LAST UPDATED: February 18, 2024
Terms of Service
This Terms of Service, including the Order Form and Privacy Policy, which by this reference is incorporated herein (this “Agreement”), is a binding agreement between CAMBIUM CARBON PBC, a Delaware public benefit corporation (“Provider”) and the person or entity identified on the Order Form as the licensee of the applicable Provider IP (“Customer”). Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.
PROVIDER PROVIDES THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THIS AGREEMENT. BY CLICKING THE “ACCEPT” OR OTHERWISE SUBMITTING AN ORDER FORM CUSTOMER: (A) ACCEPT THIS AGREEMENT AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) CUSTOMER IS OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CUSTOMER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, IT HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, PROVIDER WILL NOT AND DOES NOT GRANT ACCESS, USE, OR ANY OTHER RIGHTS IN OR TO THE SERVICES OR PROVIDER IP TO CUSTOMER AND CUSTOMER MUST NOT ACCESS OR USE ANY OF THE SERVICES OR PROVIDER IP.
1. Definitions. Capitalized terms not otherwise defined in the body of this Agreement shall have the meanings set forth below:
(a) “Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
(b) “Aggregated Statistics” means data and information related to Customer’s or Authorized Users’ use of the Services that is used by Provider in an aggregate manner, including to compile statistical and performance information related to the provision and operation of the Services.
(c) “Administrative User” means the Authorized User designated by Customer to administer the Customer’s use and access to the Services, as initially set forth on an Order Form.
(d) “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access (e.g., a license seat) to the Software has been purchased hereunder, as set forth on an Order Form.
(e) “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
(f) “Documentation” means Provider’s user manuals, handbooks, tutorials, and guides relating to any of the Provider IP provided by Provider to Customer either electronically or in hard copy form.
(g) “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
(h) “Order Form” means the order form filled out and submitted (including electronically or through the Services) by or on behalf of Customer, and accepted by the Provider, for Customer’s purchase of its right to access and use the Services pursuant to this Agreement.
(i) “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
(j) “Provider IP” means the Software, Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Provider IP, but does not include Customer Data.
(k) “Services” means the ancillary services related to the Software (e.g., technical support, training, hosting) as may be set forth and further described on an Order Form.
(l) “Software” means the hosted software program(s) for which Customer is purchasing the right to access and use, including any mobile application or browser access to the software and Services, pursuant to this Agreement.
(m) “Third-Party Products” means any third-party products set forth on an Order Form.
2. Access and Use.
(a) Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with the terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 13(g)), limited license and right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein and the supporting Documentation. Such use is limited to Customer’s internal business use. Provider shall provide to Customer access to the necessary Access Credentials to allow Customer to access and use the Services. The total number of Authorized Users will not exceed the number set forth on the applicable Order Form, except as expressly agreed to in writing by Provider and subject to any appropriate adjustment of the Fees payable hereunder.
(b) Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 13(g)) limited license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
(c) Use Restrictions. Customer shall not use the Software for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Provider IP, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish (including, without limitation, any screen capture or screen recording), transfer, or otherwise make available the Provider IP; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any component of the Provider IP, in whole or in part; (iv) remove any proprietary notices from the Provider IP; or (v) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law.
(d) Reservation of Rights. Provider reserves all rights (including Intellectual Property Rights) not expressly granted to Customer in this Agreement. Except for the limited rights expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to the Provider IP or Third-Party Products.
(e) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Provider IP if: (i) Provider determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer’s or any Authorized User’s use of the Provider IP disrupts or poses a security risk to any of the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized User, is using the Provider IP for fraudulent or illegal activities (e.g., sharing Access Credentials); (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider’s provision of the Provider IP to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Software; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Software following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Software as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider shall have no liability for any damage, liabilities, Losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(f) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s (or its Authorized User’s) use of the Services and collect and compile Aggregated Statistics and use such Aggregate Statistics to modify, supplement, or improve the Services. As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all Intellectual Property Rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Software. Customer agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
(g) Authorized Administrative User. Customer shall, throughout the Term, maintain within its organization an Administrative User to serve as Customer’s primary point of contact for day-to-day communications, consultation, and decision-making regarding this Agreement. The Administrative User shall be responsible for providing all day-to-day consents and approvals on behalf of Customer under this Agreement. Customer shall ensure its Administrative User has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity. If Administrative User ceases to be employed by Customer or Customer otherwise wishes to replace its Administrative User, Customer shall promptly name a new Administrative User by written Notice to Provider.
(h) Changes. Provider reserves the right, in its sole discretion, to make any changes to any of the Provider IP that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Provider’s services to its customers; (ii) the competitive strength of or market for Provider’s services; or (iii) the Service’s cost efficiency or performance; or (b) to comply with applicable law.
3. Customer Responsibilities.
(a) General. Customer is responsible and liable for all uses of the Software, Services, and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall make all Authorized Users aware of this Agreement’s provisions and shall cause Authorized Users to comply with such provisions.
(b) Third-Party Products. Provider may from time to time make Third-Party Products (including Payment Processors) available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions (including, without any limitation, Payment Processor Terms) and the applicable flow-through provisions referred to in an applicable Order Form. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not access or use such Third-Party Products.
4. Service Levels, Support Services, and Third-Party Distribution Channels.
(a) Service Levels. Provider may offer various subscription levels for access and use of the Services (“Subscription Levels”), which may have access to different functions, features, or usage limits related to the Services and may be subject to various Fees. Unless otherwise agreed upon in writing by Provider, the Subscription Levels and associated Fees are as stated on Provider’s site or application and made available at the time of checkout pursuant to an Order Form. Unless otherwise designated by Provider at check out, the billing date for such Subscription Fees (“Billing Date”) is the date Customer first purchased a subscription to our Services (“Subscription”). Provider retains the right to change such Subscription Levels and Subscription Fees from time to time in its sole discretion, provided, that such change will not apply to a current Subscription Period, but may impact renewals. Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts to make the Services available in accordance with the Subscription Levels ordered by Customer as set forth on an Order Form, subject to reasonable periods of downtime.
(b) Support Services. This Agreement entitles Customer to Provider’s standard customer support services at the support levels ordered under an accepted Order Form. This Agreement does not entitle Customer to any additional support or training Services, unless such Services are ordered pursuant to an accepted Order Form. All support or training Services are subject to the terms and conditions linked or provided on an applicable Order Form.
(c) Third-Party Distribution Channels. If Customer or any of its Authorized Users access or use the Services by downloading our application from the Apple Store or Google Play Store (each, a “Distribution Channel”), as applicable, then Customer hereby agrees to access and use the Services only: (i) on available devices; and (ii) as permitted by the “Usage Rules” set forth in Apple’s Terms of Service or Google’s Terms of Service (as applicable), each a “third-party service provider” for the purposes of this section. Customer further acknowledges and agrees:
(i) This Agreement is between Customer and Provider, and not with such Distribution Channel, and that, as between Provider and such Distribution Channel, we are solely responsible for the Services.
(ii) The applicable Distribution Channel is not obligated to furnish any maintenance and support services with respect to the Services.
(iii) If the Services do not conform to any particular warranty (if any) Customer may notify the applicable Distribution Channel, and such Distribution Channel may refund the purchase price for the Services to the maximum extent permitted by applicable law, such Distribution Channel will have no other warranty obligations with respect to the Services. Any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure of the Services to conform to any warranty (if any) will be Provider’s responsibility and not the responsibility of the applicable Distribution Channel.
(iv) The applicable Distribution Channel is not responsible for addressing any claims Customer may have or any claims of any third-party relating to the Services or Customer’s access or use to the Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Services fail to conform to any applicable legal or regulatory requirements; and (iii) claims arising under consumer protection or similar legislation.
(v) If a third-party claims that the Services infringe such third-party’s intellectual property rights, between the Distribution Channel and Provider, Provider we will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
(vi) Customer shall also comply with all applicable terms required by such Distribution Channel when accessing or using the Services.
(vii) Customer agrees to comply with all U.S. and foreign export laws and regulations to ensure that neither the Services nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by such laws and regulations. By accessing, using, or possessing the Services, Customer represents and warrants that: (i) no Authorized User is located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) no Authorized User is listed on any U.S. Government list of prohibited or restricted parties.
The Parties acknowledge and agree that such Distribution Channels, and their respective subsidiaries, are third-party beneficiaries of this Agreement with respect to the Services, and that, upon Customer’s acceptance of the terms and conditions of this Agreement (to the extent related to such Distribution Channels (e.g., downloading Provider’s mobile application through such Distribution Channel), such Distribution Channel may have the right to enforce these this Agreement against Customer with respect to the Services as a third-party beneficiary thereof.
5. Fees and Payment.
(a) Fees and Renewals. Customer shall pay Provider the fees (“Fees”) as set forth on the applicable Order Form without offset or deduction, which, including without limitation recurring subscription fees and a percentage (currently, 5%) of all transactions effectuated through the Services based on the purchase price of such transactions. The Fees and payment terms for a Subscription may consist of recurring charges. By choosing a recurring payment plan, Customer acknowledges that such Fees have an initial and recurring payment feature, and Customer accepts responsibility for all recurring charges prior to cancellation. Customer’s account will be charged automatically on the Billing Date for all applicable Fees for the next subscription period, which may be on a monthly or annual basis (each, a “Renewal Period”), depending on the selection of the Service Level and subscription period (“Initial Subscription Period” together with any Renewal Period, the “Subscription Period”). For instance, if Customer has purchased a monthly Subscription, the Renewal Period will renew each month at the then-current non-promotional rate associated with such Subscription Level. Customer may change or terminate Customer’s Subscription or Subscription Level through the account settings associated with Customer’s account. Customer acknowledges and agrees that if Customer does not want to continue to be charged on a recurring basis, Customer must cancel or terminate its Subscription or Subscription Level before the end of the then-current Subscription Period. A Subscription cannot be terminated before the end of the period for which Customer has already paid, and except as expressly provided in this Agreement, Provider will not refund any amounts Customer has already paid. If Customer has terminated its Subscription or Subscription Level, Customer may continue to use its Subscription until the end of the then-current Subscription Period, and the Subscription will not be renewed after the expiration of the then-current Subscription Period.
(b) Payment. Customer shall make all payments hereunder in US dollars upon submission and acceptance of an Order Form on the Billing Date, and each applicable anniversary thereof based on the Subscription Period. Provider may collect payments of Fees from Customer directly or through its Payment Processor, which may bill Customer through a payment account selected at checkout or linked to Customer’s account. By providing a credit card or other acceptable payment method, Customer represents and warrants that Customer is authorized to use the designated payment method, and Customer authorizes Provider (or its designated Payment Processors) to charge Customer’s payment method for the Fees. Provider reserves the right to correct any errors or mistakes Provider (or a Payment Processor) makes in the checkout process. If Customer’s payment method cannot be verified, is invalid, or is otherwise not acceptable, Customer’s Subscription may be suspended or canceled. If Provider does not receive payment from Customer when due; Customer agrees to pay all amounts due upon demand. Without limiting the foregoing, f Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, Provider may suspend Customer’s and its Authorized Users’ access to any portion of the Services until such amounts are paid in full. For the avoidance of doubt, the Fees set forth on an Order Form may be updated, modified, or revised by Provider at the expiration of the applicable Subscription Period.
(c) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
(d) Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two (2) years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Provider may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid Provider with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5(a) and the costs and expenses of Provider in carrying out the audit. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of two (2) years after the termination or expiration of this Agreement.
(e) Payment Processing. As of the update date set forth above, payment processing services for the access and use of the Services are provided by Stripe, Square, and such other third-party payment processors offered by Provider from time to time (each, “Payment Processor”) and are subject to their respective terms and conditions (collectively, the “Payment Processor Terms”). By executing and submitting an Order Form, Customer agrees to be bound by the applicable Payment Processor Terms. For the avoidance of doubt, by submitting an Order Form and making a purchase of the right to access and use any of the Services through the payment online payment processing portal Customer authorizes Provider to share with such Payment Processor transaction information related to Customer’s use of the payment processing services provided by such Payment Processor.
6. Confidential Information. From time to time during the Term, Provider may disclose or make available to Customer (or its Authorized Users) information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, including such information contained in Provider IP, whether orally or in written, electronic, or other form or media and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to Customer at the time of disclosure; (c) rightfully obtained by Customer on a non-confidential basis from a third party; or (d) independently developed by Customer. Customer shall not disclose Provider’s Confidential Information to any Person, except to Customer’s employees who have a need to know the Confidential Information to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, Customer may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that Customer shall first have given written notice to Provider and made a reasonable effort to obtain a protective order; or (ii) to establish Customer’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the Customer shall promptly return to Provider all copies, whether in written, electronic, or other form or media, of Provider’s Confidential Information, or destroy all such copies and certify in writing Provider that such Confidential Information has been destroyed. Customer’s obligations of non-disclosure with regard to Confidential Information are effective as of the first date of an applicable Order Form and will expire five (5) years from the expiration or termination of the last applicable license term set forth on an Order Form; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7. Intellectual Property Ownership; Feedback.
(a) Provider IP. Customer acknowledges and agrees that, as between Customer (or their Authorized Users) and Provider, Provider owns all right, title, and interest, including all Intellectual Property Rights, in and to the Provider IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Products. Customer shall use reasonable efforts to safeguard all Provider IP from infringement, misappropriation, theft, misuse, or unauthorized access.
(b) Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to the Customer Data. Notwithstanding the generality of the foregoing, Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
(c) Feedback. If Customer, any of its employees or contractors, or any of its Authorized Users sends or transmits any communications or materials to Provider by mail, email, telephone, live chat, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features, improvements, modifications, additions, supplements, or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider on Customer’s behalf, and on behalf of its employees, contractors, and/or agents (including any Authorized User), all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
8. Warranty Disclaimer. THE PROVIDER IP IS PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
9. Limitation on Liability. TO THE FULLEST EXTENT OF THE LAW:
(a) IN NO EVENT WILL PROVIDER OR ITS AFFILIATES, BE LIABLE TO PROVIDER OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE ANY OF THE PROVIDER IP; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT WILL PROVIDER’S AND ITS AFFILIATES’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE PROVIDER PURSUANT TO THIS AGREEMENT FOR THE SERVICES HEREUNDER WITHIN THE LAST TWELVE (12) MONTHS.
(c) THE LIMITATIONS SET FORTH IN SECTION 9(a) AND SECTION 9(b) SHALL APPLY EVEN IF THE CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
10. Indemnification. Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any losses, damages, liabilities, costs (including attorneys’ fees) (“Losses”) resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s Intellectual Property Rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Provider IP in a manner not authorized by this Agreement; (iii) use of any of the Provider IP in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to any of the Provider IP not made by Provider, provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
11. Term and Termination.
(a) Term. This Agreement shall become effective on the earliest date Customer first registers an account, downloads, installs, accesses, or uses the Services, and remain in effect through the Subscription Period (and any renewal thereof) until terminated as set forth herein (the “Term”).
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days; or (B) breaches any of its obligations under this Agreement;
(ii) Subject to subsection (i) above, either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured for fifteen (15) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer’s obligations under 6, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
(d) Survival. This Section 11(d) and 1, 5, 6, 7, 8, 9, 10, 12 and 13 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
12. Security.
(a) Information Security. Provider will employ security measures in accordance with its Privacy Policy.
(b) Customer Control and Responsibility. Customer has and will retain sole responsibility for: (i) all Customer Data, including its content and use; (ii) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with its use of any of the Provider IP; (iii) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (iv) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (v) all access to and use of any of the Provider IP directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
(c) Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (i) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Provider IP; and (ii) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Software.
13. Miscellaneous.
(a) Entire Agreement. This Agreement, together with any other documents incorporated or acknowledged herein by reference (e.g., Order Form, Privacy Policy, Payment Processor Terms), constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall Provider be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, OTHER POTENTIAL DISASTER(S) OR CATASTROPHE(S), SUCH AS EPIDEMICS, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. Notwithstanding the foregoing, Provider may periodically supplement, modify, or revise this Agreement or any of its other policies, in Provider’s sole discretion, the date of such modification will be evidenced by the “Last Updated” date designated at the top of this Agreement. If a change to this Agreement materially modifies Customer’s rights or obligations, Provider may require that Customer accept the modified Agreement to continue using the Services. Material modifications are effective upon Customer acceptance of the modified Agreement. Immaterial modifications are effective upon publication. Disputes arising under this will be resolved in accordance with the version of this Agreement in effect at the time the dispute arose. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Maryland in each case located in the city of Arbutus and County of Baltimore, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(g) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(h) US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefore, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
(i) Export Regulation. The Provider IP (including the Software and Documentation) may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Provider IP (including Software or Documentation) to, or make the Provider IP (including the Software or Documentation) accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Provider IP (including the Software or Documentation) available outside the US.
(j) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.