Standard Terms

During the Subscription Period and subject to the Use Limitations, Customer may (a) access and use the Cloud Service; and (b) copy and use the included Software and Documentation only as needed to access and use the Cloud Service, in each case, for its internal business purposes and only if Customer complies with the terms of this Agreement.

If there is an SLA and the Cloud Service does not meet the SLA, Provider will provide the remedies outlined in the SLA and will not be responsible for any other remedies. Any credits earned under the SLA will only apply to future invoices. In any event, if the Cloud Service is temporarily unavailable for scheduled maintenance, for unscheduled emergency maintenance, or because of other causes beyond Provider’s reasonable control, no SLA remedies will accrue. Provider will try to inform Customer before scheduled service disruptions through the Cloud Service or by email.

During the Subscription Period, Provider will provide Technical Support as described in the Cover Page, if any.

Customer is responsible for all actions on Users’ accounts and for Users’ compliance with this Agreement. Customer and Users must protect the confidentiality of their passwords and login credentials. Customer will promptly notify Provider if it suspects or knows of any fraudulent activity with its accounts, passwords, or credentials, or if they become compromised.

If authorized in a Cover Page, individuals from Customer’s Affiliates may access Customer’s account as Users under Customer’s Agreement and Customer will be responsible for its Affiliates’ compliance with this Agreement. If a Customer Affiliate enters a separate Cover Page with Provider, the Customer’s Affiliate creates a separate agreement between Provider and that Affiliate, where Provider’s responsibility to the Affiliate is individual and separate from Customer and Customer is not responsible for its Affiliates’ agreement.

Customer may, but is not required to, give Provider Feedback, in which case Customer gives Feedback “AS IS”. Provider may use all Feedback freely without any restriction or obligation. In addition, Provider may collect and analyze Usage Data, and Provider may freely use Usage Data to maintain, improve, and enhance Provider’s products and services without restriction or obligation. However, Provider may only share Usage Data with others if the Usage Data is aggregated and does not identify Customer or Users.

Provider may copy, display, modify, and use Customer Content only as needed to provide and maintain the Product and related offerings. Customer is responsible for the accuracy and content of Customer Content.

If Customer

1. (a)has an outstanding, undisputed balance on its account for more than 30 days after the Payment Period;
2. (b)breaches Section 2.1 (Restrictions on Customer); or
3. (c)uses the Product in violation of the Agreement or in a way that materially and negatively impacts the Product or others,

then Provider may temporarily suspend Customer’s access to the Product with or without notice. However, Provider will try to inform Customer before suspending Customer’s account when practical. Provider will reinstate Customer’s access to the Product only if Customer resolves the underlying issue.

Before submitting Personal Data governed by GDPR, Customer must enter into a data processing agreement with Provider. If the parties have a DPA, the terms of the DPA will control each party’s rights and obligations as to Personal Data and the terms of the DPA will control in the event of any conflict with this Agreement.

Customer will not (and will not allow anyone else to) submit Prohibited Data to the Product unless authorized by the Cover Page.

Provider will comply with the Security Policy, if any.

All fees are in U.S. Dollars and are exclusive of taxes. Except for the prorated refund of prepaid fees allowed with specific termination rights, fees are non-refundable. Provider will send invoices for fees applicable to the Product once per Invoice Period in advance starting on the Subscription Start Date. Invoices for Professional Services may be sent monthly during performance of the Professional Services unless the Cover Page includes a different cadence.

Customer will pay Provider the fees and taxes in each invoice in U.S. Dollars within the Payment Period.

Customer is responsible for all duties, taxes, and levies that apply to fees, including sales, use, VAT, GST, or withholding, that Provider itemizes and includes in an invoice. However, Customer is not responsible for Provider’s income taxes.

If Customer has a good-faith disagreement about the amounts charged on an invoice, Customer must notify Provider about the dispute during the Payment Period for the invoice and must pay all undisputed amounts on time. The parties will work together to resolve the dispute within 15 days after the end of the Payment Period. If no resolution is agreed, each party may pursue any remedies available under the Agreement or Applicable Laws.

Each Order Form will start on the Subscription Start Date, continue for the Subscription Period, and automatically renew for additional Subscription Periods unless one party gives notice of non-renewal to the other party before the Non-Renewal Notice Date.

This Agreement will start on the Effective Date and continue for the longer of one year or until all Subscription Periods have ended.

Either party may terminate this Agreement if the other party

1. (a)fails to cure a material breach of the Agreement within 30 days after receiving notice of the breach;
2. (b)materially breaches the Agreement in a manner that cannot be cured;
3. (c)dissolves or stops conducting business without a successor;
4. (d)makes an assignment for the benefit of creditors; or
5. (e)becomes the debtor in insolvency, receivership, or bankruptcy proceedings that continue for more than 60 days.

In addition, either party may terminate an affected Order Form if a Force Majeure Event prevents the Product from materially operating for 30 or more consecutive days, and Provider will pay to Customer a prorated refund of prepaid fees for the remainder of the Subscription Period. A party must notify the other of its reason for termination.

Termination of the Agreement will automatically terminate all Order Forms. Upon expiration or termination:

Each party represents and warrants to the other that:

1. (a)it has the legal power and authority to enter into this Agreement;
2. (b)it is duly organized, validly existing, and in good standing under the Applicable Laws of the jurisdiction of its origin;
3. (c)it will comply with all Applicable Laws in performing its obligations or exercising its rights in this Agreement; and
4. (d)it will comply with the Additional Warranties.

Customer represents and warrants that it, all Users, and anyone submitting Customer Content each have and will continue to have all rights necessary to submit or make available Customer Content to the Product and to allow the use of Customer Content as described in the Agreement.

Provider represents and warrants to Customer that (a) it will not materially reduce the general functionality of the Cloud Service during a Subscription Period; and (b) it will perform Professional Services in a competent and professional manner.

If Provider breaches a warranty in Section 7.3, Customer must give Provider notice (with enough detail for Provider to understand or replicate the issue) within 45 days of discovering the issue. Within 45 days of receiving sufficient details of the warranty issue, Provider will attempt to restore the general functionality of the Cloud Service or reperform the Professional Services. If Provider cannot resolve the issue, Customer may terminate the affected Order Form and Provider will pay to Customer a prorated refund of prepaid fees for the remainder of the Subscription Period. Provider’s restoration and reperformance obligations, and Customer’s termination right, are Customer’s only remedies if Provider does not meet the warranties in Section 7.3.

The liability caps in Section 9.1 and the damages waiver in Section 9.2 do not apply to any Unlimited Claims. The damages waiver in Section 9.2 does not apply to any Increased Claims.

Provider will indemnify, defend, and hold harmless Customer from and against all Provider Covered Claims made by someone other than Customer, Customer’s Affiliates, or Users, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, that arise from the Provider Covered Claim.

Customer will indemnify, defend, and hold harmless Provider from and against all Customer Covered Claims made by someone other than Provider or its Affiliates, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, that arise from the Customer Covered Claim.

The Indemnifying Party’s obligations in this section are contingent upon the Protected Party:

1. (a)promptly notifying the Indemnifying Party of each Covered Claim for which it seeks protection;
2. (b)providing reasonable assistance to the Indemnifying Party at the Indemnifying Party’s expense; and
3. (c)giving the Indemnifying Party sole control over the defense and settlement of each Covered Claim.

A Protected Party may participate in a Covered Claim for which it seeks protection with its own attorneys only at its own expense. The Indemnifying Party may not agree to any settlement of a Covered Claim that contains an admission of fault or otherwise materially and adversely impacts the Protected Party without the prior written consent of the Protected Party.

If required by settlement or court order, or if deemed reasonably necessary in response to a Provider Covered Claim, Provider may:

1. (a)obtain the right for Customer to continue using the Product;
2. (b)replace or modify the affected component of the Product without materially reducing the general functionality of the Product; or
3. (c)if neither (a) nor (b) are reasonable, terminate the affected Order Form and issue a pro-rated refund of prepaid fees for the remainder of the Subscription Period.

This Section 10 (Indemnification), together with any termination rights, describes each Protected Party’s exclusive remedy and each Indemnifying Party’s entire liability for a Covered Claim.

Unless otherwise authorized in the Agreement, Recipient will (a) only use Discloser’s Confidential Information to fulfill its obligations or exercise its rights under this Agreement; and (b) not disclose Discloser’s Confidential Information to anyone else. In addition, Recipient will protect Discloser’s Confidential Information using at least the same protections Recipient uses for its own similar information but no less than a reasonable standard of care.

Confidential Information does not include information that

1. (a)Recipient knew without any obligation of confidentiality before disclosure by Discloser;
2. (b)is or becomes publicly known and generally available through no fault of Recipient;
3. (c)Recipient receives under no obligation of confidentiality from someone else who is authorized to make the disclosure; or
4. (d)Recipient independently developed without use of or reference to Discloser’s Confidential Information.

Recipient may disclose Discloser’s Confidential Information to the extent required by Applicable Laws if, unless prohibited by Applicable Laws, Recipient provides the Discloser reasonable advance notice of the required disclosure and reasonably cooperates, at the Discloser’s expense, with the Discloser’s efforts to obtain confidential treatment for the Confidential Information.

Recipient may disclose Discloser’s Confidential Information to Users, employees, advisors, contractors, and representatives who each have a need to know the Confidential Information, but only if the person or entity is bound by confidentiality obligations at least as protective as those in this Section 12 and Recipient remains responsible for everyone’s compliance with the terms of this Section 12.

This Agreement is the only agreement between the parties about its subject and this Agreement supersedes all prior or contemporaneous statements (whether in writing or not) about its subject. Provider expressly rejects any terms included in Customer’s purchase order or similar document, which may only be used for accounting or administrative purposes.

Any waiver, modification, or change to the Agreement must be in writing and signed or electronically accepted by each party. However, Provider may update Technical Support, the SLA, the Security Policy, or the Acceptable Use Policy by giving Customer 30 days prior notice. During the 30-day notice period, Customer may terminate the Agreement or affected Order Form upon notice if the update is a material reduction from the prior version and Provider cannot reasonably restore the prior version or a comparable alternative. If any term of this Agreement is determined to be invalid or unenforceable by a relevant court or governing body, the remaining terms of this Agreement will remain in full force and effect. The failure of a party to enforce a term or to exercise an option or right in this Agreement will not constitute a waiver by that party of the term, option, or right.

The Governing Law will govern all interpretations and disputes about this Agreement, without regard to its conflict of laws provisions. The parties will bring any legal suit, action, or proceeding about this Agreement in the Chosen Courts and each party irrevocably submits to the exclusive jurisdiction of the Chosen Courts.

Despite Section 14.3 (Governing Law and Chosen Courts), a breach of Section 12 (Confidentiality) or the violation of a party’s intellectual property rights may cause irreparable harm for which monetary damages cannot adequately compensate. As a result, upon the actual or threatened breach of Section 12 (Confidentiality) or violation of a party’s intellectual property rights, the non-breaching or non-violating party may seek appropriate equitable relief, including an injunction, in any court of competent jurisdiction without the need to post a bond and without limiting its other rights or remedies.

Except where the Agreement provides for an exclusive remedy, seeking or exercising a remedy does not limit the other rights or remedies available to a party.

Neither party may assign any rights or obligations under this Agreement without the prior written consent of the other party. However, either party may assign this Agreement upon notice if the assigning party undergoes a merger, change of control, reorganization, or sale of all or substantially all its equity, business, or assets to which this Agreement relates. Any attempted but non-permitted assignment is void. This Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.

Neither party may publicly announce the existence of this Agreement without the prior written approval of the other party.

Any notice, request, or approval about the Agreement must be in writing and sent to the Notice Address. Notices will be deemed given (a) upon confirmed delivery if by email, registered or certified mail, or personal delivery; or (b) two days after mailing if by overnight commercial delivery.

The parties are independent contractors, not agents, partners, or joint venturers. Neither party is authorized to bind the other to any liability or obligation.

There are no third-party beneficiaries of this Agreement.

Neither party will be liable for a delay or failure to perform its obligations of this Agreement if caused by a Force Majeure Event. However, this section does not excuse Customer’s obligations to pay fees.

Customer may not remove or export from the United States or allow the export or re-export of the Product or any related technology or materials in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.

The Cloud Service and Software are deemed “commercial items” or “commercial computer software” according to FAR section 12.212 and DFAR section 227.7202, and the Documentation is “commercial computer software documentation” according to DFAR section 252.227-7014(a)(1) and (5). Any use, modification, reproduction, release, performance, display, or disclosure of the Product by the U.S. Government will be governed solely by the terms of this Agreement and all other use is prohibited.

Neither party will take any action that would be a violation of any Applicable Laws that prohibit the offering, giving, promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist Provider or Customer in retaining or obtaining business. Examples of these kinds of laws include the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010.

Section titles are for convenience and reference only. All uses of “including” and similar phrases are non-exhaustive and without limitation. The United Nations Convention for the International Sale of Goods and the Uniform Computer Information Transaction Act do not apply to this Agreement.

This Agreement may be signed in counterparts, including by electronic copies or acceptance mechanism. Each copy will be deemed an original and all copies, when taken together, will be the same agreement.

“Affiliate” means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest.

“Agreement” means these Standard Terms, together with the Cover Pages between Provider and Customer that include or reference a single set of Key Terms and the policies and documents referenced in or attached to those Cover Pages.

“Applicable Data Protection Laws” means the Applicable Laws that govern how the Cloud Service may process or use an individual’s personal information, personal data, personally identifiable information, or other similar term.

“Applicable Laws” means the laws, rules, regulations, court orders, and other binding requirements of a relevant government authority that apply to or govern Provider or Customer.

“Cloud Service” means the product described in an Order Form.

“Confidential Information” means information in any form disclosed by or on behalf of a Discloser, including before the Effective Date, to a Recipient in connection with this Agreement that (a) the Discloser identifies as “confidential”, “proprietary”, or the like; or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Confidential Information includes the existence of this Agreement and the information on each Cover Page. Customer’s Confidential Information includes non-public Customer Content and Provider’s Confidential Information includes non-public information about the Product.

“Cover Page” means a document that is signed or electronically accepted by the parties that incorporates these Standard Terms, identifies Provider and Customer, and may include an Order Form, Key Terms, or both.

“Covered Claim” means either a Provider Covered Claim or Customer Covered Claim.

“Customer Content” means data, information, or materials submitted by or on behalf of Customer or Users to the Product but excludes Feedback.

“Discloser” means a party to this Agreement when the party is providing or disclosing Confidential Information to the other party.

“Documentation” means the usage manuals and instructional materials for the Cloud Service or Software that are made available by Provider.

“Feedback” means suggestions, feedback, or comments about the Product or related offerings.

“Force Majeure Event” means an unforeseen event outside a party’s reasonable control where the affected party took reasonable measures to avoid or mitigate the impacts of the event. Examples of these kinds of events include unpredicted natural disaster like a major earthquake, war, pandemic, riot, act of terrorism, or public utility or internet failure.

“GDPR” means European Union Regulation 2016/679 as implemented by local law in the relevant European Union member nation, and by section 3 of the United Kingdom’s European Union (Withdrawal) Act of 2018 in the United Kingdom.

“High Risk Activity” means any situation where the use or failure of the Product could be reasonably expected to lead to death, bodily injury, or environmental damage. Examples include full or partial autonomous vehicle technology, medical life-support technology, emergency response services, nuclear facilities operation, and air traffic control.

“Indemnifying Party” means a party to this Agreement when the party is providing protection for a particular Covered Claim.

"Key Terms” means the portion of a Cover Page that includes the key legal details and definitions for this Agreement that are not defined in the Standard Terms. The Key Terms may include details about Covered Claims, set the Governing Law, or contain other details about this Agreement.

“Order Form” means the portion of a Cover Page that includes the key business details and definitions for this Agreement that are not defined in the Standard Terms. An Order Form may include details about the level of access and use granted to the Cloud Service, nature and timing of Professional Services, extent of Technical Support, or other details about the Product.

“Personal Data” will have the meaning(s) set forth in the Applicable Data Protection Laws for personal information, personal data, personally identifiable information, or other similar term.

"Product” means the Cloud Service, Software, and Documentation.

“Prohibited Data” means

1. (a)patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act;
2. (b)credit, debit, bank account, or other financial account numbers;
3. (c)social security numbers, driver’s license numbers, or other unique and private government ID numbers;
4. (d)special categories of data as defined in the GDPR; and
5. (e)other similar categories of sensitive information as set forth in the Applicable Data Protection Laws.

“Protected Party” means a party to this Agreement when the party is receiving the benefit of protection for a particular Covered Claim.

“Recipient” means a party to this Agreement when the party receives Confidential Information from the other party.

“Software” means the client-side software or applications made available by Provider for Customer to install, download (whether onto a machine or in a browser), or execute as part of the Product.

“Usage Data” means data and information about the provision, use, and performance of the Product and related offerings based on Customer’s or User’s use of the Product.

“User” means any individual who uses the Product on Customer’s behalf or through Customer’s account.