zLifecycle Software as a Service Agreement

This zLifecycle Software as a Service Agreement, including the Order Form which by this reference is incorporated herein (this “Agreement“), is a binding agreement between zLifecycle Inc., a Delaware company with offices located at 110 Briarwood Ln, Plainview-11803, New York (“Provider”) and the person or entity to whom access to one or more Services is provisioned (“Customer“). Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”  

PROVIDER PROVIDES THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY ACCESSING THE SERVICES CUSTOMER (A) ACCEPTS THIS AGREEMENT AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT: (I) CUSTOMER IS 18 YEARS OF AGE OR OLDER AND/OR OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF CUSTOMER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, PROVIDER WILL NOT AND DOES NOT PROVIDE CUSTOMER WITH PERMISSION TO ACCESS OR USE THE SERVICES AND CUSTOMER MUST NOT ACCESS OR USE THE SERVICES.  

WHEREAS, Customer desires the Services to be used to manage Customer’s environment and/or Customer’s applications and Provider desires to make the Services available for use in accordance with this Agreement;

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

  1. Definitions.
  2. Authorized User” means Customer, Customer’s employees, and any Customer contractors specifically identified in the applicable Order Form, who are authorized to access and use the Services under the rights granted to Customer pursuant to this Agreement.  
  3. Customer Data” means, other than Service Statistics, information, data, and other content, in any form or medium, that is located within Customer’s environment or applications and/or is submitted, posted, or otherwise transmitted by or on behalf of Customer or Authorized Users through the Services. 
  4. Documentation” means Provider’s user manuals, handbooks, and guides relating to the Services as may be updated from time to time and provided by Provider to Customer and identified as documentation.
  5. Effective Date” means the date that Customer accepts this Agreement as indicated above.  
  6. Losses” means losses, damages, liabilities, costs, and expenses, including, without limitation, reasonable attorneys’ fees.
  7. Order Form” means the order form submitted by or on behalf of Customer, and accepted by Provider, for provisioning of paid access to the Services by Customer under the terms and conditions of this  Agreement.
  8. Provider IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Service Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.
  9. Service(s)” means Provider’s hosted environment lifecycle management and/or application lifecycle management products as further described in the Documentation and the Order Form.  
  10. Service Statistics” means data and information related to use of the Service that does not include any information that can reasonably be used to identify any particular individual.
  11.  “Third-Party Products” means any third-party products, software, data, or other materials provided with or incorporated into the Services.
  12. Use of the Services. 
  13. Provision of Access. Subject to and conditioned on Customer’s payment of Fees and Customer’s and Authorized Users’ compliance with all other terms and conditions of this Agreement, Provider will host and make the Services available for use by Authorized Users and in Customer’s environment and/or with Customer’s applications as further described in the Documentation.  All rights to receive the Services granted to Customer in this Agreement are limited, personal, non-exclusive, non-transferable (except in compliance with Section 12(i)), and non-sublicensable and are limited to use by Authorized Users for Customer’s internal business operations.  For the avoidance of doubt, the Service is available only on a hosted basis, and Customer will not independently possess, run, or install the Service.  Rather, Customer may access the Services to input certain specifications and other information regarding actions to be taken through the Services and to view dashboards, reports, and other information regarding actions performed by the Services.  
  14. Use Restrictions. Customer shall not at any time, and shall not permit any Authorized User to, directly or indirectly: (i) copy, modify, or create derivative works of the Provider IP, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Provider IP to any third party; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Provider IP, in whole or in part; (iv) remove any copyright or other proprietary notices from the Services or Documentation; (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) input, upload, transmit, or otherwise provide to or through the Services, any information or materials that are unlawful or injurious, or contain, transmit, or activate any virus, worm, malware, or other malicious computer code; or (vii) use the Services or Documentation for purposes of competitive analysis or the development, provision, or use of a competing software, service, and/or product or for any other purpose that is to the Provider’s detriment or commercial disadvantage.    
  15. Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement.  Except for the limited rights expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
  16. Modification of the Services.  Provider reserves the right, at any time, to modify features and functionalities of the Services and Support without notice to or prior approval from Customer, provided that such modification does not materially diminish the overall Services provided as of the Effective Date of this Agreement.
  17. Service Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may collect and compile Service Statistics. As between Provider and Customer, all right, title, and interest in Service Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges and agrees that Provider may use Service Statistics to the extent and in the manner not prohibited by applicable law. 
  18. Third-Party Products. Provider may from time to time make Third-Party Products available through the Services. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow-through provisions. 
  19. Free Trials.   If Customer registers for, and Provider agrees to provide a free trial, proof of concept, or evaluation, Provider will make the applicable Service(s) available to Customer on a trial basis free of charge for the term described in this Section (“Free Trial”).  The term of each Free Trial shall extend until the earlier of (x) the period of access granted in respect of such Free Trial expires, (y) the start date of any Services subscriptions ordered by Customer pursuant to an Order Form, or (z) termination by Provider in Provider’s sole discretion.  The Free Trial shall be subject to the terms of this Agreement except for Sections 4, 5, 8(b), and 11(a) and any other term by which Provider provides any assurances regarding the quality or performance of the Services, which are provided “as is”, “as available”, with all faults, and without any representations or warranties, express or implied, during the Free Trial.  Without limiting the foregoing, Customer acknowledges and agrees that (a) the Free Trial may have limited features and performance, (b) Provider shall have no liability whatsoever for or related to the Free Trial, and (c) the Free Trial shall only be used for the purpose of determining whether to purchase access to the Services.
  20. Customer Responsibilities.   Customer has and will retain sole responsibility for: (i) all Customer Data, including its content and use; (ii) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (iii) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services; (iv) the security and use of Customer’s and its Authorized Users’ access credentials; (v) all conclusions, decisions, and actions based on use of the Services; and (vi) providing access credentials and all other requested rights and permissions to access Customer’s environment or applications for use of the Services.  Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.  Provider shall have no liability for the foregoing Customer responsibilities and any related activities.  
  21. Support.  Subject to the terms and conditions of this Agreement, if purchased under the Order Form, Provider shall use commercially reasonable efforts to make the Services available and provide support during the Term in accordance with the service level agreement attached to the Order Form .  
  22. Fees and Payment. 
  23. Purchases.  If Customer wishes to purchase access to the Services (“Purchase”), Customer may be asked to supply certain information relevant to the Purchase including, without limitation, credit card number, the expiration date of the credit card, and Customer billing address.  Customer represents and warrants that: (i) Customer has the legal right to use any credit card(s) or other payment method(s) in connection with any Purchase; and that (ii) the information Customer supplies is true, correct and complete.   Provider may employ the use of third party services for the purpose of facilitating payment and the completion of Purchases.  By submitting Purchase information, Customer grants Provider the right to provide the information to such third parties subject to our Privacy Policy.  Provider reserves the right to refuse or cancel any order at any time for any reason, including, without limitation, fraud or an unauthorized or illegal transaction is suspected.  
  24. Fees. Customer shall pay Provider the fees (“Fees“) as set forth in the Order Form without offset or deduction within fifteen (15) days from the date of the invoice.  Customer shall make all payments hereunder in US dollars on or before the due date set forth in the Order Form. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies, Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law.  Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.
  25. Billing.  The Service is billed on a subscription basis (“Subscription(s)”).  Customer will be billed in advance on a recurring and periodic basis (“Billing Cycle”). Billing cycles are set either on a monthly or annual basis, depending on the type of subscription plan selected when purchasing a Subscription.  By submitting payment information, Customer automatically authorizes Provider and/or Provider’s payment processor to charge all Subscription fees incurred through Customer’s account to any such payment instruments.  Alternatively, Provider and/or Provider’s payment processor may issue an electronic invoice indicating that Customer must proceed manually, within a certain deadline date, with the full payment corresponding to the billing period as indicated on the invoice.
  26. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
  27. Fee Increases. Provider may increase Fees for any Renewal Term by providing written notice to Customer at least thirty (30) calendar days prior to the beginning of the Renewal Term, and the applicable Order Form will be deemed amended accordingly.
  28. Additional Features.  Provider may add new features and/or functionalities (“Updates”) to the Services at its sole discretion.  To the extent that Provider makes Updates available to similarly situated commercial customers at no additional cost, Provider will make such updates available to Customer at no additional cost.  Provider reserves the right to charge additional fees at any time in its sole discretion for Updates that it does not make available to similarly situated commercial customers at no additional cost, contain substantial new functionality, and/or Provider licenses separately. No change in pricing will go into effect without the prior written consent of Customer. If Customer does not consent to paying additional fees for new Updates, Customer may not receive the benefit of such features and/or functionalities through the Services.  
  29. Confidential Information. 
  30. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information“).  Without limiting the foregoing, Provider’s Confidential Information includes the Documentation, Service, and other Provider IP.  Confidential Information does not include information that, at the time of disclosure is: (i) in the public domain; (ii) known to the receiving Party at the time of disclosure; (iii) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (iv) independently developed by the receiving Party. 
  31. The receiving Party shall treat the Confidential Information as it does its own valuable and sensitive information of a similar nature and, in any event, with not less than a reasonable degree of care.  The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. 
  32. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies.  Upon Provider’s request, Customer shall certify in writing that all Provider Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
  33. Customer agrees that it will not submit or make available the following types of information to the Service: government-issued identification numbers, consumer financial account information,      consumer credit and payment card information, personal health information, information deemed “sensitive” under applicable law (such as racial or ethnic origin, political opinions, or religious or philosophical beliefs),       or any other information that is subject to any national or international privacy, cybersecurity, or similar law, rule, or regulation.  Provider shall have no liability for any information provided in breach of this Section.  
  34. By accessing the Service, Customer acknowledges and agrees that it has reviewed and accepts Provider’s Privacy Policy, as may be updated from time to time, located at https://zlifecycle.com/resources/privacy-policy.  
  35. Intellectual Property Ownership; Feedback. 
  36. Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products. 
  37. Customer Data. Provider acknowledges that, as between Provider and Customer, Customer is solely responsible and liable for and owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer.  Customer is solely responsible for maintaining regular data backups, redundant data archives, and other copies of its environment and applications.  Provider has no obligation or liability for any loss, alteration, destruction, damage, corruption, or recovery of Customer Data or any action taken within Customer’s environment or applications related to or in reliance on Customer’s instructions.  
  38. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback“), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
  39. Limited Warranty and Warranty Disclaimer. 
  40. Each party represents and warrants to the other party that (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; and (ii) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement.  
  41. Provider warrants that the Services will substantially conform in all material respects to the Documentation at the time of performance and when operated and used as recommended in the Documentation and in accordance with this Agreement. Customer’s sole and exclusive remedy for any breach of the limited warranty set forth herein shall be to notify Provider of the specific non-conformity, in which case, Provider shall use commercially reasonable efforts to correct such non-conformity and make the corrected Services available to Customer. Notwithstanding any provisions to the contrary in this Agreement, the limited warranty set forth herein does not apply to issues arising out of or relating to Customer’s or any third party’s negligence, abuse, misapplication, or misuse of the Services, including any use of the Services other than as specified in the Documentation.  THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
  42. Customer represents, warrants, and covenants that: (i) Customer’s use of the Services shall comply with all applicable laws, rules, and regulations; and (ii) Customer has and will have all necessary rights in and relating to the Customer Data and Customer environment and applications, including, without limitation, all necessary rights and permissions for Provider to provide the Service pursuant to this Agreement.  
  43. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(b),THE PROVIDER IP IS PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. 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. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(b), PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, 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, BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.  
  44. Indemnification. 
  45. Customer Indemnification. Customer shall indemnify, hold harmless, and defend Provider from and against any Losses resulting from any third-party claim, action, proceeding, or demand related to (i) Customer Data; (ii) Customer’s failure to comply with applicable law; and (iii) use of the Services or Documentation that is outside the purpose, scope, or manner of use authorized by this Agreement.  
  46. Indemnification Procedures.  The following shall apply with respect to all indemnification obligations under this Section 9: (i) the indemnified Party shall provide the indemnifying Party with prompt written notice of any claim; (ii) the indemnified Party shall permit the indemnifying Party to assume and control the defense of any action; and (iii) the indemnifying Party shall not enter into any settlement or compromise of any claim without the indemnified Party’s prior written consent, unless such settlement includes no liability or admission of fault whatsoever on the part of the indemnified Party or its affiliates or agents.  In addition, the indemnified Party may, at its own expense, participate in the defense or settlement of any claim.
  47. Limitations of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, (A)  THE MAXIMUM LIABILITY OF PROVIDER, ITS AFFILIATES, AND SUPPLIERS, FOR ANY DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, SHALL BE LIMITED TO THE FEES PAID TO PROVIDER DURING THE SIX MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM THAT GAVE RISE TO SUCH DAMAGES, AND (B) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY (OR ANY PARTY CLAIMING THROUGH THE OTHER PARTY) FOR (I) LOST PROFITS, LOSS OF GOODWILL OR REPUTATION, LOST REVENUES, LOST SAVINGS, LOST, CORRUPTED, OR DAMAGED DATA OR EQUIPMENT, COST OF COVER, LOSS OF BUSINESS OPPORTUNITY, OR (II) EXCEPT FOR CUSTOMER’S VIOLATION OF PROVIDER’S IP RIGHTS, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR LIKE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROVIDER IP, SERVICES, OR DOCUMENTATION PROVIDED HEREUNDER. THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH ABOVE SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY).  THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN EACH CASE REGARDLESS OF WHETHER THE PARTY WAS 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.
  48. Term and Termination. 
  49. Term. The initial term of this Agreement begins on date stated in the Order Form and, unless stated otherwise in the Order Form or terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until for one (1) year from such date (the “Initial Term“). This Agreement will automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term“).
  50. Termination. In addition to any other express termination right set forth in this Agreement:
  51. Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (a) fails to pay any amount when due hereunder; or (b) breaches any of its obligations under Sections 2(a), (b), or (c), Section 3, or 6;
  52. either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
  53. either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) 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; (c) makes or seeks to make a general assignment for the benefit of its creditors; or (d) 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.
  54. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer’s obligations under 6, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
  55. Survival. In the event of any termination or expiration of this Agreement for any reason, all provisions of this Agreement whose meaning requires them to survive shall survive the expiration or termination of this Agreement.
  56. Miscellaneous. 
  57. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this 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.
  58. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and 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 this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
  59. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
  60. Subcontractors. Provider may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”)
  61. Force Majeure. In no event shall Provider be liable, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control, including but not limited to acts of God, flood, fire, pandemic, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
  62. Amendment and Modification; Waiver. Provider may, at any time, modify this Agreement with or without notice to Customer.  Any such modification will be effective upon posting of the updated Agreement on Provider’s website.  Customer’s continued use of the Service following any such modification constitutes acceptance of such modifications.  No other amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of Provider. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. 
  63. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this 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 shall negotiate in good faith to modify this Agreement so as to effect their original intent 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.
  64. Governing Law; Venue. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively]in the federal courts of the United States or the courts of the State of New York in each case located in Nassau,  New York, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. 
  65. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns. 
  66. Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US. 
  67. US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
  68. Publicity.  Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that Provider may, without Customer’s consent, include Customer’s name and other indicia in its lists of Provider’s current or former customers of Provider in promotional and marketing materials.
  69. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under 6 or, in the case of Customer, Sections 2 (a), (b), or (c) 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 will be entitled to 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. 

Counterparts. This 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.

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