistent with industry standards and are designed to protect against loss of Customer Content. In the event that Company has reason to believe that there has been any unauthorized access to, or loss of, Personal Information from its systems or premises, then it will promptly notify Customer according to Company’s policies and protocols aligned with the data type and nature of the event.
5.1 Fees. Inconsideration for the Services, Customer will pay to Company the then-current fees set forth in Customer’s account in the Dashboard or in an applicableOrder(s) (“Fees”). Company shall be entitled to withhold performance and suspend or discontinue the Services until all amounts due are paid in full.
5.2 Billing. Company will charge Customer the Fees for the Services rendered in advance for each billing period on or after the first day of such billing period. All Fees for Services are due and payable in US Dollars and are non-refundable. If Customer is paying by credit card, (a) Customer hereby irrevocably authorizes Company, or if applicable to charge the credit card or other payment method provided for any such amounts when due, (b) amounts due will be automatically charged, (c) if Customer’s credit card is declined, Company will attempt to reach out to Customer for a new payment method, and (d) if Customer’s credit card expires, Customer hereby gives Company permission to submit the credit card charge with a later expiration date. If Company fail to resolve an issue with Customer resulting from a credit card decline or expiration, Company may terminate this Agreement due to non-payment. All billing disputes must be emailed to firstname.lastname@example.org within fourteen (14) days of delivery of the billing statement or invoice, and disputes not made within that time are waived by Customer. Late payments, including those resulting from credit card declines, will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. If Company must initiate a collections process to recover Fees due and payable hereunder, then Company shall be entitled to recover from Customer all costs associated with such collections efforts, including but not limited to reasonable attorneys’ fees. In the event Company delivers to Customer an invoice for any Fees or interest payments owed hereunder, as indicated in an Order, such invoiced amounts shall be due within thirty (30) days of the date of such invoice.
5.4 Expenses. Customer will reimburse Company for any pre-approved out-of-pocket expenses incurred by Company in connection with the provision of Services, provided that Customer has approved such expenses in writing (including via email).
6.1 General Representations. Each party represents and warrants that: (a) as of the Effective Date and throughout the Term, it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (b) that the execution and performance of the Agreement, or use of the Services, will not conflict with or violate any provision of any law having applicability to such party; and (c) that the Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.
6.2 Customer Content. Customer represents and warrants to Company that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Content as contemplated in this Agreement (including granting Company the rights in Section 3.8(b) and that no Customer Content will violate or infringe (a) any third party intellectual property, publicity, privacy or other rights, (b) any laws, or (iii) any terms of service, privacy policies or other agreements governing the Customer Site. Customer will be fully responsible for any Customer Content submitted to the Services by any End User or Authorized User as if it was submitted by Customer.
6.3 Compliance with Laws. Customer represents and warrants that Customer’s use of the Services and all Customer Content is at all times compliant with all applicable laws, rules and regulations.
6.4 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. COMPANY DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE SERVICES WILL BE ACCURATE, WITHOUT INTERRUPTION, OR ERROR-FREE.
6.5 Disclaimer of Indirect Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL COMPANY BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES.
6.6 Limitations on Liability. COMPANY’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY (OR PAYABLE TO) COMPANY DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST DATE ON WHICH THE LIABILITY AROSE.
6.7 Exceptions. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITY, IN SUCH JURISDICTIONS THE LIABILITY OF COMPANY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE PROVISIONS OF THIS SECTION 5 WILL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED, ANY LIMITED REMEDY HEREIN IS HELD TO FAIL OF ITS ESSENTIAL PURPOSE OR THE FORM OF THE CLAIM OR CAUSE OF ACTION, WHETHER IN CONTRACT, WARRANTY, STATUTE, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE).
7.1 Company Indemnity. Company will indemnify, defend and hold Customer, its directors, officers, and employees (each a “Customer Indemnified Party”) harmless from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs (collectively “Losses”) arising out of any third party claim to the extent alleging that the Services infringe any U.S. patent, copyright, trademark or trade secret.
7.2 Exclusions. Section 7.1 will not apply if the alleged claim arises, in whole or in part, from: (a) a use or modification of the Services by Customer or any Authorized User in breach of this Agreement, (b) a combination, operation or use of the Services with other software, hardware or technology not provided by Company if the claim would not have arisen but for the combination, operation or use, or (c) the Customer Content (any of the foregoing circumstances under clauses (a), (b) or (c) will be collectively referred to as a “Customer Indemnity Responsibility”).
7.3 Customer Indemnity. Customer will indemnify, defend and hold harmless Company, its directors, officers, and employees (each a “Company Indemnified Party”) from and against any and all Losses arising out of any third party claim (a) alleging a Customer breach of any Customer representation or warranty in Section 6, and (b) arising out of any Customer Indemnity Responsibility.
7.4 Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, (b) reasonably cooperating and assisting in such defense and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent.
7.5 Infringement. If the Services are, or in Company’s opinion, are likely to become, the subject of any infringement-related claim, then Company will, at its expense and in its discretion: (a) procure for Customer the right to continue using the Services; (b) replace or modify the infringing technology or material so that the Services become non-infringing and remain materially functionally equivalent; or (c) terminate the Agreement, and give Customer a refund for any pre-paid but unused Fees.
7.6 THE PROVISIONS OF THIS SECTION 7 STATE COMPANY’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE SERVICES INFRINGE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT.
8.1 Term. The term of this Agreement will commence on the Effective Date and shall remain in effect for an initial term of twelve (12) months, unless otherwise set forth in the Order (the “Initial Term”). Unless otherwise specified in an applicable Order, this Agreement shall automatically renew for successive one (1) year terms (each a “Renewal Term”), unless either party provides notice to the other of its intention not to renew at least thirty (30) days prior to expiration of the Initial Term or the then-current Renewal Term. The Initial Term, any Trial Period (if applicable, as defined herein) and all Renewal Terms will collectively be referred to as the “Term”.
8.2 Termination. Either party may terminate this Agreement or any Order, at its discretion, effective immediately upon written notice to the other if the other party materially breaches any provision of this Agreement (including any failure to pay Fees) and does not substantially cure the breach within thirty (30) days after receiving written notice.
8.3 Suspension of Service(s). At any time during the Term, Company may, immediately upon notice to Customer, suspend access to any Service for the following reasons: (a) a threat to the technical security or technical integrity of the Services; (b) any amount due under this Agreement is not received by Company within fifteen (15) days after it was due; or (c) breach or violation by Customer of any laws, rules, or regulations.
8.4 Return of Customer Content. Within thirty (30) days following termination of this Agreement for any reason, Company, upon Customer’s written request, will return all Customer Content to Customer in a mutually agreed format. Thereafter, Company reserves the right to permanently and definitively delete the Customer Content (unless Customer has timely requested, and Company has not yet complied with Customer’s request to return the Customer Content). Upon Company’s request, Customer agrees to acknowledge its receipt of Customer Content.
8.5 Trial Period. (a) If the Order indicates that the Services are on a “Trial” or equivalent basis, then the terms and conditions of this Section 8.5 shall apply. The term of this Agreement will commence on the Effective Date and continue for the trial period specified on the Order (“Trial Period”). Following the Trial Period, this may renew upon the mutual agreement of the parties and begin the Initial Term, and continue in accordance with Section 8.1. (b) During the Trial Period, Customer shall pay the Trial Period fees set forth in the Order (“Trial Period Fees”). All Trial Period Fees related to Customer’s access to and use of the Services during the Trial Period will be invoiced by Company at the beginning of the Trial Period and will be due and payable within thirty (30) days after receipt of such invoice by Customer. (c) During the Trial Period, either party may terminate this Agreement at any time, for any or no reason upon notice to the other party. (d) For the avoidance of doubt, all Services offered during a Trial Period are provided on an “as is” and “as available” basis without any warranty, support, maintenance or indemnity obligations of any kind.
8.6 Effects of Termination. Upon termination or expiration of this Agreement for any reason, (a) Customer shall immediately cease any and all use of and access to the Service and remove any and all Company Code from the Customer Site, (b) any Fees owed to Company prior to such termination or expiration will be immediately due and payable and (c) all license and access rights granted will immediately cease to exist. Sections 1, 2, 3.3, 3.5, 3.7, 5, 6, 7, 8.4, 8.5(d), 8.6 and 9 will survive any expiration or termination of this Agreement.
9.1 Assignment. This Agreement may not be assigned by Customer without the prior written consent of Company. Any attempted assignment or delegation in violation of this Section 8.1 will be null, void and of no effect.
9.2 Publicity. During the Term and thereafter, Company may refer to Customer as a Company customer, orally and in writing (including in promotion or marketing materials and on Company’s website and social media postings).
9.3 Notices. Customer is responsible for providing Company with Customer’s most current e-mail address. In the event that the last e-mail address Customer provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. Customer may give notice to Company at the following e-mail address: email@example.com. Notice shall be deemed to have been duly given on the first business day following successful e-mail transmission to Company.
9.4 Governing Law; Disputes. This Agreement will be governed by the laws of the State of California, without reference to its conflicts of law principles. The United Nations Convention for the International Sale of Goods will not apply to this Agreement. Any dispute, controversy or claim arising out of or relating to this Agreement, will be made exclusively in the state or federal courts located in San Francisco, California and both parties submit to the jurisdiction and venue of such courts.
9.5 Remedies. Customer acknowledges that any actual or threatened breach of Section 3.8 will constitute immediate, irreparable harm to Company for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its reasonable attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
9.6 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
9.7 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
9.8 No Third Party Beneficiaries. The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity (including any Authorized User) other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
9.9 Construction. The parties negotiated this Agreement with the opportunity to receive the aid of counsel and, accordingly, intend this Agreement to be construed fairly, according to its terms, in plain English, without constructive presumptions against the drafting party. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
9.10 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a natural disaster, war, act of terror, or any other event beyond the reasonable control of such party. The affected party will use reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
9.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both parties.