THESE TERMS AND CONDITIONS (the “Terms and Conditions”) apply to the Cordial Services Agreement between Company and Client to which they are attached (the “Agreement”). COMPANY and Client are each referred to herein as a “Party”, and together they are referred to as “Parties”). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
These Terms and Conditions will automatically be incorporated by reference into the Agreement, and all references herein to the “Agreement” shall be construed as references to the Agreement into which these Terms and Conditions have been incorporated by reference.
The following definitions shall apply to the Agreement:
2.1 Acceptable Use Policy or AUP: The Acceptable Use Policy for the Web Services which is contained on the COMPANY website, and is incorporated by reference as a part of the Agreement. COMPANY may amend the AUP at any time as stated in the AUP.
2.2 Affiliate: Any entity which directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or common control with a Party.
2.3 Authorized User: Any person, organization, or entity to which Client grants access to use the COMPANY-Provided Services in accordance with the terms of the Agreement and the COMPANY Acceptable Use Policy. Client shall be liable to
2.4 COMPANY-Provided Services: The Web Services and any other services provided by or on behalf of COMPANY as specified in the Agreement, in any combination.
2.5 COMPANY Materials: Any materials (including without limitation documentation) provided by COMPANY for use by Client in connection with the COMPANY
Provided Services, all of which materials, including all Rights therein, shall be exclusively owned by COMPANY.
2.6 Confidential Information: The inventions, trade secrets, computer software in both object and source code, algorithms, documentation, know how, technology, ideas, and all other business, customer, technical, and financial information owned by COMPANY or Client, which is designated as confidential, or communicated in such a manner or under such circumstances as would reasonably enable a person or organization to ascertain its confidential nature.
2.7 Content: Any data, images, programming, computer code, photographs, illustrations, graphics, audio clips, video clips, or text used on the Site(s) and/or provided toCOMPANY by Client for incorporation into and/or transmission or posting using the COMPANY-Provided Services (or as otherwise provided in the Agreement), including, but not limited to, any and all marketing, advertising, and promotional materials, technical information, and product descriptions.
2.8 Monthly Service Fees: Those certain fees payable to COMPANY for the use of and access to the COMPANY-Provided Services, as set forth in the Agreement.
2.9 Recipient: Any person to whom Client or Client’s Authorized Users send communications using the Web Services.
2.10 Rights: Any and all rights of copyright, patent rights, trademark and service mark rights, trade secret rights, trade dress rights, character rights, artistic and moral rights, and any and all other proprietary rights of any kind whatsoever, together with associated registration rights and rights to sue for and collect damages for any infringement or violation of any of the foregoing.
2.11 Site(s): The websites for which COMPANY-Provided Services may be used by Client, as identified in the Agreement. For the avoidance of doubt, each top level domain (e.g., a.com, b.com, etc.) or subdomain (e.g., a.COMPANY.com, b.COMPANY.com, etc.) shall be considered a separate Site, and must be specifically stated in the Agreement. Client may add additional Sites by providing notice to COMPANY, provided that COMPANY reserves the right to reject additional Sites if COMPANY determines, in its sole and reasonable discretion, that the addition of such Site(s) could subject COMPANY to legal or business risk.
2.12 Trademarks: The trademarks, service marks, trade dress, trade names, and logos used by COMPANY and/or Client, as applicable, in connection with COMPANY’s provision of the COMPANY-Provided Services under the Agreement.
2.13 Web Services: The Internet-based data storage and communication services to be provided by COMPANY to Client hereunder, as more particularly described in the Agreement.
Subject to the terms and conditions of the Agreement, and during the Term of the Agreement COMPANY grants to Client a non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable, limited right to access and use the COMPANY-Provided Services selected in the Agreement for the Client’s internal business purposes. The COMPANY-Provided Services (including without limitation any enhancements, developments, and improvements or changes thereto whether suggested or requested by Client or otherwise, and any COMPANY Materials provided to Client by COMPANY) and any rights not granted herein are owned by COMPANY or its licensors. All improvements, enhancements or developments to the COMPANY-Provided Services shall be the property of COMPANY and shall not be considered “works made for hire,” even if paid for by Client. The COMPANYProvided Services are provided as an online service only, and Client shall have no right whatsoever to receive, review, or otherwise use or have access to the source or object code for the COMPANY-Provided Services. This grant of rights by COMPANY is made solely to Client for specific use with the Sites specified in the Agreement, and not to any parent, subsidiary or affiliate of Client.
3.1 List Upload. COMPANY will provide for
3.2 Recipients. COMPANY will not provide any information collected from Recipients to any person, or use such Recipient information for any purpose (other than for COMPANY’s legitimate internal business purposes, including without limitation fraud control or the use of Recipient data in anonymous aggregate form) without Client’s prior consent.
4.1 Restrictions on Use; Acceptable Use Policy. Client shall not (nor shall Client allow any third party to): (1) resell, rent, lease, assign, or otherwise transfer any of its rights under the Agreement; (2) copy, translate, port, modify, make derivative works of, incorporate into or with other software, disassemble, decompile, or otherwise reverse engineer, or otherwise attempt to learn, derive or discover the source code, source files, structure, underlying user interface techniques, underlying ideas or underlying algorithms of, the COMPANY-Provided Services by any means; (3) use a single account for multiple business entities (including without limitation Client’s Affiliates), unless specifically authorized by COMPANY in writing; (4) provide third parties with access to its COMPANY-Provided Services account; (5) attempt to circumvent any license, timing or use restrictions that are built into the COMPANY-Provided Services; and/or (6) use the COMPANY-Provided Services in violation of COMPANY’s Acceptable Use Policy as further described below. Client shall immediately notify COMPANY of any violation of the foregoing, whether by Authorized Users or any other party, of which Client becomes aware. Client’s use of the Web Services provided hereunder shall strictly comply with
4.2 Username and Password. Client agrees and acknowledges that it is solely responsible for all activities that occur under its COMPANY-Provided Services password(s) or account(s) provided to Client. Without limiting the foregoing, it is Client’s sole responsibility to keep its password(s) and/or account information strictly confidential except as necessary for use by Authorized Users. Client agrees that each Authorized User shall have a distinct username and password in order to track each Authorized User’s use of the Web Services and avoid unauthorized use of the Web Services. Client shall be solely responsible for any authorized or unauthorized access to its account by any person. If any unauthorized use of Client’s account(s) or password(s) occurs, Client must immediately notify COMPANY of such unauthorized use via phone and/or email.
4.3 Trademarks. Client grants to COMPANY the right to use those of its Trademarks supplied by Client to COMPANY for the purpose of COMPANY’s performance of its obligations under the Agreement. In the event that Client supplies COMPANY with Trademarks owned by third parties other than Client or COMPANY, Client represents that it has secured the right to use such Trademarks in connection with the Web Services from such third party owner(s).
4.5 Publicity. Neither Party may issue any press release regarding the subject matter of the Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld (except consent shall not be required for disclosures to comply with any state or federal reporting requirement). Client gives its approval and consent for COMPANY (and it subcontractors who provide COMPANY-Provided Services to Client) to include Client’s name and/or logo in their client lists and refer to Client in marketing materials and business conversations as a client.
4.6 Restricted Users. Client further represents and warrants to COMPANY that it is not a Restricted User. For purposes of the Agreement, a “Restricted User” is any person, organization or entity, or any officer, director, or controlling shareholder of an organization or entity, who or which (1) is a national of or an entity existing under the laws of an embargoed country as proscribed by, or is designated as a Specially Designated National or institution of primary money laundering concern by, the U.S. Treasury Department; (2) is listed on the Denied Persons List or Entity List maintained by the U.S. Commerce Department; (3) is engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (4) is owned, controlled, or acting on behalf of a Restricted User. If Client is or becomes a Restricted User during the term of the Agreement, Client shall immediately notify COMPANY, and COMPANY shall have an immediate right to terminate this Agreement upon notice to Client.
4.7 Government Rights. If the COMPANY-Provided Services are used by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 and/or 48 C.F.R. 2.101 and 12.212, the U.S. Government’s rights in the COMPANY-Provided Services, including its rights to use, modify, reproduce, release, perform, display or disclose the same, is subject in all respects to the commercial license rights and restrictions provided in the Agreement.
Except to the extent access to certain COMPANY-Provided. Services is granted pursuant to a free trial as may be specified in the Agreement,
(a) Client agrees to pay COMPANY those one-time fees, Monthly Service Fees, and other fees and amounts specified in the Agreement, and
(b) COMPANY shall promptly enable Client’s access to the COMPANY-Provided Services upon Client’s payment of any applicable one-time fees and/or account activation fees (as applicable). Unless otherwise specified, all invoiced amounts shall be due and payable no later than fifteen (15) days from the date of the subject invoice. Each payment of any and all fees and charges due hereunder shall be made in the manner specified in the Agreement, or by such other means as may be approved by COMPANY in writing or by email. If Client does not object in writing to an invoiced amount within thirty (30) calendar days of a given invoice or statement, Client shall be deemed to have acknowledged the correctness of that invoice or amount and to have waived its right to dispute that invoice or amount. Late payments will bear interest at the rate of one percent (1.0%) per month. Client shall be liable for all collection expenses incurred by COMPANY, including reasonable attorneys’ fees. Client’s dispute as to a portion of any invoice or amount owed shall not give Client the right to withhold or delay payment of the whole invoice or amount owed. COMPANY will have no obligation to perform any of its obligations under the Agreement if Client fails to make any timely payment, following its receipt of notice of the nonpayment and a five (5) business day opportunity to cure, and COMPANY will have the right in its sole discretion, without liability to Client, to either (a) suspend performance of any of its obligations under the Agreement for so long as the payment remains outstanding, or (b) terminate the Agreement. Client acknowledges that the fees set forth herein do not include such taxes, and Client shall be responsible for payment of any such taxes required to be collected by COMPANY in addition to the fees set forth herein, specifically excluding any taxes based on, measured by or with respect to the net or gross income of COMPANY. COMPANY and Client may mutually agree in writing or by email on any change any services to be provided by COMPANY. COMPANY may only unilaterally impose an adjustment of the Monthly Service Fee payable by Client under the Agreement effective as of the commencement of a Renewal Term, and in each event upon advance notice of not less than thirty (30) calendar days prior to the commencement of such renewal term. Client may terminate the Agreement upon written notice to COMPANY within thirty (30) calendar days of its receipt of such notice from COMPANY to adjust the Monthly Service Fees; provided, however, that if Client fails to object to such adjustment in writing within the foregoing thirty (30) calendar days, then Client will be deemed to have agreed to the adjustment.
6.1 Term. The Agreement will have an initial term (the “Initial Term”), and shall automatically renew for successive renewal terms (each, a “Renewal Term”), of the length set forth on the first page of the Agreement. If there is no term specified in the Agreement, then the length of each such term of Agreement shall be one (1) year each. The Initial Term and all Renewal Terms are referred to herein collectively as the “Term”.
6.2 Nonrenewal. Either Party may elect not to renew the Agreement at the end of the Initial Term or any Renewal Term by providing written notice of nonrenewal to the other Party in writing (i) if you are on month-to-month terms, at least fourteen (14) calendar days before the start of the next Renewal Term; or (ii) if you are on a fixed period term, at least sixty (60) calendar days prior to the start of the next Renewal Term. In the event notice of nonrenewal is received by the other Party within the timeframes set forth above, the Agreement will expire effective as of the end of the day on the last day of the Initial Term or Renewal Term in which such notice was provided. Any notice of nonrenewal received following the expiration of the timeframes set forth above will become effective at the end of the last day of the following Renewal Term.
6.3 Rights of Termination. Either Party may terminate the Agreement upon written notice to the other Party in the event of the other Party’s breach of a representation or warranty made hereunder or failure to substantially perform its obligations under the Agreement, provided that written notice of such breach or failure is provided by the non-breaching Party, and such breach or failure to perform is not cured to the non-breaching Party’s reasonable satisfaction within thirty (30) calendar days of the breaching Party’s receipt of that notice. Further, a Party may immediately terminate the Agreement, without opportunity to cure, upon written notice to the other Party in the event: (a) the non-terminating Party ceases to do business; or (b) either Party initiates or has initiated against it, voluntarily or involuntarily, any act, process or proceeding under the provisions of any bankruptcy statute or law, or under any other insolvency law or other statute or law providing for the modification or adjustment of the rights of creditors, which is not dismissed within thirty (30) calendar days from the date of filing.
6.4 Events upon Termination. Upon termination of the Agreement, each Party shall cease performance of its obligations under the Agreement, and each Party shall immediately cease the use of, irretrievably delete and remove from all computer hardware andstorage media, and promptly return or destroy any of the other Party’s Confidential Information or other materials in its possession or control (including all copies), and shall provide written certification of destruction executed by an officer upon request. Termination shall not affect each Party’s payment obligations to the other Party in connection with activities prior to termination of the Agreement. In the event of termination, all unpaid fees payable by Client through the effective date of termination shall become immediately due and payable.
6.5 Survival. Sections 6, 7, 8, 9 and 10 of the Agreement, and any other provisions of the Agreement which, by their terms, require performance after the termination of the Agreement, or have application to events that may occur after such termination, shall survive the termination of the Agreement.
7.1 In General. All Confidential Information provided by a Party shall be maintained in confidence by the other Party, and neither Party shall, directly or indirectly, either (a) divulge to any person or organization (other than its employees, contractors, agents, and professional advisers who have a need to know such information and who are bound by a written nondisclosure agreement containing confidentiality obligations no less restrictive than those set forth herein), or (b) use in any manner whatsoever other than as necessary for the performance of its obligations under the Agreement, any of the Confidential Information of the other Party without the other Party’s express prior written consent to do so. The terms of the Agreement (including pricing), and any information concerning the services provided by COMPANY’s Affiliated
7.2 Exclusions. The provisions of this Section shall not have application to any information disclosed by a Party to the extent the receiving Party can reasonably demonstrate such information (i) is or becomes lawfully available to the public through no act or omission of the receiving Party or its agents, employees, contractors or representatives; (ii) is received without restriction from another person or organization lawfully in possession of such information and entitled to provide such information to the receiving Party; (iii) was rightfully in the possession of the receiving Party on a non-confidential basis prior to its disclosure by the disclosing Party; (iv) is approved for release by the disclosing Party in writing; or (v) is independently developed by the receiving Party or its employees without access to or use of the disclosing Party’s Confidential Information, as evidenced by written records demonstrating such independent development.
7.3 Compelled Disclosure. COMPANY shall have the right to disclose Recipient information in response to judicial, governmental or administrative process, requirement, request or order, provided such disclosure is in accordance with COMPANY’s privacy
Client represents and warrants to COMPANY that: (i) it has full right, power and authority to enter into and fully perform its obligations under the Agreement; and (ii) it and its Authorized Users shall comply with all laws, rules and regulations applicable to its activities in connection with the Agreement and its business.
THE COMPANY-PROVIDED SERVICES ARE PROVIDED TO CLIENT “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND, AND COMPANY AND ITS SUBCONTRACTORS DISCLAIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARDS TO THE COMPANY-PROVIDED SERVICES, INCLUDING WITHOUT LIMITATION MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, COMPANY DOES NOT WARRANT THAT THE COMPANY-PROVIDED SERVICES WILL MEET CLIENT’S NEEDS REQUIREMENTS OR THOSE OF ITS AUTHORIZED USERS, OR THAT THE OPERATION OF THE COMPANY-PROVIDED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OF OR RESULTS FROM THE USE THEREOF IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. USE OF ANY INFORMATION OBTAINED VIA THE COMPANY-PROVIDED SERVICES IS ENTIRELY AT CLIENT’S OWN RISK.
9.1 Indemnification by Client. Client shall indemnify, defend, and hold harmless COMPANY and its officers, directors, employees and agents from and against and in respect of any and all demands, judgments, losses, costs, expenses, obligations, liabilities, damages, fines, recoveries and deficiencies, including without limitation interest, penalties, reasonable attorneys’ fees and costs (collectively, “Losses”) in connection with a third party claim, action, suit or proceeding (each, a “Claim”) that any such indemnified party may incur or suffer, which arise, result from, or relate to (a) Client’s breach of any term or condition of the Agreement; or (b) the use of the COMPANY-Provided Services, (c) or the violation of COMPANY’s Acceptable Use Policy or any applicable laws, by Client or a Client Authorized User; or (d) any Content or other materials provided by Client through or in connection with the COMPANY-Provided Services. Client shall be responsible for any breach of any term of this Agreement applicable to Authorized Users.
9.2 Indemnification by COMPANY. COMPANY shall indemnify, defend, and hold harmless Client and its officers, directors, employees and agents from and against and in respect of any Claim alleging that the COMPANY-Provided Services infringes the United States patent, trademark, or copyright of that third party, by paying all amounts that a court finally awards or that COMPANY agrees to pay in settlement of any such Claim. In the event of any adjudication that the COMPANY-Provided Services does infringe or if the licensing or use of the same or any part thereof is enjoined, COMPANY shall, at its expense and option, do one of the following: (a) procure for Client the necessary right to continue using the affected functionality; (b) replace or modify the affected functionality with a functionally equivalent noninfringing item or portion thereof; or (c) terminate this Agreement upon written notice to Client. COMPANY shall not be liable to, and shall have no obligation hereunder to, defend, indemnify or hold harmless Client from or against any Claim based on or resulting from (1) the use of the COMPANY-Provided Services by Client other than as authorized in this Agreement; (2) the combination of the COMPANY-Provided Services or any portion thereof with any product, software, business method, machine, or device which is not provided by COMPANY; (3) any modification of the COMPANY-Provided Services or any portion thereof by any party other than COMPANY or its subcontractors; (4) use of an allegedly infringing version of the COMPANY-Provided Services or any portion thereof, if the alleged infringement could be avoided by the use of a different version made available to Client by COMPANY; or (5) the use of the COMPANY-Provided Services after notice from COMPANY that Client should stop such use due to a potential infringement claim. This paragraph states the entire liability of COMPANY with respect to infringement of intellectual property rights.
9.3 Indemnification Procedure. A party seeking indemnification (the “Protected Party”) shall promptly notify the indemnifying Party in writing of any Claim and give the indemnifying
9.4 Limitation of Liability. Except for (i) each Party’s indemnification obligations relating to intellectual property infringement, and (ii) liability resulting from the misuse of the COMPANY-Provided Services or the violation of COMPANY’s Acceptable Use Policy by Client or a Client Authorized User, the total liability of a Party under this Agreement for any cause shall not exceed the net amount payable by Client to COMPANY under that Agreement during the twelve (12) month period prior to the date on which such liability first arose.
9.5 No Consequential Damages. NEITHER COMPANY NOR CLIENT WILL HAVE ANY LIABILITY TO EACH OTHER OR TO ANY OTHER PERSON OR ORGANIZATION FOR LOST PROFITS OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OF ANY DESCRIPTION (INCLUDING WITHOUT LIMITATION LOST REVENUE, LOST DATA, OR LOSS OR INTERRUPTION OF BUSINESS), WHETHER BASED ON CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY, REGARDLESS OF WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND IRRESPECTIVE OF THE NUMBER OR NATURE OF CLAIMS.
10.1 Governing Law. Each Agreement shall be governed by the laws of the State of California without reference to its conflicts of laws provisions. For the purpose of resolving conflicts related to or arising out of the Agreement, the Parties expressly agree that venue shall be in San Diego, California only, and, in addition, the Parties hereby consent to the exclusive jurisdiction of the federal and state courts located in San Diego County, California. The Parties specifically disclaim application of the United Nations Convention on the International Sale of Goods, 1980.
10.2 Notices. Any notice under this Agreement shall be made in writing and delivered by certified mail, postage pre-paid and return receipt requested, or by nationally recognized express courier which provides a written proof of delivery, to the address set forth on the signature page of the Agreement, or as otherwise set forth in the Agreement. Notices may also be sent via confirmed fax with a copy sent via overnight courier. Notice shall be deemed effective upon the delivery (as evidenced by the delivery receipt). The parties may also agree to send and receive notices by electronic mail or express courier, at the addresses provided by the respective parties in this Agreement or otherwise.
10.3 Inurement; Assignment. Each Agreement shall be binding upon and inure to the benefit of the Parties and their permitted successors and assigns. Neither Party may assign an Agreement, or assign its rights or delegate its duties thereunder (whether directly or indirectly, in whole or in part, by operation of law or otherwise) without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, in the event of a sale of all or substantially all of the stock, assets or business of a Party, and so long as the entity to which the contract is assigned is not a direct competitor of the other Party, that Party shall be entitled (upon written notice to, but without the prior written consent of, the other Party) to assign this Agreement to the purchasing entity in connection with such transaction, provided that the purchasing party shall assume in writing the obligations and performance of this Agreement.
10.4 No Third Party Beneficiaries. This Agreement is made solely for the benefit of the Parties to the Agreement and not to any other party, including without limitation, Authorized Users.
10.5 Entire Agreement; Modifications. This Agreement contains the entire agreement of the Parties relating to the subject matter
10.6 Export Compliance. Client agrees and acknowledges
10.7 Other. No waiver of any provision of this Agreement, or any breach of this Agreement (a) shall be effective unless made in writing, or (b) shall operate as or be construed to be a continuing waiver of such provision or breach. In the event any portion of the Agreement is held to be invalid or unenforceable, such portion shall be construed as nearly as possible to reflect the original intent of the Parties, or if such construction cannot be made such provision or portion thereof shall be severable from the Agreement (provided that the same shall not affect in any respect whatsoever the remainder of the Agreement). Except for payment obligations hereunder, neither Party shall be in breach of the Agreement in the event it is unable to perform its obligations as a result of natural disaster, war, emergency conditions, labor strike, acts of terrorism, the substantial inoperability of the Internet, the inability to obtain supplies, or any other reason or condition beyond its reasonable control. Each Party is an independent contractor of, and is not an employee, agent or authorized representative of, the other Party. This Agreement shall not in any respect whatsoever be deemed to create a partnership, joint venture, or other business combination between COMPANY and Client. Except as may be expressly provided in the Agreement, neither Party shall have the right, power or authority to act or create any obligation, express or implied, on behalf of each other. Notwithstanding any applicable statute of limitations, the Parties agree that any claims for breach of the Agreement shall be brought by a Party within two (2) years of the date that Party first has notice of the existence of such breach. No provisions in either Party’s purchase orders or other business forms shall modify, supersede or otherwise alter the terms of the Agreement. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which shall be one and the same document. A copy (including PDF) or facsimile of a signature shall be binding upon the signatory as if it were an original signature.