Last updated: May 4, 2021
This SERVICES AGREEMENT (“Agreement”) is a legally binding agreement between you (“Client”) and One10 LLC, a Delaware limited liability company, with an office at 2800 Livernois, Suite 600, Troy, Michigan 48083 (“Company”), and is effective on the date Company and Client execute an order form (“Order Form”) incorporating the terms and conditions of this Agreement by reference.
ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN ARTICLE 15, CLIENT AGREES THAT DISPUTES BETWEEN CLIENT AND COMPANY WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND CLIENT WAIVES ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT AND/OR CLASS-WIDE ARBITRATION.
1.1 Services. Company shall provide to Client the PerformX software, which is Company’s proprietary incentive and recognition software-as-a-service platform (the “SaaS Services”) as described in this Agreement and/or as set forth in a duly executed Order Form under this Agreement. The SaaS Services enable Client to reward Client’s participants based on Client’s incentive program and to analyze program activity. Company may provide additional services including, but not limited to (i) the initial installation, set-up and use of the SaaS Services, and/or (ii) training, on-boarding, documentation, and/or operational support regarding use of the SaaS Services (“Professional Services”). Upon Client’s request, additional Professional Services may be provided during regular business hours at Company’s then-current rates. SaaS Services and Professional Services shall collectively be referred to herein as “Services”. Neither party will have any obligation with respect to any draft Order Form unless and until it is executed by both parties. Except as otherwise provided herein, if any terms and/or conditions of this Agreement conflict with any terms and/or conditions of any Order Form, the terms and conditions set forth in the Order Form will control solely with respect to the Services covered under such Order Form.
1.2 Use of the Services. Client is solely responsible for obtaining, maintaining, installing and supporting all ‘Internet’ access, computer hardware, software, telecommunications capabilities and other equipment and services (specifically including responsibility for providing appropriate personal computers and mobile devices) needed for it and its authorized users to access and/or use the SaaS Services. Client shall ensure that its network and systems comply with the relevant specifications provided by Company from time to time and shall provide Company with information as may be required by Company in order to provide the SaaS Services. While Company uses reasonable efforts to keep the Services accessible, the Services may be unavailable from time to time. Client understands and agrees that there may be interruptions to the Services and/or access to Client’s account due to circumstances both within Company’s control (e.g., routine maintenance) and outside of Company’s control. The Services may be modified, updated, suspended and/or discontinued at any time without notice or liability except as otherwise expressly stated herein.
1.3 Illegal Use. Client shall not access, store, distribute or transmit any Viruses or any material during the course of its use of the SaaS Services that (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, (ii) facilitates illegal activity, and/or (iii) causes damage or injury to any person or property. “Virus” shall mean any thing or device (including without limitation any software, code, file or program) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device, prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise) and/or adversely affect the user experience, including worms, ‘Trojan’ horses, viruses and other similar things or devices. Notwithstanding anything to the contrary, Company reserves the right, without liability to Client, to disable or suspend the Client’s access to the SaaS Services in the event (a) of any breach or anticipated breach of this Agreement, (b) Client and/or its users access to and/or use of the Services disrupts or poses a security risk to the Services and/or any other client, may harm Company’s systems and/or any provider of any third-party services and/or may subject Company and/or any third-party to liability, (c) Client and/or its authorized users are using the Services for fraudulent, unauthorized or illegal activities, and/or (d) Company’s continued provision of any of the Services to the Client and/or its users is prohibited by applicable law.
1.4 Client Content. Client is responsible for providing all Client Content, criteria, and/or information and is responsible for the accuracy, quality, integrity and legality of such data and of the means by which authorized users access and use the Client Content. Client hereby grants Company a worldwide, non-exclusive right and license to reproduce, distribute and display the Client Content as necessary to provide the Services. Client represents and warrants that (a) Client owns all Client Content or that Client has permission or consent from the rightful owner to use each of the elements of Client Content; (b) Client has all rights necessary for Company to use the Client Content in connection with the Services; (c) Client has solicited, collected, stored and transferred the Client Content in accordance with all applicable laws, statutes, regulations, rules, and any obligations it may have under any contract or otherwise and (d) Client’s provision of, or authorization for Company to use, the Client Content does not violate any applicable laws, statutes, regulations, rules or any obligations it may have under any contract or otherwise. Client and its licensors retain title, all ownership rights, and all IP (as defined in Article 7), in and to the Client Content and reserve all rights not expressly granted to Company hereunder. Client shall provide such Client Content in the format and/or via the means as indicated by Company from time to time. Client agrees to (i) maintain the accuracy and completeness of information provided to Company (including without limitation the Client Content) and agrees to provide any changes to Company within thirty (30) days after any such change, and (ii) prevent unauthorized access to, and/or use of the Services, and notify Company immediately of any such unauthorized access to and/or use of the Services. “Client Content” means any elements of text, employee contact information, graphics, images, photos, designs, artwork, logos, trademarks, service marks, and other materials and/or content which Client (or a third party on behalf of Client) provides in connection with any Services. Client Content excludes any content available in the public domain, and any content owned or licensed by Company, whether in connection with providing Services or otherwise. Client specifically authorizes Company to use the Client Content as required to provide Services, and Client warrants that it has obtained necessary consent for Company to contact Client’s users directly to provide the Services. Notwithstanding anything herein to the contrary, Company may collect and use in any manner and for any purpose aggregated, anonymized data that cannot identify any person and that is derived from or created through the use of the Services by Client and/or its users.
1.5 Data Security. Client acknowledges and agrees that Company utilizes third-party service providers to host and provide the SaaS Services and store Client Content and the protection of such data will be in accordance with such third party’s safeguards for the protection of the security, confidentiality, and integrity of Client’s data. In the event of any data breach, Company will exercise reasonable commercial efforts to promptly notify Client, and will cooperate with Client in Company’s reasonable discretion as required by applicable laws and regulations to minimize the effects of any such breach. Client is responsible for properly configuring and using the SaaS Services and taking appropriat
e steps to maintain security, protection and backup of any and all Client Content.
1.6 Unauthorized Access. Company is not responsible for any unauthorized access to, alteration of, and/or the deletion, destruction, damage, loss and/or failure to store any of, Client’s data and/or other information that Client and/or its users submits and/or uses in connection with the Services (including as a result of Client’s and/or its users’ errors, acts or omissions).
1.7 Errors, Inaccuracies, Omissions and Performance. Occasionally there may be information on the Services that contain typographical errors, inaccuracies, and/or omissions that may relate to services, information, and data. Company may (i) correct any errors, inaccuracies, and/or omission, and/or (ii) make changes to content, descriptions, service and/or other information without obligation to issue any notice of such changes, except as prohibited by law. Company also may revise, suspend and/or terminate an event and/or promotion at any time.
1.8 FTP. Client may access a secure file transfer protocol (“FTP”) site that may be used for the transfer of files; provided that Client shall be solely responsible for any data loads and/or transfers.
- Use; Maintenance; Prohibited Conduct; Account
2.2 Permitted Use. Client represents and warrants that its users of the Services will abide by the terms and conditions of this Agreement and Order Forms, and Client acknowledges and agrees that it shall be fully liable for Client’s and any user’s breach of the terms and conditions set forth in this Agreement and/or any Order Form. Client will have password-protected access and usage rights to the SaaS Services as needed to enable Client’s designated administrators conducting participant enrollment and administration of Client’s incentive program in accordance with the rules of such incentive program. Client shall assign access controls for its users, which may allow access to certain sensitive information, Client shall manage the access privileges and will be liable for activity occurring under Client’s account. Client acknowledges and agrees that Company will not be liable for Client’s access controls, management thereof and/or information shared as a result of the foregoing. Client is solely responsible and liable for all transactions, activities, and other consequences resulting from the access controls, management thereof and information shared. Client shall immediately report to Company any breach of the terms and conditions set forth herein, of which Client becomes aware. In no event shall Client allow the SaaS Services to be accessed and/or used by parties other than Client and its authorized users. Company reserves the right to refuse use and/or access to such SaaS Services by any individual party other than Client and its authorized users. Client may only permit its authorized users that have established an account on the SaaS Services to use and/or access such SaaS Services during any given month.
2.3 Maintenance; Modification. During the Term or as otherwise specified in the applicable Order Form, Company will make available to the Client updates, patches and bug fixes with respect to the SaaS Services as may, from time to time, be developed and made generally available by Company to its clients. Company reserves the right to modify and/or discontinue, temporarily and/or permanently, the Services and/or any features or portions thereof without prior notice. Client agrees that Company will not be liable for any modification, suspension and/or discontinuance of the Services or any part thereof.
2.4 Prohibited Conduct. Except as expressly permitted hereunder, Client shall not, directly or indirectly, without the express, prior written consent of Company (i) use or permit the use of, reproduce and/or otherwise duplicate, disclose, distribute, modify, encumber, time-share, license, sublicense, rent, lease, and/or transfer the SaaS Services and/or any portion thereof, and/or any of Client’s rights thereto, (ii) merge any SaaS Services or any portion thereof with any other program and/or materials, (iii) reverse engineer, decompile, disassemble, extract, and/or otherwise derive and/or attempt to derive the source code of any SaaS Services and/or any other compiled software provided or made available by Company hereunder, (iv) adapt, translate, localize, port, or otherwise modify any SaaS Services and/or any other compiled software provided or made available by Company hereunder, (v) remove, obliterate, and/or cancel from view any copyright, trademark, and/or other proprietary and/or confidentiality notice and/or legend appearing on and/or in any materials provided or made available by Company hereunder, and/or fail to reproduce any such notice and/or legend on any copy made of any such materials, (vi) take any action that materially interrupts and/or interferes with, or that might reasonably have been expected to materially interrupt and/or interfere with, the SaaS Services, Company’s business operations and/or other clients, (vii) copy or imitate part or all of the design, layout and/or look and feel of the Services in any form or media and/or (viii) permit any other user, person and/or entity to engage in any of the foregoing conduct. In the event of Client’s breach of Section 1.3 or Section 2.4, Company may terminate Client’s account immediately without liability.
2.5 Third Party Service Providers. Client acknowledges and agrees that Company may use third party service providers to provide the Services described herein (including, but not limited to the use of fulfillment partners in connection with the fulfillment of incentives and/or rewards), and Company shall have no liability related thereto.
3.1 Fees. In consideration of the provision of Services described herein, Client shall pay Company the Fees set forth herein. All fees reflected are in US dollars.
(a) Subscription Fee. Client agrees to pay Company the annual subscription fee set forth in the applicable Order Form.
(b) Set Up and Configuration Fee. Client agrees to pay Company an initial set up fee in the amount set forth in the applicable Order Form.
(d) Operational Support Fees. Client agrees to pay Company the monthly operational support fee set forth in the applicable Order Form.
(e) Additional Fees. Client agrees to pay Company all fees for any additional Services purchased by Client as set forth in the applicable Order Form.
(f) Creditworthiness. Upon Company’s request, Client will provide Company with financial information to enable Company to evaluate Client’s credit. Should there be substantial adverse change in Client’s credit standing or if Client does not comply with the payment provisions hereunder, Company will have the right to change the terms of payment and its obligations to supply further Services will be subject to reaching a mutual agreement on such revised terms.
3.2 Invoices. Unless otherwise set forth herein and/or set forth in an Order Form, all invoices shall be due and payable as follows: (i) the annual subscription fee shall be invoiced yearly in advance, (ii) the initial set up fee shall be invoiced upon execution of the applicable Order Form, and (iii) fees for pass-through costs (including rewards and redemptions) shall be invoiced on a monthly basis, (iv) operational support fees shall be invoiced monthly in advance, and (v) fees for additional Services shall be invoiced as set forth in the applicable Order Form. Unless otherwise set forth herein and/or in the applicable Order Form, all invoices shall be due and payable upon receipt of such invoice. The subscription fees, set up fees, rewards and redemption fees, operational support fees and additional fees are collectively referred to herein as “Fees.” For avoidance of doubt, Client’s payment of Fees must be made prior to accessing and/or using the Services.
3.3 Credit Card Payments; ACH. Unless otherwise set forth herein and/or in an Order Form, all Fees shall be deducted from a payment account designed by Client. Client authorizes Company and/or its third-party service provider to automatically charge the payment account for the Fees in advance or as otherwise agreed to by the parties in writing. If Client’s payment account on file is closed or the account information is changed, or if, for any reason, a charge is rejected by Client’s payment account, Client shall immediately update Client’s payment account or supply a new payment account, as appropriate. If Client is unable to update its payment account with appropriate information, then Company will send an invoice to Client detailing the amount due. Client must pay the amount due in full within seven (7) days after the date of the invoice. Upon Company’s request, Client agrees to promptly complete and submit a credit card authorization and/or ACH authorization form to Company, as applicable. Client permanently and irrevocably waives any and all right to enact a ‘chargeback’ (that is, a disputed, reversed or contested charge with the applicable bank, credit card or charge card) against such payments for any reason whatsoever against Company.
3.4 Expenses. Client shall promptly reimburse Company for any out-of-pocket expenses reasonably incurred in connection with the performance of the Services and/or the delivery, installation, support and/or configuration of any SaaS Services at Client’s location and/or facilities.
3.5 Taxes. All Fees due and payable under this Agreement and/or any Order Form are exclusive of applicable taxes, which will be added at the prevailing rate from time to time. Client is solely responsible for all taxes, fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement (collectively, “Taxes”) except for taxes based on Company’s net income and/or payroll taxes. Client will indemnify, defend and hold harmless Company for all taxes imposed which may be attributable to the Services.
3.6 Out of Scope Services. In the event Client requests additional Services outside the scope of Services described herein and/or in the applicable Order Form, then Client shall submit such request in writing to Company. Thereafter, the parties shall memorialize any agreed upon changes in writing via amendment to this Agreement and/or applicable Order Form.
3.7 Late Payment. In the event that Fees are not paid on a timely basis, including without limitation due to an invalid or expired credit card number, Company may, without liability to Client, in addition to other available remedies, disable the password, account and access to all or part of the SaaS Services if any fees are not paid. In the event of the foregoing, Company shall not be obligated to provide any or all of the Services until such Fees are paid in full. Client acknowledges and agrees that Company shall not be in breach of this Agreement or liable for failure to perform in the event Client fails to make payments when due hereunder. All Fees due and payable by Client to Company hereunder must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law. In the event Fees are not paid on a timely basis, interest will be due and payable and calculated daily at a rate of 2.5% per month or the highest rate permissible by applicable law, whichever is lower.
3.8 Invoice Dispute Process
(a) Process. If Client receives an invoice which it reasonably believes, acting in good faith and with proper supporting evidence, specifies a charge which is not valid and properly due (“Disputed Charge”), then Client shall notify Company in writing (“Dispute Notice”) within seven (7) business days from the date such invoice is received to notify Company that it has a bona fide dispute in relation to the amount invoiced. For avoidance of doubt, disputed invoices do not relieve Client of paying invoices in full on or before the date on which such payments are due. Client shall specify reasonable details of the nature of the dispute in the Dispute Notice. The parties shall discuss the Disputed Charge within five (5) calendar days of the date of the Dispute Notice. In the event the Disputed Charge is not resolved within such time period, then the matter shall be escalated to an executive officer of each party. Such executives shall initially discuss the Disputed Charge within five (5) calendar days after receipt of notice and use commercially reasonable efforts to resolve the Disputed Charge within ten (10) calendar days thereafter. If the dispute is not resolved within such time period, then either party may at any time thereafter submit such dispute to a court of competent jurisdiction as set forth in Article 15.
(b) Resolution of Dispute. When the dispute is resolved, any payment to be made to Company, or amount to be refunded to Client, as the case may be, shall be made within ten (10) calendar days after the resolution of such Disputed Charge.
(c) Confidentiality. For avoidance of doubt, all negotiations pursuant to this Section shall be treated as confidential compromise and settlement negotiations. Nothing said or disclosed, nor any document produced, in the course of such negotiations wh
ich is not otherwise independently discoverable shall be disclosed to any third party nor offered or received as evidence or used for impeachment or for any other purpose in any current or future arbitration or litigation.
(d) No Notice. In the event Company does not receive a Dispute Notice within such seven (7) day period, then the relevant invoice shall be deemed to be correct and shall be paid in full in accordance with the terms and conditions of this Agreement and/or applicable Order Form.
4.1 Term. This Agreement shall commence upon execution of the initial Order Form and shall continue for until expiration or termination of all Order Forms under this Agreement (“Term”).
4.2 Order Form Term. The term of each Order Form will commence on the date set forth in the Order Form and continue thereafter as set forth in such Order Form, unless otherwise terminated earlier in accordance with the terms and conditions of such Order Form and/or this Agreement.
5.1 Termination for Breach. If a party materially breaches this Agreement and/or Order Form (the “Defaulting Party”), and the Defaulting Party does not cure such breach within seven (7) days after its receipt of written notice of material breach with respect to a payment-related breach or thirty (30) calendar days after its receipt of written notice of any other material breach, the non-defaulting party may terminate this Agreement and/or Order Form upon written notice to the Defaulting Party. Termination of this Agreement and/or Order Form will be without prejudice to any other rights and remedies that the non-defaulting party may have under this Agreement, the Order Form and/or at law and/or in equity.
5.2 Termination for Insolvency. Either party may terminate this Agreement and/or any Order Form(s) in the event the other party becomes Insolvent. For purposes of this Section 5.2, “Insolvent” or “Insolvency” shall mean a party that makes an assignment for the benefit of creditors, has a receiver, trustee, custodian (or similar party) appointed or designated to administer its affairs or otherwise take control of its assets or business operations, becomes a debtor in a voluntary proceeding under any chapter of the United States Bankruptcy Code or any law or statutory scheme relating to insolvency, reorganization or liquidation, or an involuntary petition in bankruptcy, or other insolvency proceeding is filed against a party and is not dismissed within sixty (60) calendar days thereafter.
5.3 Termination for Convenience. Unless otherwise set forth in the applicable Order Form, Company may terminate this Agreement and/or any Order Form at any time for convenience upon written notice to Client.
5.4 Effect of Termination.
(a) In the event (i) Company terminates this Agreement and/or any Order Form pursuant to Section 5.3 (Termination for Convenience), or (ii) Client terminates this Agreement and/or any Order Form pursuant to Section 5.1 (Termination for Breach), or as a result of Company’s Insolvency pursuant to Section 5.2 (Termination for Insolvency), then upon termination, Client will pay all outstanding Fees, charges and expenses incurred through the effective date of termination. In the event that Client has prepaid for any Services that have not yet been provided, Company shall provide an appropriate pro rata refund to Client.
(b) In the event (i) Company terminates this Agreement and/or any Order Form pursuant to Section 5.1 (Termination for Breach), or as a result of Client’s Insolvency pursuant to Section 5.4 (Termination for Insolvency), and/or (ii) either party terminates this Agreement and/or any Order Form pursuant to Article 12, upon termination Client will pay all outstanding Fees, charges and expenses owed through the then-current Term of this Agreement and/or Order Form, as applicable.
(c) For avoidance of doubt, any termination for breach or Insolvency shall be without prejudice to any other rights or remedies available to the terminating party at law or in equity.
6.1 Confidential Information. During the Term of this Agreement, the parties may have access to certain information that is not generally known to others including any and all information relating to the party and its business including without limitation: its business, legal, and operational practices, financial, technical, commercial, marketing, competitive advantage and/or other information concerning the business and affairs, partnerships and potential partnerships, business model, fee structures, employees, funding opportunities, metrics, know-how, systems, procedures and techniques that has been or may hereafter be provided or shown to the other party, regardless of the form of the communication and the terms and conditions of this Agreement and any Order Forms (“Confidential Information“). The party disclosing Confidential Information shall be referred to herein as the “Disclosing Party” and the party receiving Confidential Information shall be referred to herein as the “ReceivingParty.”
6.2 Receiving Party. Receiving Party agrees not to use or disclose the Confidential Information, and may disclose the Confidential Information only as necessary and appropriate to perform its obligations hereunder and to receive the benefit of the Services in accordance with this Agreement to its officers, directors, employees, agents and subcontractors (and their employees) (“Representatives”) who have a need to know such Confidential Information solely in connection with this Agreement. The Receiving Party will cause such Representatives to comply with this Agreement and will assume full responsibility for any failure to comply with the terms of this Agreement. The Receiving Party will not transfer or disclose any Confidential Information to any third party without the Disclosing Party’s prior written consent and without such third party having a contractual obligation (consistent with this Article 6) to keep such Confidential Information confidential. The Receiving Party will not use any Confidential Information for any purpose other than to perform its obligations under this Agreement.
6.3 Exclusions. Confidential Information does not include information that: (i) is obtained by the Receiving Party from the public domain without breach of this Agreement and independently of the Receiving Party’s knowledge of any Confidential Information; (ii) was lawfully and demonstrably in the possession of the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; and/or (iv) becomes known by the Receiving Party from a third party independently of the Receiving Party’s knowledge of the Confidential Information and is not subject to an obligation of confidentiality.
6.4 Legal Requirements. If the Receiving Party is requested or required to disclose any of the Disclosing Party’s Confidential Information under a subpoena, court order, statute, law, rule, regulation or other similar requirement (a “Legal Requirement“), the Receiving Party will, if lawfully permitted to do so, provide prompt notice of such Legal Requirement to the Disclosing Party so that the Disclosing Party may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If the Disclosing Party is not successful in obtaining a protective order or other appropriate remedy and the Receiving Party is legally compelled to disclose such Confidential Information, or if the Disclosing Party waives compliance with the provisions of this Agreement in writing, the Receiving Party may disclose, without liability hereunder, such Confidential Information solely to the extent necessary to comply with the Legal Requirement.
6.5 Confidentiality Breach. The parties agree that ownership of any IP (as defined in Article 7) in any materials owned by the other party shall remain with that party, and nothing in this Agreement shall imply that any right or license in respect of such IP is being granted to the other party.
6.6 Disposition of Confidential Information on Termination or Expiration. Upon termination or expiration of this Agreement or upon the Company’s written request, the Client will return to the Company all copies of Confidential Information already in the Client’s possession or within its control. Alternatively, with the Company’s prior written consent, the Client may destroy such Confidential Information; provided that the Confidential Information is (i) destroyed in accordance with applicable law, rule or regulation and (ii) is rendered unreadable, undecipherable and otherwise incapable of reconstruction, in which case an officer of the Client will certify in writing to the Company that all such Confidential Information has been so destroyed. With respect to Confidential Information of Client and/or Client Content, upon termination or expiration of this Agreement, Company shall delete all such data within sixty (60) days after termination. If Client requires assistance in extracting any data, Company may assist Client at Company’s then-current fees. The obligations with respect to Confidential Information, as set forth in this Article 6, shall continue in force and effect for a period of five (5) years after termination or expiration of this Agreement or, with respect to such portions of such Confidential Information that constitute trade secrets under applicable law, for so long as such trade secret status is maintained.
6.7 Remedy. Each party acknowledges that a breach of this Article 6 may result in irreparable and continuing damage to the Disclosing Party for which monetary damages may not be sufficient, and agrees that the Disclosing Party will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction. This Article 6 shall survive the expiration or termination of this Agreement.
7.1 Intellectual Property. Company retains all rights, title, interest and ownership of, any and all IP and proprietary rights with respect to the Services, and any other materials provided or made available to Client by Company hereunder. “IP” means all intellectual property including without limitation all patents, inventions, trademarks, service marks, trade names and trade dress, copyrights and copyrightable works, trade secrets, know-how, design rights and database rights. Except for the rights expressly granted to Client in this Agreement, all such Services and other materials that are provided or made available, and all work product that is developed, under this Agreement, all modifications, compilations, and derivative works thereof, and all intellectual property and proprietary rights pertaining thereto, are and shall remain the property of Company and its respective licensors (and to the extent any rights of ownership in any such materials, works, or rights might, for any reason, otherwise vest in Client, Client hereby assigns such ownership rights to Company).
7.2 Rights. Company confirms that it has all the rights necessary to provide the SaaS Services described herein and has the ability to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
8.1 Company Warranty. Company represents and warrants that (i) the SaaS Services will perform substantially in accordance with the terms set forth herein, (ii) it will, at all times, comply with all applicable laws and regulations of the United States of America in providing the Services, and (iii) it has taken all action necessary for the approval and execution of this Agreement. The warranty set forth in this Section 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Company’s instructions, or modification or alteration of the Services by any party other than Company and/or authorized by Company in writing.
8.2 Client Warranty. Client represents and warrants that (i) it will, at all times, comply with all applicable local, state, federal, and foreign laws in using the Service(s), (ii) Client will (a) establish and maintain such data security program as necessary to ensure Clint Content is not accessed, used or disclosed contrary to the provisions of this Agreement, or any other applicable privacy laws and regulations; and (b) establish, implement and maintain such physical, electronic and procedural safeguards to maintain the security and confidentiality of such Client Content; and (iii) it has the requisite legal and corporate power, right, and authority to enter into this Agreement.
8.3 Remedy. Client’s sole and exclusive remedy and Company’s sole and exclusive liability for any breach of Company’s warranties set forth herein is for Company to use commercially reasonable efforts to correct any non-conformance within a reasonable period of time or provide Client with an alternative means of accomplishing the desired performance; provided that Client notifies Company of such breach in writing within thirty (30) days after the date of Company’s alleged breach.
8.4 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1 OF THIS AGREEMENT, COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES AND MATERIALS ARE PROVIDED BY COMPANY ON AN “AS-IS” BASIS. COMPANY DOES NOT REPRESENT, WARRANT OR COVENANT THAT THE SERVICES AND MATERIALS (INCLUDING, BUT NOT LIMITED TO, ANY DOCUMENTATION, REPORTS, ADVICE AND RECOMMENDATIONS, IN ANY FORM) PROVIDED BY COMPANY IN CONNECTION WITH THIS AGREEMENT, ARE OR WILL NECESSARILY ALWAYS BE COMPLETELY ACCURATE, CURRENT, COMPLETE AND/OR CONTINUOUSLY AVAILABLE. COMPANY DOES NOT REPRESENT, WARRANT OR COVENANT THAT THE SERVICES AND MATERIALS WILL BE AVAILABLE WITHOUT INTERRUPTION OR TOTALLY ERROR-FREE, OR THAT ALL DEFECTS (INCLUDING, BUT NOT LIMITED TO, MINOR OR COSMETIC DEFECTS THAT DO NOT SIGNIFICANTLY AND ADVERSELY AFFECT FUNCTIONALITY OR FEATURES) WILL BE CORRECTED. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER LOSS OR DAMAGE RESULTING FROM (A) TRANSFER OF DATA OVER COMMUNICATION NETWORKS SUCH AS THE INTERNET AND/OR (B) INABILITY TO ACCESS OR GET ACCURATE DATA FROM THIRD-PARTY SYSTEMS AND/OR APPLICATIONS THAT THE SERVICES ARE DEPENDENT ON.
- Limitation of Liability
EACH PARTY’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF AND/OR IN CONNECTION WITH THIS AGREEMENT AND ANY ORDER FORMS SHALL IN NO EVENT EXCEED THE FEES PAYABLE BY CLIENT TO COMPANY FOR THE SERVICES PROVIDED UNDER THE APPLICABLE ORDER FORM THAT GAVE RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF SUCH CLAIM, EXCLUDING PASS-THROUGH COSTS AND REIMBURSED COSTS, CHARGES AND EXPENSES PAID BY CLIENT. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, DATA AND BUSINESS) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT NO LIMITATION OR EXCLUSION OF LIABILITY SHALL APPLY WITH RESPECT TO ANY CLAIMS ARISING OUT OF OR RELATING TO ARTICLE 6 AND/OR ARTICLE 10 OF THIS AGREEMENT, OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THE FOREGOING LIMITATIONS SET FORTH HEREIN SHALL APPLY DESPITE ANY NEGLIGENCE, MISCONDUCT, ERRORS AND/OR OMISSIONS BY COMPANY, ITS EMPLOYEES, REPRESENTATIVES AND/OR AGENTS. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, COMPANY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
10.1 Indemnification by Company. Company agrees to indemnify, defend and hold harmless Client and its Representatives, from and against any liabilities, losses, costs, damages, demands and expenses, including reasonable attorney fees, arising out of and/or relating to any third-party claim (“Claim”) that Client’s use of the Services constitutes infringement, violation, trespass, contravention or breach in the United States of any patent, copyright, trademark, license or other property or proprietary right of any third party, or constitutes the unauthorized use or misappropriation of any trade secret of any third party. Notwithstanding anything herein to the contrary, the indemnity in this Section 10.1, shall not apply (i) to a Claim arising from any modification of the Services by Client or any third party, or from the use of the Services in a manner contrary to those specific business functions as expressly provided under this Agreement, to the extent such modification or use resulted in the Claim, (ii) if such Claim results from Client’s use of the Services after notice of the alleged or actual infringement from Company or any appropriate authority, and/or (iii) in the event of any breach of Client’s obligations under this Agreement and/or any Order Form, or the use of the Services other than in connection with this Agreement and/or Order Form, or in a manner not reasonably contemplated by this Agreement and/or Order Form. The indemnities set forth herein shall survive the termination of this Agreement.
10.2 Indemnification by Client. Client shall indemnify, defend and hold Company and its Representatives harmless from and against all Claims arising out of or related to (i) Client’s and its users’ negligent or willful acts and/or omissions, and/or (ii) Client’s and/or its users’ material breach of the terms and/or conditions of this Agreement and/or any Order Form.
10.3 Indemnification Procedure. The indemnified party shall (i) provide notice to the indemnifying party of any Claim immediately upon becoming aware of the same, (ii) provide the indemnifying party the sole right to conduct the defense of any claim or action, or the negotiation of any settlement, in respect of a Claim and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express written instructions of the indemnifying party, and (iii) act in accordance with the reasonable instructions of the indemnifying party and gives the indemnifying party such assistance as it shall reasonably require in respect of the conduct of the said defense, including without prejudice to the generality of the foregoing, the filing of all pleadings and other court processes and the provision of all relevant documents. The indemnified party acknowledges and agrees that it shall use commercially reasonable efforts to mitigate the costs and expenses related to such claim. The indemnified party may reasonably participate in such defense, at its sole expense.
10.4 Claim. In the event of a Claim related to Company’s IP infringement indemnification obligations described herein, Company shall be entitled at its own expense and option to (i) procure the right for Client to continue utilizing the IP which is at issue, (ii) modify the IP to render same non-infringing, or (iii) replace the IP with equally suitable, functionally equivalent, compatible, non-infringing IP. If none of the foregoing is possible as determined by Company in its sole and absolute discretion, Company may terminate this Agreement and/or the applicable Order Form without liability upon written notice to Client. This Section sets forth Client’s sole and exclusive remedy for any Claim related to Company’s IP infringement indemnification obligations described herein.
- Independent Contractor
It is understood and agreed that the relationship of Company to Client is and shall continue to be that of an independent contractor and neither Company nor any of Company’s employees shall be entitled to receive client employee benefits. Nothing in this Agreement will be construed to create an agency or employment relationship between Client and Company for any purpose or create obligations of such party to third parties. As an independent contractor, Company agrees to be responsible for the payment of all taxes and withholdings specified by law, which may be due in regard to compensation paid by Client.
- Force Majeure
Notwithstanding anything herein to the contrary, neither party shall be liable or deemed to be in default for any delay or failure in performance hereunder to the extent resulting, directly or indirectly, from acts of God, acts of war, terrorism, or civil insurrection, strikes, walkouts, or other organized labor interruptions, telecommunications or utility interruptions or failures, fire, explosions, floods, or other natural disasters, any similar cause or any third party beyond the reasonable control of such party, and any delay or failure of the other party to fulfill its obligations hereunder (“Force Majeure Event”). In the event of a Force Majeure Event, the parties agree to meet and discuss how to resolve the issue. Either party may terminate this Agreement by giving the other party written notice if the other party fails to perform those obligations for thirty (30) days due to such Force Majeure Event. Notwithstanding the foregoing, a Force Majeure Event shall never excuse the failure to make a payment due under this Agreement and/or any Order Form, except to the extent that the Force Majeure Event physically interferes with the delivery of the payment. The party whose performance is affected shall use commercially reasonable efforts to minimize the impact of such Force Majeure Event.
All notices and other communications given or made pursuant to this Agreement and/or any Order Form must be in writing, sent to the persons that the parties may designate from time to time and will be deemed to have been given upon the earlier of actual receipt or (a) personal delivery to the party to be notified, (b) when sent, if sent by facsimile or electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt.
This Agreement may be assigned by Company at any time and for any reason. This Agreement shall not be assigned, delegated or transferred by Client without prior written consent from Company. This Agreement will be binding upon the parties and their respective legal successors and permitted assigns.
- Arbitration; Governing Law; Venue
15.1 Arbitration Procedures. Except in the event the claim meets the requirements set forth in the ‘Exceptions to Agreement to Arbitrate’ section below and/or if Client opts out of arbitration as described herein, all claims shall be settled by binding arbitration in accordance with the commercial arbitration rules, in effect at the time the proceedings begin, of the American Arbitration Association. Any such controversy and/or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. All information relating to and/or disclosed by any party in connection with the arbitration of any disputes shall be treated by the parties, their representatives, and the arbitrator as proprietary business information and shall not be disclosed without prior written authorization of the disclosing party. The arbitration shall be held in Dayton, Ohio or any other location Company agrees to. Each party shall bear the burden of its own counsel fees incurred in connection with any arbitration proceedings.
15.2 Opt-Out. Client can opt-out and decline this agreement to arbitrate by contacting Company in writing within thirty (30) days from the date that Client first became subject to this arbitration provision to One10 LLC, Attn: Opt-Out Arbitration, email@example.com. If Client opts out, neither Client nor Company can require the other to participate in an arbitration proceeding.
15.3 Exceptions to Agreement to Arbitrate. Either Client and/or Company may assert claims, if it qualifies, in small claims court in Dayton, Ohio. Either party may bring a lawsuit for injunctive relief to stop unauthorized use and/or abuse of the Services, breach of Company’s Confidential Information and/or IP rights without first engaging in arbitration and/or the informal dispute-resolution process described in this Article 17.
15.4 Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action or proceeding arising out of or related to Company’s Confidential Information or IP provided hereunder (or in the event Client opts out of arbitration as described above) must be instituted exclusively in the federal courts of the United States or the courts of the State of Ohio in each case located in Dayton, Ohio and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
16.1 Changes to Services. Company expressly reserves the exclusive right to, without prior notice, at any time and from time to time (i) offer new, additional or substitute products and services, and (ii) modify, amend or discontinue offering all or any particular Services.
16.2 Waiver. The failure by either party at any time to enforce any of the provisions of this Agreement, Order Form or any right or remedy available this Agreement, Order Form or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy, or option or in any way affect the validity of this Agreement and/or any Order Form. The waiver of any default by either party shall not be deemed a continuing waiver, but shall apply solely to the instance to which such waiver is directed.
16.3 Severability. If any one or more of the provisions of this Agreement and/or any Order Form are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement and/or any Order Form will be unimpaired and will remain in full force and effect.
16.4 Survival. Any provision of this Agreement which, by its nature, would survive termination of this Agreement will survive any such termination of this Agreement.
16.5 Headings. The headings and titles of the Sections of this Agreement are not part of this Agreement, but are for convenience only and are not intended to define, limit or construe the contents of the provisions contained herein.
16.6 Amendment. No modification of or amendment to any Order Form shall be effective unless such modification or amendment is in writing and signed by both parties. Company may amend the terms of this Agreement at any time upon notice to Client, and such amendment shall become effective upon the execution of a new Order Form or renewal of an existing Order Form. Any prior agreements or representations, either written or oral, relating to the subject matter of this Agreement and/or any Order Form are of no force or effect.
16.7 Attorneys Fees. If either party brings legal action to enforce its rights under this Agreement and/or any Order Form, the prevailing party will be entitled to recover all fees, costs and expenses (including without limitation reasonable attorneys’ fees) incurred in connection with the action.
16.8 Entire Agreement. This Agreement and the Order Forms constitute the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the parties.
16.9 Publicity. Neither party shall, without the prior written approval of the other party, disclose the existence and/or any of the terms or conditions of this Agreement to any third party or issue any press release or make any other public announcement relating to this Agreement or the other party. Notwithstanding the foregoing, Client hereby grants Company the right to use Client’s name, trade name, trademark, logo, acronym, or other designation to identify Client as Company’s customer in connection with brochures, advertising, promotional materials made available or otherwise published by Company, without the Client’s prior consent.
16.10 Exclusivity. Client acknowledges and agrees that the Services provided by Company are not exclusive to Client and that Company may provide such Services to other entities.