PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO,” CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.
These Terms of Service constitute an agreement (this “Agreement”) by and between FIOR INNOVATIONS, LLC, an Oregon limited liability company (“Provider”) and the corporation, LLC, partnership, sole proprietorship, or other business entity executing this Agreement (“Customer”). This Agreement is effective as of the date Customer clicks “Accepted and Agreed To” (the “Effective Date”). Customer’s use of and Provider’s provision of Provider’s SaaS (as defined below in Section 1.6) are governed by this Agreement.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.
The following capitalized terms will have the following meanings whenever used in this
- “AUP” means Provider’s acceptable use policy currently posted at Acceptable Use Policy.
- “Customer Data” means all information processed or stored through the SaaS by Customer or on Customer’s behalf. Customer data does not include payment records, credit cards or other information Customer uses to pay Provider, or other information and records related to Customer’s account, including without limitation identifying information related to Customer staff involved in payment or other management of such account.
- “Data Rates” means Provider’s current fees associated with retention and transfer of Customer Data beyond what is included in a particular subscription package associated with an Order, and subject to change by Provider.
- “Documentation” means Provider’s standard manual, instructions, help features, or other content related to use of the SaaS.
- “Order” means an order for access to the SaaS based on specific economic and business terms, executed through the Provider website, and hereby incorporated into this Agreement.
- “Privacy/Security Law” means privacy and security laws governing Provider’s handling of Customer Data (if any).
- “SaaS” means Provider’s RESolute software services delivered through its website.
- “Term” is defined in Section 1 below.
- “User” means any individual who uses the SaaS on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
- Use of the SaaS. During the Term, Customer may access and use the SaaS pursuant to the terms of any outstanding Order, including such features and functions as the Order requires.
- Documentation: Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the SaaS.
- SaaS Revisions. Provider may revise SaaS features and functions at any time, including without limitation by removing such features and functions or reducing service levels. If any such revision to the SaaS materially reduces features or functionality provided pursuant to an outstanding Order, Customer may within 30 days of notice of the revision terminate such Order, without cause, or terminate this Agreement without cause if such Order is the only one outstanding.
- Subscription Fees. Customer shall pay Provider the fee set forth in each Order (the “Subscription Fee”) for each Term. Provider’s invoices are due upon receipt, and provision of the SaaS shall commence after Provider’s receipt of payment. Provider will not be required to refund the Subscription Fee under any circumstances. In the event Customer’s method of payment is declined, or payment of the Subscription Fee fails for any reason, Customer’s access to the SaaS will be immediately suspended until payment is received by Provider.
- Taxes. Amounts due under this Agreement are payable to Provider without deduction for any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value-added tax, whether or not withheld at the source (collectively, “Sales Tax”). Except as forbidden by applicable law, Provider may require that Customer submit applicable Sales Taxes to Provider. However, the preceding sentence does not apply to the extent that Customer is tax exempt, provided it gives Provider a valid tax exemption certificate within 30 days of the Effective Date. Provider’s failure to include any applicable tax in an invoice will not waive or dismiss its rights or obligations pursuant to this Section 2. If applicable law requires withholding or deduction of Sales Taxes or any other tax or duty, Customer shall separately pay Provider the withheld or deducted amount, over and above fees due. For the avoidance of doubt, this Section 3.2 does not govern taxes based on Provider’s net income.
CUSTOMER DATA & PRIVACY
- Use of Customer Data. Provider shall not: (a) access, process, or otherwise use Customer Data other than as necessary to facilitate the SaaS; or (b) give Customer Data access to any third party, except Provider’s subcontractors that have a need for such access to facilitate the SaaS and are subject to a reasonable written agreement governing the use and security of Customer Data. Further, Provider: (c) shall exercise reasonable efforts to prevent unauthorized disclosure or exposure of Customer Data; and (d) shall comply with all Privacy/Security Laws that are applicable both specifically to Provider and generally to data processors in the jurisdictions in which Provider does business and operates physical facilities.
- Statutory Special Terms. If Provider receives a “right to know,” deletion, “right to be forgotten,” or similar request related to Customer Data, Provider may respond in accordance with applicable law. Nothing in this Agreement precludes Provider from asserting rights or defenses it may have under applicable law related to such requests.
- Additional Fees. Customer recognizes and agrees that Provider may charge additional fees (without limitation) (a) for activities (if any) required by Privacy/Security Laws and (b) for activities Customer requests to help it comply with Privacy/Security Laws. In addition, Provider may charge additional fees for retention and transfer of Customer Data, and other fees it determines as reasonable from time to time according to a fee schedule or according to Customer’s usage, subject to advance notice to Customer.
- Machine Learning. Notwithstanding anything to the contrary, during the Term, Provider shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the SaaS and related systems and technologies (including, without limitation: Customer Data and data derived therefrom; Customer’s inputs, selections, actions, training and interactions in relation to the SaaS (the “Collected Data”); and machine learning models, learned elements, biases, attributes, attribute transformations, weights and other data or works derived from Customer Data or Collected Data (the “Learned Elements”). Provider shall be the exclusive owner of all intellectual property rights in such Collected Data and Learned Elements and will be free to use Collected Data and Learned Elements to improve and enhance the SaaS and for other development, diagnostic and corrective purposes in connection with the SaaS and other Provider offerings, provided that the Collected Data and Learned Elements do not contain any information that identifies or could reasonably be used to identify an individual person, a household, or Customer.
Retention and Transfer of Customer Data
- Provider uses Amazon Web Services (AWS) and its affiliated companies, tools, and resources as Provider’s primary data storage vendor and service, and other vendors as necessary for ancillary data services or redundancy. As such, Customer’s use of the SaaS is subject to the terms and conditions established by AWS, according to the AWS Customer Agreement, AWS Service Terms, and any other applicable terms and conditions.
- During the Term, Customer Data will be retained on Provider’s systems or third-party systems under Provider’s control (such as AWS). Customer may access and copy any Customer Data in Provider’s possession at any time. Provider shall reasonably facilitate such access and copying promptly after Customer’s request, provided Provider may charge its reasonable then-standard Data Rates for any such access and copying or for any related deconversion of data.
- Applicable Data Rates are subject to change from time to time. Any updates to Data Rates will be sent to the main Customer email address on file with Provider. Provider shall provide at least ten (10) days’ advance notice to Customer regarding any price increases in Data Rates before price increases become effective.
- At termination of the SaaS or end of the Term, Customer shall have the option to receive its Customer Data exported. Any export or transfer of Customer Data out of the SaaS or its systems shall be subject to any guidelines and protocols established by Provider, and any then-applicable Data Rates.
- Erasure. Provider may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more, without limiting Provider’s other rights or remedies. Within 30 days of termination of the SaaS or end of the Term, Provider shall permanently erase Customer Data.
- Required Disclosure. Notwithstanding the provisions above of this Article 4, Provider may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Provider shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
- Data Security. Provider shall exercise commercially reasonable efforts using industry standards, at least to prevent unauthorized exposure or disclosure of Customer Data, including administrative, technical, and physical safeguards appropriate: (1) to protect the security and confidentiality of Customer Data; (2) to protect against anticipated threats or hazards to the security or integrity of Customer Data; and (3) to protect against unauthorized access to or use of Customer Data. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the SaaS, Customer assumes such risks. Provider offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties. Provider shall review its security protocols and all other Customer Data security precautions regularly, but no less than annually, and update them to comply with applicable laws, regulations, technology changes, and best practices.
- Data Accuracy. Provider shall have no responsibility or liability for the accuracy of data uploaded to the SaaS by Customer, including without limitation Customer Data and any other data uploaded by Users.
- Excluded Data. Customer warrants that (a) it has not and will not transmit Excluded Data (as defined below), or permit transmission of Excluded Data, to Provider or its computers or other media and, (b) to the best of its knowledge, Customer Data does not and will not include Excluded Data. Customer shall inform Provider of any Excluded Data within Customer Data promptly after discovery (without limiting Provider’s rights or remedies). Customer recognizes and agrees that: (i) the provisions of this Agreement related to Customer Data do not apply to Excluded Data; (ii) Provider has no liability for any failure to provide protections in the Excluded Data Laws (as defined below) or otherwise to protect Excluded Data; and (iii) Provider’s systems are not intended for management or protection of Excluded Data and may not provide adequate or legally required security for Excluded Data. Provider is not responsible or liable for any data exposure or disclosure or related loss to the extent that it involves Excluded Data. (“Excluded Data” means any data or images that Customer does not have the legal right to possess, transmit, or display; any images containing personally identifiable information; or any data or images that violate Provider’s AUP. “Excluded Data Laws” means any law or regulation governing Excluded Data, including without limitation any law or regulation protecting privacy or security rights of Excluded Data subjects.) In the event Provider becomes aware of Excluded Data, Provider will make reasonable efforts to coordinate with and provide notice to Customer regarding options for the disposition of Excluded Data, however, Provider reserves all rights to segregate, restrict or suspend access to, transfer, or delete Excluded Data at its discretion.
CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS
- Acceptable Use. Customer shall comply with the AUP. Customer shall not: (a) use the SaaS for service bureau or time-sharing purposes or in any other way allow third parties to exploit the SaaS; (b) provide SaaS passwords or other log-in information to any third party; (c) share non-public SaaS features or content with any third party; (d) access the SaaS in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the SaaS, or to copy any ideas, features, functions or graphics of the SaaS; or (e) engage in web scraping or data scraping on or related to the SaaS, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that it suspects any breach of the requirements of this Section 1, including without limitation by Users, Provider may suspend Customer’s access to the SaaS without advanced notice, in addition to such other remedies as Provider may have. Neither this Agreement nor the AUP requires that Provider take any action against Customer or any User or other third party for violating the AUP, this Section 5.1, or this Agreement, but Provider is free to take any such action it sees fit.
- Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the SaaS, including without limitation by protecting its passwords and other log-in information. Customer shall notify Provider immediately of any known or suspected unauthorized use of the SaaS or breach of its security and shall use best efforts to stop said breach.
- Compliance with Laws. In its use of the SaaS, Customer shall comply with all applicable laws, including without limitation Privacy/Security laws.
- Users & SaaS Access. Customer is responsible and liable for: (a) Users’ use of the SaaS, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the SaaS through Customer’s account, whether authorized or unauthorized.
IP & FEEDBACK
- IP Rights to the SaaS. Provider retains all right, title, and interest in and to the SaaS, including without limitation all software used to provide the SaaS and all graphics, user interfaces, logos, and trademarks reproduced through the SaaS. This Agreement does not grant Customer any intellectual property license or rights in or to the SaaS or any of its components, except to the limited extent that such rights are necessary for Customer’s use of the SaaS as specifically authorized by this Agreement. Customer recognizes that the SaaS and its components are protected by copyright and other laws.
- Feedback. Provider has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Customer, Customer’s Clients, or other Users give Provider, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Provider’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer. Feedback will not be considered Customer’s trade secret. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Provider’s products or services.)
“Confidential Information” refers to the following items Provider discloses to Customer: (a) any document Provider marks “Confidential”; (b) any information Provider orally designates as “Confidential” at the time of disclosure, provided Provider confirms such designation in writing within ten (10) business days; (c) the Documentation, whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information Customer should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Customer. Customer is on notice that the Confidential Information may include Provider’s valuable trade secrets.
- Nondisclosure. Customer shall not use Confidential Information for any purpose other than permitted use of the SaaS under this Agreement or related agreements (the “Purpose”). Customer: (a) shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Article 2; and (b) shall not disclose Confidential Information to any other third party without Provider’s prior written consent. Without limiting the generality of the foregoing, Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify Provider of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give Provider prompt notice of any such legal or governmental demand and reasonably cooperate with Provider in any effort to seek a protective order or otherwise to contest such required disclosure, at Provider’s expense.
- Termination & Return. With respect to each item of Confidential Information, the obligations of Section 1 above (Nondisclosure) will terminate five (5) years after the date of termination of the SaaS; provided that such obligations related to Confidential Information constituting Provider’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Customer shall return all copies of Confidential Information to Provider or certify, in writing, the destruction thereof.
- Injunction. Customer agrees that: (a) no adequate remedy exists at law if it breaches any of its obligations in this Article 7; (b) it would be difficult to determine the damages resulting from its breach of this Article 7, and such breach would cause irreparable harm to Provider; and (iii) a grant of injunctive relief provides the best remedy for any such breach, without any requirement that Provider prove actual damage or post a bond or other security. Customer waives any opposition to such injunctive relief or any right to such proof, bond, or other security. (This Section 3 does not limit either party’s right to injunctive relief for breaches not listed.)
- Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Provider will retain all right, title, and interest in and to all Confidential Information.
- Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Customer is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:
- Immunity. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that- (A) is made- (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
- Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
REPRESENTATIONS & WARRANTIES.
- From Provider. Provider represents and warrants that it is the owner of the SaaS and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights to use the SaaS set forth in this Agreement without the further consent of any third party. Provider’s representations and warranties in the preceding sentence do not apply to use of the SaaS in combination with hardware or software not provided by Provider. In case of breach of the warranty above in this Section 1, Provider, at its own expense, shall promptly: (a) secure for Customer the right to continue using the SaaS; (b) replace or modify the SaaS to make it noninfringing; or if such remedies are not commercially practical in Provider’s reasonable opinion, (c) refund the fees paid for the SaaS for every month remaining in the then-current Term following the date after which Customer access to the SaaS ceases as a result of such breach of warranty. If Provider exercises its rights pursuant to Subsection 8.1(c) above, Customer shall promptly cease all use of the SaaS and all reproduction and use of the Documentation and erase all copies in its possession or control. This Section 8.1, in conjunction with Customer’s right to terminate this Agreement where applicable, states Customer’s sole remedy and Provider’s entire liability for breach of the warranty above in this Section 8.1.
- From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the SaaS; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable
- Warranty Disclaimers. Except to the extent set forth in Section 1 above, CUSTOMER ACCEPTS THE SAAS “AS IS,” WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) PROVIDER HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE SAAS WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE SAAS IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
Customer shall defend, indemnify, and hold harmless Provider and the Provider Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the SaaS, including without limitation: (a) claims by Users or by Customer’s employees, as well as by Customer’s own customers; (b) claims related to Data Incidents (as defined below); (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the SaaS through Customer’s account, including without limitation by Customer Data; and (d) claims that use of the SaaS through Customer’s account, including by Users, harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. INDEMNIFIED CLAIMS INCLUDE, WITHOUT LIMITATION, CLAIMS ARISING OUT OF OR RELATED TO PROVIDER’S NEGLIGENCE. Customer’s obligations set forth in this Article 9 include, without limitation: (i) settlement at Customer’s expense and payment of judgments finally awarded by a court of competent jurisdiction, as well as payment of court costs and other reasonable expenses; and (ii) reimbursement of reasonable attorneys’ fees incurred before Customers’ assumption of the defense (but not attorneys’ fees incurred thereafter). If Customer fails to assume the defense on time to avoid prejudicing the defense, Provider may defend the Indemnified Claim, without loss of rights pursuant to this Article 9. Provider will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it or a Provider Associate admit wrongdoing or liability or subjects either of them to any ongoing affirmative obligation. (“Provider Associates” are Provider’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns. A “Data Incident” is any (1) unauthorized disclosure of, access to, or use of Customer Data, including without limitation Excluded Data, or (2) violation of Privacy/Security Law through Customer’s account. Data Incidents include, without limitation, such events caused by Customer, by Provider, by Customer’s customers or other users, by hackers, and by any other third party.)
LIMITATION OF LIABILITY
- Dollar Cap. PROVIDER’S CUMULATIVE LIABILTY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED FIVE THOUSAND DOLLARS ($5,000).
- Excluded Damages. Except with regard to breaches of Article 7 (Confidential Information), IN NO EVENT WILL PROVIDER BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
- Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 9 APPLY TO THE BENEFIT OF PROVIDER’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND THIRD PARTY CONTRACTORS, AS WELL AS: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF PROVIDER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. Customer acknowledges and agrees that Provider has based its pricing on and entered into this Agreement in reliance upon the limitations of liability and disclaimers of warranties and damages in this Article 10 and that such terms form an essential basis of the bargain between the parties. If applicable law limits the application of the provisions of this Article 9, Provider’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Provider’s liability limits and other rights set forth in this Article 9 apply likewise to Provider’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
TERM & TERMINATION
- Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue for the period set forth in the Order or, if none, for twelve (12) months. Thereafter, the Term will renew for successive one month periods, unless either party refuses such renewal by written notice 30 or more days before the renewal date.
- Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure.
- Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the SaaS and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 3 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose. Upon the 30th day after Termination, or earlier or later upon mutual agreement, Provider shall permanently remove Customer Data from its systems. Upon termination of this Agreement and pursuant to its terms and fees, Customer may receive a full export of its Customer Data.
- Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
- Notices. Provider may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to [email protected] and such notices will be deemed received 72 hours after they are sent.
- Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, epidemics, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, government orders responding to any of the foregoing, or other causes beyond the performing party’s reasonable control.
- Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Provider’s express written consent. Provider may assign this Agreement to the surviving entity in a merger into another entity or in an acquisition of all or substantially all its assets. Except to the extent forbidden in this Section 4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
- Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
- No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
- Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of Oregon, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Bend, Oregon. This Section 7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
- Technology Export. Customer shall not: (a) permit any third party to access or use the SaaS in violation of any U.S. law or regulation; or (b) export any software provided by Provider or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the SaaS in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
- Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.