Master Subscription Agreement General Terms and Conditions
Effective as of December 31, 2019
This Master Subscription Agreement is comprised of these General Terms and Conditions, Additional Terms of Service, when elected, and the Order Form, all of which are collectively referred to as the “Agreement” and is a legally binding agreement between SiteLink software, LLC (the “Company”) and you.
This Agreement governs your access to and use of the Services. By accepting this Agreement, either by clicking a box indicating your acceptance or by executing an order form that references this Agreement, you agree to the terms of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such legal entity and its affiliates to these terms and conditions. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use the Services.
“Bundled Services” means a combination of Services (each, a “Component“) that is licensed as a package.
“Content” means information obtained by us from our content licensors or publicly available sources and provided to you pursuant to an Order Form, as more fully described in the Documentation.
“Documentation” means our online user guides, documentation, and help and training materials, as updated from time to time, accessible via www.sitelink.com/support-help
“Facilities” means a distinct self-storage facility at a single location which contains individual Units set forth in the Order Form for which the Services relate.
“Fees” means the agreed upon fee the Services or Supplemental Services to be paid by you to us as set forth in an applicable Order Form.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses. Additionally, any file, script, program, browser plug-in, browser helper or extension, or any robot or application designed to scrape and collect data or automate the entry of data into or out of Services.
“Model Contracts” means any model contracts, forms or other agreement provided by the Company to you, for your use with your end users.
“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between you and us, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Personally Identifiable Information” means any information that can be associated with or traced to any individual, including an individual’s name, address, telephone number, e-mail address, credit card information, social security number or other similar specific factual information, regardless of the media on which such information is stored (e.g., on paper or electronically).
“Services” means any of the Company service offerings described in Section 2 (Services) below and specified in and Order Form either on a subscription basis or otherwise as stated in an Order Form. Services include Supplemental Services and/or Professional Services.
“Supplemental Services” means the non-reoccurring services that are ordered by you, for a fee such as customer specific consulting, configuration, implementation, migration, setup fees, website customization or other professional services as specified in an applicable Order Form.
“Units” means the number of separate rentable self-storage units, parking spaces, storage containers, or lockers set forth in the Order Form for which the Services relate. Units shall not include Post Office boxes or similar boxes to which mail is delivered by a mail carrier.
“User” means an individual who is authorized by you to use a Service, for whom you have ordered the Service, and to whom you have supplied a user identification and password. Users may include, for example, your employees, consultants, contractors and agents, and third parties with which you transact business.
“we,” “us” or “our” means the Company.
“you” or “your” means the company or other legal entity for which you are accepting this Agreement.
“Your Data” means electronic data and information submitted by or for you to the purchased Services or collected and processed by or for you using the purchased Services, excluding Content and Non-Salesforce.com Applications.
We offer the Services listed in Exhibit A through our proprietary software as a service platform that we host for our customers. Products may be added to this Agreement as they become available but only products subscribed to on an Order Form will be available to you. To subscribe for a Service, you must execute an Order Form for that Service. You are only entitled to use the Services for which you have subscribed and paid and your use of the Services is subject to your compliance with all terms and conditions of the Agreement. You acknowledge and agree that we reserve the right to modify the Services (or any part thereof) from time to time and that we shall not be liable to you or to any third party for any modification to the Services.
2.1.1. No Fee Customer Support. Provided you have paid all Fees payable by you for the Services under an applicable Order Form, We will use commercially reasonable efforts to provide, at no additional charge to you, technical support services to you and your Users who have subscribed to the Services.
2.1.2. No Fee Training. Provided you have paid all Fees payable by you for the Services under an applicable Order Form, We shall make available our standard training services (by way of remote, live or recorded training sessions) to your designated, named and authorized Users as well as provide tutorials which are accessible via the Marketing Websites at no additional charge.
2.1.3. Expanding the Services. From time to time we may make available on a general release basis additional service offerings. Any such additional service offering would be available on a general release basis, and should you wish to subscribe, access or use such service, such will be memorialized in a new applicable Order Form. Nothing in this Section 2.1.3 should be construed to imply or promise that additional functionality, features, products will be available. Rather, in the event that new services are made available, such Services shall be subject to these General Terms of Services and any additional terms and conditions that may specifically apply to such additional Services.
3.1 Service Fees. You shall pay the Fees for the Services in the amount set forth in the Order Form and according to the billing frequency stated in the Order Form. Service Fees shall be due and payable on the date of the invoice and must be received by us within the payment terms established in the applicable Order Form. Fees may be increased at our discretion after the initial term stated in the applicable Order Form upon notice to you.
3.2 Late Payments. You acknowledge that your failure to pay any fees or charges when due may result in suspension or termination of the Services. If you fail to pay any of the Fees in a timely manner, we will notify you and you will have a thirty (30) day cure period (the “Payment Cure Period“) in which you can bring your account up-to-date. If you fail to bring your account up-to-date (including any late fees) within the Payment Cure Period, we will terminate your access to the Services. If you fail to pay any of the Fees or charges due hereunder, the Company reserves the right to engage a collections agency to collect the fees and charges and you acknowledge and agree that you shall pay all costs incurred by us in connection with the collection of such past due amounts, including, without limitation, reasonable attorneys’ and collections agencies’ fees plus interest in an amount equal to the lesser of 1.50% per month or the maximum rate permitted by applicable law.
3.3 Taxes. You shall be responsible for all sales tax, use tax, value added taxes, withholding taxes and any other similar taxes and charge of any kind imposed by federal, state or local governmental entity on the transactions contemplated by the Agreement. When we have the legal obligation to pay or collect taxes for which you are responsible, pursuant to this Section 3, the appropriate amount shall be invoiced to and thereafter paid by you unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority before invoice is sent.
4. Your Rights and Restrictions.
4.1. Right to Access and Use the Services. Subject to the terms and conditions of the Agreement, and upon timely payment of all applicable Fees set forth in an Order Form, we hereby grant to you a non-exclusive, non-transferable, limited right to access and use (and permit your Users to use) the Services to which you have subscribed solely for your internal business purposes.
4.2. Authorized Users. You may designate and authorize as many Users as you wish under the Agreement. You (i) are responsible for your Users’ compliance with the Agreement, and (ii) shall use commercially reasonable efforts to
prevent unauthorized access to or use of the Services and shall notify us immediately of any such unauthorized access or use. It is your responsibility to remove access to the Services if authorized status of a User or designated employee changes.
4.3. Your Responsibilities and Restrictions. You are responsible for all activities that occur under your use of the Services and the use by your Users. You shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all data and content that you submit for your use of the Services; (ii) use commercially reasonable efforts to prevent unauthorized control or tampering or any other unauthorized access to, or use of, the Services and notify us promptly of any unauthorized use or security breach; (iii) comply with all applicable local, state, federal, and foreign laws (including laws regarding privacy and protection of personal or consumer information) in using the Services; (iv) to the extent applicable, comply with all applicable rules of credit card associations (including American Express, MasterCard and Visa); and (v) obtain and maintain all computer hardware, software and communications equipment needed to access the Services and pay all access charges (e.g., ISP fees) incurred by you in connection with your use of the Services. You may not, and you shall ensure your Users do not, (i) disassemble, reverse engineer, decompile or otherwise attempt to decipher any code in connection with the Services, or modify, adapt, create derivate works based upon, or translate the Services; (ii) license, sublicense, sell, rent , assign, distribute, time share transfer, lease, loan, resell, distribute or otherwise commercially exploit, grant rights in or make the Services available to any third party; (iii) use the Services except as expressly authorized hereunder or in violation of any applicable laws; (iv) engage in any illegal or deceptive trade practices with respect to the Services;
(v) circumvent or disable any security or other technical features or measures of the Services or any other aspect of
the Software or, in any manner, attempt to gain or attain unauthorized access to the Services or its related computer systems or networks; (vi) use the Services to transmit infringing, libelous, obscene, threatening, Malicious Code, or otherwise unlawful, unsafe, abusive or tortious material, or to store or transmit material in violation of third-party privacy rights; (vii) use the Service to store or transmit any Malicious Code or unsolicited messages in violation of applicable laws; or (viii) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein.
4.4. Reservation of Rights. No other rights are granted except as expressly set forth in the Agreement. The Agreement is not a sale and does not convey any rights or ownership in, or to, the Services or any underlying software. We own all right, title, and interest, including all intellectual property rights, in and to the Services and the underlying software and any and all updates, upgrades, modifications, enhancements, Content, improvements or derivative works thereof, and in any idea, know-how, and programs developed by us or our licensors during the course of performance of the Services.
4.5. Data Exchange Interface (“DEI”) Rights. The Company provides an advanced DEI exclusively for customer internal use. Any use by a third party, affiliate, agent of customer, or any use to develop a commercial product, requires a separate third-party DEI agreement, which will expressly memorialize the rights and uses thereunder.
4.6. Our Use of Anonymous Data. You agree that the Company may use the data generated by and stored on our servers anonymously, for our own internal business purposes, including but not limited to the development of anonymous marketing and sales collateral materials, statistical analysis of data regarding rental rates, unit availability, traffic sources, vacancy, and other relevant data to construct yield optimization models, and publication solely in an aggregated form of operating data in industry benchmark reports. You shall at all times retain ownership of your data.
5. Term and Termination.
5.1. Term. The term of the Services varies depending on the Services subscribed to or obtained and shall be set forth on the Order Form.
5.2. Notification of Non-Renewal. Written notice of non-renewal by you must be submitted to the Company at the address in the preamble.
5.3. Termination for Cause. Either party may terminate the Agreement and all Services under an existing Order Form (i) if the other party breaches any of its material obligations under the Agreement and such breach is not cured within thirty (30) days of receipt of notice from the non-breaching party or (ii) if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business. We may terminate the Agreement immediately in the event of a breach of Section 4.3 (Your Responsibilities and Restrictions) above.
5.4. Termination for Convenience. You may terminate the Agreement, all the Services, or any individual Component of a Services Bundle, at any time for any reason, upon fifteen (15) days’ written notice to the Company.
5.5. Effect of Termination. Upon a termination of the Agreement or any Service, you will immediately discontinue use of the applicable Services, cease to represent in any form that you are a user of the terminated Services, and destroy all our Confidential Information in your possession. Neither party shall be liable for any damages resulting from a
termination of the Agreement or any subscriptions to Services as provided for herein; provided, however, that the termination of the Agreement shall not affect any claim arising prior to such termination.
5.6. Handling of Your Data in the Event of Termination. You acknowledge and agree that following expiration or termination of any of your subscriptions to the Services, we may immediately deactivate all affected and related Services and that we shall have no obligation to continue to store your data during any period of suspension or termination or to permit you to retrieve such data. You further agree that we shall not be liable to you or to any third party for any termination of your access to the Services or deletion of your data pursuant to this Agreement. Following the termination of your right to use the Services for any reason other than termination for cause by us, you shall be entitled to take advantage of any post-termination assistance we may generally make available with respect to the Services, such as data retrieval arrangements we may elect to make available. We may also endeavor to provide you with unique post-suspension or post-termination assistance, but we shall be under no obligation to do so.
5.7. Exemption from Return of Data. Notwithstanding anything to the contrary in this Section 5. (Term and Termination) the Company shall not be required to return to customer or destroy those copies of the customer data or customer Confidential Information which copies were created pursuant to our automatic archiving and backup procedures and the removal of which is not technically reasonable.
6. Downtime and Service Suspensions.
In addition to our rights to terminate or suspend our Services (each, a “Service Suspension“) to you, you acknowledge that: (i) your access to and use of the Services may be suspended for the duration of any unanticipated, unscheduled, or scheduled downtime or unavailability of any portion or all of the Services for any reason; and (ii) we shall also be entitled, without any liability to you or related third parties, to suspend access to any portion of the Services at any time. Without limitation, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that may occur as a result of any Service Suspension. To the extent we are able, we will endeavor to provide you email notice of any Service Suspension and to post updates on our bulletin board regarding resumption of the Services following any such Service Suspension, but we shall have no liability for the manner in which we may do so or if we fail to do so.
7. Representations and Warranties.
7.1. Mutual Representations and Warranties. Each party hereby represents and warrants to the other party that (i) it has all necessary authority to enter into and perform its obligations under the Agreement without the consent of any third party or breach of any contract or agreement with any third party, (ii) all persons performing any obligations hereunder have entered into all necessary agreements in order for it to comply with the terms and conditions of the Agreement, and (iii) it shall comply in all material respects with all laws applicable to the Services.
7.2. Disclaimer of Warranties.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 7, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE, AS TO ANY MATTER, INCLUDING THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SERVICES WILL MEET ALL OF YOUR REQUIREMENTS, INCLUDING ACCOUNTING REQUIREMENTS, OR THAT THE USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” BASIS AND YOUR USE OF SERVICES IS AT YOUR OWN RISK, INCLUDING, WITHOUT LIMITATION, COMPLIANCE WITH ANY LAWS OR REGULATIONS RELATED TO PROPERTY MANAGEMENT. THE PARTIES EXPRESSLY ACKNOWLEDGE THAT THE DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT. WE SHALL HAVE NO OBLIGATION OR OTHER LIABILITY WITH REGARD TO ANY ERROR OR NON-COMPLIANCE WITH A WARRANTY THAT IS CAUSED BY YOUR BREACH OF THIS AGREEMENT.
WE DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS. THIS DISCLAIMER APPLIES TO BUT IS NOT LIMITED TO ANY FEDERAL OR STATE STATUTES OR REGULATIONS THAT MAY BE APPLICABLE TO YOU. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE SERVICES IS IN ACCORDANCE WITH APPLICABLE LAW.
IF YOU ARE DISSATISFIED WITH THE SERVICES OR THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES.
8.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes your Data; our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 8.2.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9.1. Indemnification for Infringement. Subject to Section 9.4, we shall, at our expense, defend you against any third party claim brought against you which alleges that the Services infringe any US patent issued to a third party as of the Effective Date or infringe any copyright, trademark or trade secret of any third party (collectively referred to as the “Infringing Item“). In the event an injunction is sought or obtained against use of the Infringing Item or in our opinion is likely to be sought or obtained, we shall, at our option and expense, either (i) procure for you and your named Users the right to continue to use the Services, or (ii) replace or modify the Services to make their use non-infringing while being capable of substantially performing the same function. In the event subsections (i) and (ii) above are not commercially practicable, we may terminate the Services and refund any prepaid, but unused Service Fees. We shall not be obligated to defend or be liable for any costs or damages under this Section 9.1 if the alleged infringement arises out of or is in any manner attributable to (i) any unauthorized modification of any Services by you (or any of your Users) or (ii) use of Services in combination with services and products not provided or authorized by the Company if such infringement would have been avoided without such modification or combination or (iii) compliance with your designs or instructions or (iv) a claim that does not state with specificity that the Services are the subject of the claim (each an “Excluded Claim“).
9.2. Indemnification for Data Security and Privacy. Subject to Section 9.4, and during the term of your subscription to the Services, we shall, at our expense, defend you against any third party claim brought against you which allege our gross negligence in preventing unauthorized access to, or our willful misconduct in disclosing, Personally Identifiable Information of your customers in our possession or control. This indemnity will not apply to the extent that such claim, arises from or relates to your negligence or willful misconduct or that of your agents or representatives, or to the extent liability is disclaimed or limited by either party under the Agreement. The indemnity obligations set forth in this section are contingent upon your proving our gross negligence or willful misconduct has directly and proximately resulted in the unauthorized access to or disclosure of Personally Identifiable Information of your customers in our possession or control.
9.3. Your Indemnification. You agree to indemnify, hold harmless, and defend us and all our employees, officers, directors and agents from any and all claims, demands, suits, proceedings, investigations, damages, costs, expenses, losses, and any other liabilities (including reasonable attorneys’ fees, court costs and expenses) arising out of or relating to (i) your use of the Services, (ii) an Excluded Claim, (iii) any content provided by you, (iv) any actual or alleged breach by you of any representation, warranty, covenant or obligation under the Agreement, (v) your use of the Model Contracts; or (vi) your gross negligence or willful misconduct. Your indemnification obligations under this Section 9.3 shall survive any termination or expiration of the Agreement.
9.4. Notification and Cooperation. The indemnifying party’s obligations to the indemnified party under this Section 9 above are conditioned upon (i) indemnified party notifying indemnifying party promptly in writing within 30 days, upon knowledge of any claim, for which it may be entitled to indemnification under the Agreement; (ii) to the extent applicable, indemnified party ceasing use of the claimed infringing Services upon receipt of notice of same; (iii) indemnified party permitting indemnifying party to have the sole right to control the defense and settlement of any such claim (provided that indemnifying party may not settle any claim without the indemnified party’s consent unless the settlement unconditionally releases indemnified party from all liability); (iv) indemnified party providing reasonable assistance to indemnifying party, at indemnifying party’s expense, in the defense of such claim; (v) indemnified party not entering into any settlement agreement or otherwise settling any such claim without indemnifying party’s express prior written consent or request; and (vi) indemnified party complying with any settlement or court order made in connection with the claim (related to the future use of any infringing materials). Indemnified party may participate in the defense or settlement of a claim with counsel of its own choice and at its own expense.
9.5. Exclusive Remedy. This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
10. Limitation on Liability.
10.1 EXCEPT WITH RESPECT TO DAMAGES ARISING IN CONNECTION WITH A BREACH OF SECTION 4.3 (YOUR RESPONSIBILITIES AND RESTRICTIONS) OR 11 (PERSONAL INFORMATION AND PRIVACY STATEMENT), TO THE MAXIUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT EXCEED THE SUM OF THE AMOUNTS PAID BY YOU FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE ONE YEAR PERIOD IMMEDIATELY PRECEEDING THE DATE THE CAUSE OF ACTION AROSE.
10.2. EXCEPT WITH RESPECT TO DAMAGES ARISING IN CONNECTION WITH A BREACH OF SECTION 4.3 OR 11, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY HERETO, ITS LICENSORS OR SUPPLIERS, HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), ARISING OUT OF THE AGREEMENT, THE PERFORMANCE OR NONPERFORMANCE BY EITHER PARTY OF ITS OBLIGATIONS HEREUNDER, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU, IN WHICH CASE OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
11. Personal Information and Privacy Statement.
You will comply with all applicable privacy and other laws, rules, regulations and guidelines relating to protection, collection, use and distribution of Personally Identifiable Information of any person. You will post a privacy statement on the page where you collect Personally Identifiable Information (“Privacy Statement“) that complies with all applicable laws, rules, regulations and guidelines and, at a minimum, notifies users of the Personally Identifiable Information collected, how it will be used and how it will be secured and identifies the collection (via cookies, web beacons and other applicable means) and use of information gathered in connection with the Services and obtains prior informed consent (opt-in) before utilizing any tracking technologies, to the extent required by applicable laws and regulations. Such Privacy Statement shall also include technical information related to collection, transmission and storage of Personally Identifiable Information provided by us through the Services. If required by applicable data protection legislation or other law or regulation, you will inform third parties that you are providing their Personally Identifiable Information to us for processing and will ensure that any required third parties have given their consent to such disclosure and processing. You agree to comply with the descriptions and provisions of the Privacy Statement.
12.1. Model Contracts. The Model Contracts are provided for informational purposes only and should not be relied on as legal advice. Nothing herein constitutes the establishment of an attorney-client relationship between you and the Company or anyone involved in the drafting of the Model Contracts. The Company makes no claims, promises, or guarantees about the accuracy, completeness, or adequacy of anything contained in the Model Contracts. If you use the Model Contracts, you should seek the advice of legal counsel to develop a contract that meets your specific needs. As state and local laws may differ, any legal questions should be referred to appropriate legal counsel. By utilizing the Model Contracts, you: (i) assume full responsibility for any loss, damage, or liability resulting from the use of the Model Contracts; and (ii) release the Company and the authors of the Model Contracts, their contributors, agents, licensees, successors and assigns from any and all known or unknown claims, demands or causes of action that may arise, at any time, out of or relating to your use of any of the Model Contracts.
12.2. Independent Parties. You and the Company are independent contractors. The Agreement does not create any joint venture, partnership, agency or employment relationship between the parties. You shall be solely responsible for managing your employees and for any and all compensation, taxes, benefits and liabilities to your employees and any of your other representatives or service providers. Neither you nor any of your employees, representatives, or service providers shall make any representations, warranties or guarantees with respect to us, the Agreement or the Services other than as expressly authorized by us in writing.
12.3. Assignment. Neither the Agreement nor any of your rights or obligations under the Agreement may be assigned or transferred, by operation of law or otherwise, without our prior written consent, unless assigned to a successor in interest, or pursuant to a merger, corporate reorganization, or a sale or transfer of all or substantially all of your assets of which you provide us notice at least thirty (30) days prior to the consummation of the transaction and such transaction does not involve a competitor of the Company. You and the Company will negotiate the cost of this assignment upon the notification of the change. An assignment by you based on any other circumstances requires our prior consent, which consent shall not be unreasonably withheld. We may freely assign this Agreement without your consent provided that the Services continue to operate as outlined in this Agreement. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.4. Force Majeure. Neither party will be responsible for any delay, interruption or other failure to perform under the Agreement due to acts beyond the control of the responsible party, but only for so long as such conditions persist. Force majeure events include, but are not limited to: natural disasters (e.g. lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities, and civil commotions; a local exchange carrier’s activities, and other acts of third parties; explosions and fires; embargoes, strikes, and labor disputes; governmental decrees; failures of telecommunications providers or internet service providers; failures of third party suppliers, service providers or vendors; and any other cause beyond the reasonable control of a party.
12.5. Choice of Law. The Agreement and any dispute arising out of or in connection with the Agreement shall be governed by and construed under the laws of the State of Texas, without regard to the principles of conflict of laws. All disputes arising out of or related to the Agreement shall be subject to the exclusive jurisdiction and venue of the Texas state and federal courts, and the parties consent to the personal and exclusive jurisdiction of these courts.
12.6.E-mail and Notices. You further agree that we may provide any and all notices, statements and other communications to you through either e-mail, mail, express delivery service, or delivered by a recognized commercial carrier addressed to the address last designated on the Agreement. You are responsible for providing us with any updated contact information.
12.7. No Waiver; Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.
12.9. Entire Agreement. To the maximum extent permitted by applicable law, this Agreement, together with the documents referenced herein and all Order Forms constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into this Agreement (unless such untrue statement was made fraudulently) and that party’s only remedy in respect of any untrue statement shall be for breach of contract as provided in this Agreement. You acknowledge and agree that Your agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or in an Order Form or dependent upon any oral or
written, public or private comments made by Us with respect to future functionality or features for the Services. In the event of any conflict between the provisions in these General Terms of Service and any Order Form or Additional Terms of Service, the terms of this Master Service Agreement shall prevail, to the extent of such conflict. No terms or conditions stated in Your purchase order or in any other of Your order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
12.10. Export. Both parties agree to comply with applicable US export and import laws and regulations. You shall not permit your Users to access or use the Services in violation of any U.S. export embargo, prohibition or restriction.
12.11. Publicity. We reserve the right to name you as a user of Our Services on Our marketing and promotional materials unless you opt out of such disclosure on an applicable Order Form.
12.12. Links to Third-Party Sites. The Services or our website may include links to third party sites (“Linked Sites“). The Linked Sites are not under our control and we are not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site or the Services provided via a Linked Site. We are providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by us of the site or any associated services provided by the site.
12.13. Enhancement Requests. We may, but have no obligation to, consider your suggestions or requests regarding new functionality or features of the Services (“Enhancement Requests“). All modifications proposed or requested in an Enhancement Request shall be our sole and exclusive property. We may, in our sole discretion, include such modifications in a future version of the Services, but our acceptance and consideration of an Enhancement Request shall not obligate us to include in any version of the Services any modifications proposed or requested in such Enhancement Request.
12.14. Trademarks. You acknowledge and agree that this Agreement does not convey to you any right, title, or interest in or to any of our trademarks or trade names. You shall not use or attempt to register any of our trademarks or trade names or any trademarks or trade names that are confusing similar to them.
12.15. Conflicts. In the event of any conflict between these General Terms and Conditions and any other component of the Agreement, these General Terms and Conditions will take precedence with regard to your rights and obligations with respect to the Services.
EXHIBIT A – SERVICES & SUPPLEMENTAL SERVICES
- The Order Form that you have executed identifies (a) the Fees payable by you to the Company for the specific Services (Bundled or Supplemental) purchased, (b) the term of your Services, and (c) the payment terms of the Fees payable by you to the Company.