1. Definitions. Capitalized terms shall have their meaning as defined or as otherwise set forth in Section 15.
2.1 Services. Subject to and conditioned on Customer’s and its Authorized Users’ acceptance of and compliance with the Agreement, Provider shall provide to Customer and its Authorized Users the services described in the Agreement (collectively, the “Services”), in accordance with the terms of the Agreement.
2.2 Subcontractors. Provider may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”), provided that such Subcontractors agree in writing to confidentiality terms at least as protective as those in the Agreement and provided that Provider shall remain responsible for its Subcontractors.
3. Restrictions. Neither Customer, nor its employees, contractors or other Persons within Customer’s control (collectively, “Customer Personnel”), shall access or use the Services or Provider Materials except as expressly permitted by the Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, neither Customer nor Customer Personnel shall:
(a) copy, modify or create derivative works or improvements of the Services or Provider Materials, except as the Agreement expressly permits;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service, except as the Agreement expressly permits;
(c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Services or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
(e) input, upload, transmit or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
(f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Provider Systems or Provider’s provision of services to any third party, in whole or in part;
(g) remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or Provider Materials, including any copy thereof;
(h) access or use the Services or Provider Materials for purposes of competitive analysis of the Services or Provider Materials, the development, provision or use of a competing software service or product or any other purpose that is to Provider’s detriment or commercial disadvantage;
(i) use the Services for any purpose that may (i) menace or harass any person or cause damage or injury to any person or property, (ii) involve the publication of any material that is false, defamatory, harassing or obscene, (iii) violate privacy rights or promote bigotry, racism, hatred, or harm, (iv) constitute an infringement of intellectual property or other proprietary rights, or (v) otherwise violate applicable laws, ordinances, or regulations;
(j) send unsolicited text messages, commonly known as spam;
(k) violate any applicable federal, state or local laws, or any carrier regulations, Mobile Marketing Association ('MMA') Guidelines (https://www.mmaglobal.com/policies/global-mobile-advertising-guidelines), Twilio’s acceptable use policy and terms of service (including use of SMS for emergency services) (https://www.twilio.com/legal/aup), CWTA code of conduct (http://www.txt.ca/wp-content/uploads/2018/04/Common-Short-Code_Code-of-Conduct.pdf) and guidelines (http://www.txt.ca/wp-content/uploads/2019/02/Canadian-Common-Short-Code-Application-Guidelines-Version-3-7-FINAL.pdf), or CTIA handbook (https://www.wmcglobal.com/storage/us_resources/ctia-short-code-monitoring-handbook-current-Short-Code-Monitoring-Handbook-v1.7.pdf); or
(l) otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under Section 2.1.
4. Fees; Payment Terms.
4.1 Fees. For the initial term of the Agreement, the Customer shall pay Provider the fees set forth in the Agreement (“Fees”) in accordance with this 45. Unless otherwise set forth in the Agreement, the fees for each renewal term under the Agreement shall increase by the greater of 3% or the increase in CPI.
4.2 Taxes. All Fees and other amounts payable by Customer under the Agreement are exclusive of sales, use and similar taxes. Customer is responsible for all such taxes imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, excluding, for the avoidance of doubt, any taxes imposed on Provider’s income.
4.3 Payment. Customer shall pay all Fees within 30 days after the date of the invoice therefor. Customer shall make all payments hereunder in US dollars. Customer shall make payments to the address or account specified in the Agreement or such other address or account as Provider may specify in writing from time to time.
4.4 No Deductions or Setoffs. All amounts payable to Provider under the Agreement shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
5. Intellectual Property Rights.
5.1 Services and Provider Materials. Except as explicitly set forth herein, all right, title and interest in and to the Services and Provider Materials, including all Intellectual Property Rights therein, are and will remain with Provider and the respective rights holders in the Third- Party Materials.
5.2 Customer Data. As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to Provider’s, its Subcontractor’s and the Provider Personnel’s use of the data solely to perform the Services.
6.1 Confidential Information. In connection with the Agreement, each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 6.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential”. Without limiting the foregoing: all Provider Materials are the Confidential Information of Provider and the terms and existence of the Agreement are the Confidential Information of each of the parties.
6.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with the Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with the Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
6.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with the Agreement;
(b) except as may be permitted by and subject to its compliance with Section 6.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with the Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 6.3; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 6.3;
(c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its sensitive information and in no event less than a reasonable degree of care; and
(d) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 6.
6.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 6.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 6.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
7. Information Security. Provider will comply with the data security requirements set forth on Exhibit A, which is attached hereto and incorporated herein by reference.
8. Term and Termination.
8.1 Term. The term of the Agreement commences as of the effective date set forth in the Agreement and shall continue for the time frame set forth in the Agreement, unless superseded or otherwise terminated by mutual written agreement of the parties or pursuant to the termination provisions hereto.
8.2 Renewal Terms. After the initial term of the Agreement, the term of the Agreement will automatically renew for subsequent one-year periods until a party provides at least 30 days written notice prior to the end of the then-current term.
8.3 Termination. In addition to any other express termination right set forth elsewhere in the Agreement:
(a) either party may terminate the Agreement, effective on written notice to the other party, if the other party breaches the Agreement (including Customer’s failure to pay any amount due under the Agreement), and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; and
(b) either party may terminate the Agreement, effective immediately upon written notice to the other party, if the other party:
(i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) 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; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) 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.
8.4 Effect of Expiration or Termination. Upon any expiration or termination of the Agreement, except as expressly otherwise provided in the Agreement:
(a) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
(b) Provider shall return to Customer, or at Customer’s written request destroy, all documents and tangible materials containing Customer Data or Customer’s Confidential Information;
(c) Customer shall immediately cease all use of any Services or Provider Materials and promptly return to Provider, or at Provider’s written request destroy, all documents and tangible materials containing any Provider Materials or Provider’s Confidential Information;
(d) Provider may immediately disable all Customer and Authorized User access to the Services and Provider Materials; and
(e) if Customer terminates the Agreement pursuant to Section 8.3(a) or Section 8.3(b), Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Provider will refund to Customer any pre-paid Fees for Services that Provider has not performed as of the effective date of termination.
8.5 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in the Agreement that, by its nature, should survive termination or expiration of the Agreement, will survive any expiration or termination of the Agreement: Section 3, Sections 5 through 15.
9. DISCLAIMER OF WARRANTIES. ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND 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. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, 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. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
10.1 Provider Indemnification. Provider shall indemnify, defend and hold harmless Customer and its officers, directors, employees, successors, and assigns (each, a “Customer Indemnitee”) from and against any and all Losses incurred by Customer arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third party (other than an Affiliate of Customer) alleging that Customer’s use of the Services (excluding Customer Data and Third-Party Materials) in compliance with the Agreement infringes a third party’s U.S. Intellectual Property Rights. The foregoing obligation does not apply to any Action or Losses to the extent arising out of or relating to any:
(a) access to or use of the Services or Provider Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by Provider;
(b) modification of the Services or Provider Materials other than: (i) by or on behalf of Provider; or (ii) with Provider’s written approval in accordance with Provider’s written specification;
(c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Provider; or
(d) matter described in Section 10.2, whether or not the same results in any Action against or Losses by any Customer Indemnitee.
10.2 Customer Indemnification. Customer shall indemnify, defend and hold harmless Provider and its officers, directors, employees, agents, successors and assigns (each, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee in connection with any Action by a third party (other than an Affiliate of a Provider Indemnitee) alleging that the Customer Data, or any Processing of Customer Data by or on behalf of Provider in accordance with the Agreement, infringes, misappropriates or constitutes the unauthorized use of a third party’s U.S. Intellectual Property Rights or personal information.
10.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 10.1 or Section 10.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 10.3 will not relieve the Indemnitor of its obligations under this Section 10 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. Neither party, as the Indemnitor, shall enter into any settlement that imposes any liability on the Indemnitee without the prior written consent of the Indemnitee to be affected by the settlement.
10.4 Mitigation. If any of the Services or Provider Materials are, or in Provider’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or Provider Materials is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Services and Provider Materials materially as contemplated by the Agreement;
(b) modify or replace the Services and Provider Materials, in whole or in part, to seek to make the Services and Provider Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Provider Materials, as applicable, under the Agreement; or
(c) If neither (a) nor (b) are commercially reasonable, terminate the Agreement with respect to all or part of the Services and Provider Materials, require Customer to immediately cease any use of the Services and Provider Materials or any specified part or feature thereof, and Provider shall provide a refund to Customer of any pre-paid Fees for Services that Provider has not performed as of the effective date of termination.
THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THE AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND PROVIDER MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
11. Limitations of Liability.
11.1 EXCLUSION OF DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 11.3, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; OR (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11.2 CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 11.3, IN NO EVENT WILL THE AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THE 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 BY CUSTOMER DURING THE PRIOR 12 MONTHS. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11.3 Exceptions. The exclusions and limitations in Section 11.1 and Section 11.2 do not apply to a party’s obligations under Section 6 (Confidentiality), Section 10 (Indemnification) or liability for party’s gross negligence or willful misconduct.
12. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of the Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, including downtime caused by a third-party hosting provider, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
13. Insurance. Provider will maintain the following (a) General Liability Insurance of One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate; (ii) Automobile Liability Insurance in an amount of One Million Dollars ($1,000,000) per occurrence combined single limit; and (iii) Technology Errors and Omissions Insurance in an amount of One Million Dollars ($1,000,000) per claim and Two Million Dollars ($2,000,000) in the aggregate.
14.1 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
14.2 Notices. All notices, requests, consents, claims, demands, waivers and other communications under the Agreement have binding legal effect only if in writing and addressed to a party as set forth in the Agreement (e.g., on the cover page), or to such other address or such other person that such party may designate from time to time in accordance with this Section 14.2. Notices sent in accordance with this Section 14.2 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or e-mail, if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the 3rd day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
14.3 Headings. The headings in the Agreement are for reference only and do not affect the interpretation of the Agreement.
14.4 Entire Agreement. The Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of the Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of the Agreement, the related exhibits, schedules, attachments and appendices and these Terms and Conditions, the following order of precedence governs: (a) first, the Agreement, excluding its exhibits, schedules, attachments and appendices; (b) second, the exhibits, schedules, attachments and appendices to the Agreement; and (c) third, any other documents incorporated into the body of the Agreement by reference, including these Terms and Conditions.
14.5 Assignment. Neither party shall assign or otherwise transfer the Agreement without the other party’s prior written consent; provided that either party may assign the Agreement in connection with a merger, or sale of all or substantially all of its assets, provided that the assignee agrees in writing to be bound by the terms of the Agreement. Any assignment in contravention of this Section 14.8 shall be null and void.
14.6 No Third-party Beneficiaries. The Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Agreement.
14.7 Amendment and Modification; Waiver. No amendment to or modification of the Agreement is effective unless it is in writing, identified as an amendment to the Agreement and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving.
14.8 Severability. If any term or provision of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the 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 hereto shall negotiate in good faith to modify the Agreement so as to effect the original intent of the parties 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.
14.9 Governing Law; Submission to Jurisdiction. The 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.
14.10 Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to the Agreement or the transactions contemplated hereby.
14.11 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, in the case of Customer, Section 3, 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 is entitled to seek 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.
14.12 Counterparts. The Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of the Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of the Agreement.
14.13 Not Construed Against Drafter. The language of the Agreement shall not be interpreted in favor of or against any Party as the drafter of the Agreement.
“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.
“Affiliate” means an entity that now or hereafter controls, is controlled by or is under common control with a specified entity, where “control” means beneficial ownership, directly or indirectly, of more than 50% of the outstanding shares or other ownership interest (representing the right to vote for the election of directors or other managing authority or the right to make the decisions for such entity, as applicable) of an entity. Such entity shall be deemed an Affiliate only so long as such control exists.
“Agreement” means the agreement entered into between Customer and Provider for the provision of the Services. All references to the Agreement are meant to include the Agreement and these Terms and Conditions unless the reference is made specifically to the body of the Agreement (which reference would be intended to exclude these Terms and Conditions).
“Authorized User” means each of the individuals authorized to use the Services pursuant to the Agreement.
“CPI” means the Consumer Price Index presently designated as the United States Department of Labor, Bureau of Labor Statistics Consumer Price Index for all Urban Consumers, U.S. City Average, All Items (1982-1984=100).
“Customer Data” means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services or that incorporates or is derived from the Processing of such information, data or content by or through the Service.
“Documentation” means any manuals, instructions or other documents or materials that Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services or Provider Systems as intended by the Agreement. Harmful Code does not include any Provider Disabling Device.
“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.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirements of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
“Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy.
“Processing” and “Processed” have correlative meanings.
“Provider Disabling Device” means any software, hardware or other technology, device or means used by Provider or its designee to disable Customer’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of Provider or its designee.
“Provider Materials” means the Service Software, Documentation and Provider Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials do not include Customer Data.
“Provider Personnel” means all individuals involved in the performance of Services as employees, agents or independent contractors of Provider or any Subcontractor.
“Provider Systems” means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Provider or through the use of third-party services.
“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors and legal advisors.
“Service Software” means the Provider software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Provider provides remote access to and use of as part of the Services.
1. Definitions. In addition to any defined terms set forth in the Agreement, with respect to this Exhibit A, the following additional defined terms shall apply:
“Authorized Persons” means Provider, Provider’s subcontractors, and their respective Representatives who have a need to know or otherwise access Customer Data to enable Provider to perform its obligations under the Agreement.
“Security Breach” means: any unauthorized or unlawful access to, acquisition of or other Processing of Customer Data.
2. Standard of Care
(a) Provider acknowledges and agrees that, in the course of its engagement by Customer, Provider may receive or have access to Customer Data. Provider shall comply with the terms and conditions set forth in the Agreement and all applicable Law in its collection, receipt, transmission, storage, disposal, use, disclosure and other Processing of such Customer Data. Provider shall be responsible for, and remain liable to Customer for, the actions and omissions of all Authorized Persons as if they were Provider’s own actions and omissions.
(b) Customer shall ensure that (i) all Customer Data has been, and will continue to be, collected and used in accordance with the notice, consent and other requirements of applicable Law and the Agreement; (ii) it has, and will continue to have, the right to transfer Customer Data to Provider for the purpose(s) set forth in the Agreement; and (iii) its instructions to Provider with respect to Customer Data are lawful and will not cause Provider to be in breach of any applicable Law nor create legal or regulatory liability on the part of Provider if such instructions are followed.
(c) As between the parties, Customer and/or any of Customer’s applicable Affiliate(s) is the sole owner of all Customer Data. For clarity, Customer Data is deemed to be Confidential Information of Customer and is not Confidential Information of Provider.
(d) In recognition of the foregoing, Provider agrees that it shall: (i) keep and maintain all Customer Data in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use, disclosure or other Processing; and (ii) not, directly or indirectly, disclose Customer Data to any person other than its Authorized Persons without express written consent of Customer.
3. Information Security
(a) Provider shall implement and maintain a written information security program that includes administrative, physical, and technical safeguards designed to protect Customer Data and Provider’s facilities, systems, networks and assets against external and internal threats. All such safeguards will comply with applicable Law and the terms and conditions of the Agreement.
(b) During the term of each Authorized Person’s work for Provider, Provider shall at all times cause such Authorized Persons to abide by Provider’s obligations under the Agreement.
4. Security Breach Procedures
In the event of a Security Breach caused by Provider’s breach of its obligations in the Agreement, Provider shall: (i) provide Customer with the name and contact information for an employee of Provider who shall serve as Customer’s primary information security contact and shall be available to assist Customer as a contact in resolving obligations associated with a Security Breach; and (ii) notify Customer of the Security Breach without undue delay.
5. Return or Destruction of Customer Data
At any time during the Term at Customer’s request for any reason or upon the termination or expiration of the Agreement, Provider shall, and shall instruct all Authorized Persons to, promptly return to Customer all copies, whether in written, electronic, or other form or media, of Customer Data in its possession or the possession of such Authorized Persons, or securely dispose of all such copies, and certify in writing to Customer that such Customer Data has been returned to Customer or disposed of securely. Provider shall comply with all reasonable directions provided by Customer with respect to the return or disposal of Customer Data.