In consideration of payment of the fees and marketing obligations listed herein and on the applicable Order Form (the “Fees”), Service Provider will use reasonable commercial efforts to provide Customer the Services selected in the Order Form in accordance with the applicable General Service Level Support Terms in Exhibit A. Customer is responsible for providing to Service Provider a list of users to add to Customer’s account (the “Account”).
2.1 Service Provider grants to Customer, for the term of this Agreement, a non-exclusive, non-sublicensable, non-transferable, royalty free license to use, reproduce and distribute internally within Customer’s business, and for Customer’s internal use only, the documentation and data provided to Customer from its use of the Service (the “Output”). Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services (or any underlying software, documentation or data related to the Services); modify, translate, or create derivative works based on the Services or any underlying software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any underlying software; use the Services or any underlying software for timesharing or service bureau purposes or otherwise for the benefit of a third party; publish the Output without the prior written consent of Service Provider; or remove any proprietary notices or labels. Service Provider retains all right, title, interest (including, but not limited, to intellectual property rights) in and to the Services and anything developed and delivered under this Agreement. Nothing in this Agreement shall be construed as granting Customer any right, title or interest in or to the Services; Service Provider owns and retains all right, title and interest in and to the Services and software underlying the Services, and all improvements or modifications thereto (including those based on suggestions, recommendations or other feedback from Customer, all of which shall be owned by Service Provider) and all intellectual property rights related to any of the foregoing. Customer may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the U.S. Department of Commerce, the U.S. Department of Treasury Office of Foreign Assets Control, or any other U.S. or foreign agency.
2.2 Customer will use the Services in compliance with the terms of this Agreement. Customer is responsible for obtaining and maintaining any equipment and ancillary services needed to access or use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). Customer shall ensure that such Equipment is compatible with the Services. Customer is responsible for maintaining the security of the Equipment, the Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Account or the Equipment.
2.3 Customer represents that Customer has the authority to enter into and comply with this Agreement and that the terms of this Agreement, including but not limited to the requirement to share certain information and data with Service Provider regarding Customer’s employees (“Customer Data”), does not violate any obligation or duty to which Customer is bound, whether arising out of contract, operation of law, or otherwise.
2.4 Service Provider may (i) use Customer logo and name in self-promotional materials including advertisements, press releases, etc. and upon approval by Customer, (ii) publish a case study on its website regarding Customer’s use of the Services. Customer may be asked to provide a mutually agreeable quote with respect to Service Provider and the Services, to be used for Service Provider’s publicity purposes.
3.1 Each party (“Recipient”) understands that the other party (“Discloser”) has disclosed or may disclose information relating to Discloser’s business (hereinafter referred to as “Proprietary Information” of Discloser). However, nothing (except Customer Data and the software and algorithms underlying the Services and the information embodied therein) will be considered “Proprietary Information” of Discloser unless it is or was disclosed in tangible or written form and is marked “Confidential”, “Proprietary” (or the like) at the time of disclosure or it is identified as confidential or proprietary at the time of disclosure and is delivered in the appropriately marked form within 30 days of disclosure.
3.2 Recipient agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. Discloser agrees that the foregoing shall not apply with respect to any information after 3 years following the disclosure thereof (except the Services and underlying software, algorithms and information embodied therein which shall remain confidential indefinitely) or any information that (a) is or becomes available to the public, (b) was in its possession without restriction on disclosure prior to receipt from Discloser, (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of any Proprietary Information of Discloser, or (e) is required by law to be disclosed.
3.3 As part of the Services, Service Provider shall have the right to utilize data submitted to, collected by, or generated by Service Provider in connection with Customer’s use of the Services, but only in de-identified form, from which individual identifiers have been removed, and aggregated form, such that it can in no way be linked specifically to Customer or Customer’s employees (“Aggregated and De-Identified Data”). Customer acknowledges and agrees that (i) Service Provider may internally use and modify (but not disclose) Customer Data for the purposes of generating Aggregated and De-Identified Data and (ii) Service Provider may freely use, make available and retain Aggregated and De-Identified Data for Service Provider’s business purposes (including, without limitation, for purposes of improving, testing, operating, benchmarking, developing, promoting, and marketing the Services and Service Provider’s offerings).
Customer will pay Service Provider the Fees for the Services as listed on the applicable Order Form. Service Provider reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term (as defined below) or the then-current Renewal Term (as defined below), upon 30 days’ prior notice to Customer (which may be sent by email). All Fees paid under this Agreement are nonrefundable. If Customer believes that Service Provider has billed Customer incorrectly, Customer must contact Service Provider no later than 60 days after the invoice in which the error appeared, in order to receive an adjustment or credit. Service Provider shall respond to Customer within 5 days after receiving such inquires. Payment for invoices issued in any given month is due 30 days after receipt of the invoice, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer is responsible for all taxes associated with Services, including all applicable sales taxes that Service Provider may be required to collect on Customer’s behalf, provided Customer shall have no liability for U.S. taxes based on Service Provider’s net income.
5.1 Subject to termination as provided below, the initial term is as specified in the applicable Order Form (the “Initial Service Term”), and shall be automatically renewed for additional terms (each, a “Renewal Term” and with the Initial Service Term, the “Term”) for a minimum of 12 months. At least 60 days prior to the commencement of a Renewal Term, Service Provider shall notify Customer of their upcoming pricing tier (determined based on the number of Customer’s latest headcount being analyzed by Service Provider). Discounts, programs, and promotions will not continue beyond the Initial Service Term. Either party may terminate this Agreement at least 30 days prior to the end of the then current Term.
5.2 Either party may terminate this Agreement upon 10 days’ notice if the other party materially breaches this Agreement, and if the breach is capable of remedy, fails to remedy that breach within 10 days of notice. If this Agreement is terminated as a result of a material breach by Customer during the Initial Service Term, Customer shall pay in full all remaining Fees payable through the remainder of the Initial Service Term. If this Agreement is terminated as a result of a material breach by Customer during a Renewal Term, Customer shall pay in full for the Services up to the last day on which the Services are provided. Termination (which includes expiration or non-renewal) of this Agreement shall not limit either party from pursuing other remedies available to it, nor shall termination relieve Customer of its obligation to pay all Fees that have accrued or are otherwise owed by Customer under any Order Form. Sections 2-4 and 6 and 7 survive termination of this Agreement.
6.1 Service Provider does not warrant that the Services will be uninterrupted or error free or meet Customer’s requirements; nor does it make any warranty as to the results that may be obtained from use of the Services. The Services are provided “as is” and except to the extent prohibited by law, Service Provider disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement. Customer acknowledges that Service Provider does not control the transfer of data over communications facilities, including the internet, and that the Services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. Service Provider is not responsible for any delays, delivery failures, or other damage resulting from such problems.
6.2 Except for bodily injury, neither party is responsible or liable with respect to any subject matter of this Agreement (including the order form) under any contract, negligence, strict liability or other legal or equitable theory for: (a) any error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology, or any loss of business, any loss of revenue or profits; (b) any indirect, exemplary, incidental, punitive, special or consequential damages; (c) any matter beyond a party’s reasonable control; or (d) any amounts that, together with amounts associated with all other claims, exceed the Fees actually paid by Customer to Service Provider in the 6 months prior to the act that gave rise to the liability, even if the party has been advised of the possibility of the foregoing types of losses or damages. If applicable law limits the application of the provisions of this Section 6.2, a party’s liability will be limited to the maximum extent permissible.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except (a) with Service Provider’s prior written consent or (b) if in connection with a sale transaction to a third party that is not a competitor of the Service Provider. Both parties agree that the Order Form and this Agreement, including all exhibits, is the exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties. In any action under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service. The parties agree that any material breach of Section 2 or 3 of this Agreement will cause irreparable injury and that injunctive relief will be appropriate, in addition to any other relief to which the aggrieved party is entitled. This Agreement is governed by the laws of New York without regard to its conflict of laws provisions. Any action arising from this Agreement must be brought in a federal or state court in New York City, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.