Software As a Service (SaaS) Agreement
Customer Terms and Conditions
This Software as a Service (SaaS) Agreement – Customer Terms and Conditions governs the use of the Onclusive Media Monitoring Service and together with the terms set forth in an Onclusive order form (each, an “Order Form”) constitute the complete agreement (“Agreement”) between Onclusive, Inc. (“Onclusive”) and the customer specified in the Order Form (“Customer”). The Agreement is effective as of the date of the Order Form. By signing an Order Form, or accessing or using any Onclusive Service, Customer signifies that Customer has read, understood and agrees to be bound by the terms of this Agreement.
In consideration of the mutual covenants and conditions contained in this Agreement, the parties agree as follows:
- Definitions. As used in this Agreement, the capitalized terms listed below shall have the following meanings:
- “Affiliate” means, with respect to a specified entity, any other entity that directly or indirectly Controls, is Controlled by or is under common Control with the specified entity, where “Control” means the possession, directly or indirectly, of the power to direct the management and policies of the entity, whether through ownership of voting securities or otherwise.
- “Associated Entity” means an entity, such as Customer’s public relations or marketing agency, who is authorized by Customer to access and use the Service.
- “Content” means all data, information and content available through the Service, excluding Customer Data.
- “Customer Data” means electronic data and information submitted by or for Customer to the Service, excluding Content, including but not limited to Customer’s analytics data in connection with publicly available pages on the Customer’s website, search terms, key messages, media lists, content tags, pitch lists, and notes on journalists.
- “Documentation” means the technical documentation, user manuals, knowledge based Content and other materials in written or electronic form provided to Customer by Onclusive in connection with Customer’s use of the Service. Documentation does not include promotional materials.
- “Enhancements” means minor modifications, revisions and corresponding Documentation with respect to the Service, including the addition of feature improvements or improved performance made available by Onclusive to the Service; however, Enhancements shall not include the addition of modules or significant new features not originally included as part of the Service.
- “Maintenance Modifications” means bug fixes, patches, modifications or revisions to the Service that correct errors therein.
- “Order Form” means a document pursuant to which the Service is acquired and which sets forth Customer information and the specific details of an order. An Order Form can either be entered into online or prepared by Onclusive and sent to the Customer.
- “Service” means Onclusive’s media monitoring platform, including the software and other technology that powers the Service and any Enhancements, Maintenance Modifications and corresponding Documentation.
- “User” means an individual user authorized to use the Service, which can include an employee of an Affiliate or of an Associated Entity to Customer.
- “Term” means the period of time during which the Service will be provided to Customer. The “Initial Service Term” is the first period of time during which the Service is provided, prior to any renewals.
Capitalized terms not defined herein shall have the meanings ascribed to them in the Order Form.
2.1 Provision of Service. Onclusive shall provide Customer with (a) access to and use of the Service during the Term with respect to the quantities, individual services and other order details set forth on the Order Form, and (b) Enhancements and Maintenance Modifications as they become generally available to Onclusive’s customers.
2.2 License. Subject to the terms and conditions of this Agreement, Onclusive grants Customer the non-exclusive, non-transferable, non-sublicensable license, during the Term set forth in the Order From, to use: (a) the Service for its intended purpose, in accordance with the Documentation; and (b) the Documentation in conjunction with Customer’s use of the Service.
2.3 Associated Entity Access. If Customer wishes for an Associated Entity to have the right to access and use the Service, it must provide names and contact information for each individual User to Onclusive. These Users will be required to acknowledge a set of basic terms at such time as the login credentials are provided to them.
2.4 Support. Onclusive will provide access to self-service support documentation and videos whenever a User is logged into the platform. In order to (i) answer questions regarding use of the Service, (ii) help Customer with diagnosis and fixing of problems, and (iii) allow Customer to file bug reports and communicate generally with Onclusive, Onclusive shall provide User with web-based communication and support. Onclusive’s email support address is: firstname.lastname@example.org. If a system failure should occur that creates an outage of the Service, Onclusive will utilize all reasonable means to end the outage as soon as possible. Outages due to the Internet, hosting providers and/or Customer systems are outside the control of Onclusive. In such an event, Onclusive will use commercially reasonable efforts to assist the Customer in the diagnosis of these problems but may not be able to resolve the problem. From time to time, Onclusive or its hosting providers will perform preventative maintenance, such as updating servers and routers with security patches, and software upgrades. Onclusive will keep any resulting downtime reasonable and shall use all reasonable efforts to perform such maintenance outside of normal working hours.
3.1 User Authorizations. Except for Associated Entities who have been authorized by Customer to access the Service, Customer may not allow any third party to (a) rent, loan or sublicense rights to access and/or use the Service; (b) unlock, modify, disassemble, decompile, reverse engineer, or run any third-party software other than approved integrated applications or browsers upon any part of the Service, including its software components; (c) share identification or passwords with persons other than authorized Users or permit the Service to be accessed by individuals who are not authorized Users; (d) provide any reports, data or information generated by the Service to an Onclusive competitor.
3.2 Usage Limits. The Service and Content may be subject to usage and feature limits, as further specified in the applicable Order Form and this Agreement. Customer shall not exceed such unless Customer purchases additional quantities or features through the online ordering facility or via a “add-on” agreement or a written amendment to the original Order Form.
3.3 Limitations. A User authorization may be reassigned to a new individual replacing an individual who no longer requires ongoing use of the Service; however, a User’s login credentials may not be shared with any other individual. Customer shall abide by, and ensure that its Users abide by, all applicable local, state, national and foreign laws and regulations in connection with its use of the Service. Customer shall be responsible for the accuracy, quality and legality of Customer Data and the source from and means by which Customer acquires the Customer Data. Customer shall not use the Service in any way not expressly provided for in this Agreement. Customer shall (i) be responsible for all activities that occur under Customer’s account, including protecting the confidentiality of Users’ passwords and User IDs, and maintaining timely contact information for such account; (ii) assume responsibility for acts and omissions of all Users (whether employees of Customer or an Associated Entity); (iii) ensure that all Users’ use of the Service is in compliance with this Agreement, the Documentation, Onclusive’s reasonable instructions; (iv) use commercially reasonable efforts to prevent unauthorized access to and use of the Service, and shall notify Onclusive of any unauthorized use of Customer’s account or a User login credentials or any other breach of security that is known or suspected by Customer.
3.4 Queries. The Onclusive Monitoring feature of the Service monitors various information sources for mentions of words or phrases requested by Customer. Onclusive reserves the right to refuse to perform any monitoring of a word or phrase that Onclusive reasonably determines is unlawful or against Onclusive policies.
3.5 Media Database. Customer may allow its Users to access and use Onclusive’s media database that contains media profiles and associated information (“Media Database”) to create and download lists of journalist information, send and track email communications to journalists, and attach its own personal notes to journalist profiles. Customers who use the Media Database to communicate in any way (via email, phone call, social media) agree to do so on their own behalf and for the purposes of media relations work only. Customer will not: (1) attempt to download, either manually or in an automated fashion, the entire Media Database or significant portions thereof; (2) remove any proprietary notices, graphics, or text contained in or on the Media Database or on any downloaded lists; (3) make the Media Database or any downloaded lists available to non-Users, unless otherwise permitted under this Agreement; (4) use the media database in any way which is likely to cause harm to the journalists; (5) incorporate or use the Media Database in any resale process; or (6) use the Media Database in a manner that would violate any applicable law, including but not limited to the CAN-SPAM Act or other anti-spamming laws or regulations and the Canadian Personal Information Protection and Electronic Documents Act as amended by the Canada Anti-Spam Legislation. Onclusive reserves the right to terminate customers who are shown not to have adhered to these requirements. The Customer owns and is wholly responsible for all data the Customer enters into the Onclusive platform. Onclusive cannot be held liable for errors and omissions, or illegal data entered or inflammatory communications distributed via the Onclusive platform by Customer.
4. Proprietary Rights
- Service. The Service, and all modifications, enhancements and derivative works thereof, all ownership, right, title and interest in and to the Service, and all associated intellectual property and other proprietary rights in and to the Service, belong to Onclusive. No license or other interest in any intellectual property right or other proprietary interest not expressly granted under the Agreement is granted to Customer hereunder.
- Content. The Content, and all modifications, enhancements and derivative works thereof, all ownership, right, title and interest in and to the Content, and all associated intellectual property and other proprietary rights in and to the Content, belong to Onclusive or its third-party providers.
- Data. All Customer Data and all ownership, right, title and interest in and to the Data, including without limitation, all associated intellectual property and other proprietary rights, belong to the Customer. Customer grants Onclusive the right to use the Customer Data solely in delivery of the Service. Onclusive may only use website analytics data in an aggregated, anonymized form such that the data cannot be identified as pertaining or linked to the Customer.
- Submissions. Onclusive shall own all right, title and interest in and to any suggestions, ideas, feedback or other recommendations provided by Customer relating to the Service (“Submissions”) and Customer agrees to and hereby assigns such Submissions to Onclusive without compensation of any type.
- Third Party Content.
- Proprietary Rights. Customer acknowledges that the Service contains copyrighted and proprietary content, information and materials obtained under license from third parties and/or monitored by Onclusive (“Third-Party Content”) from the following sources: (1) print, (2) digital/online, (3) social media, and (4) broadcast monitoring. Information provided through broadcast monitoring is also referred to in this Agreement as “Broadcast Content.” The providers of the Third-Party Content retain ownership of all proprietary rights in and to the Third-Party Content, including without limitation all intellectual property rights. Customer acknowledges that certain Third-Party Content may only remain on Onclusive’s servers for a limited period of time pursuant to Onclusive’s agreements with its third-party providers. After expiration of that time, certain Third-Party Content may not be available for retrieval from the Service.
- Onclusive Not Responsible for Third-Party Content. Third-Party Content provided through the Service is provided “AS IS” without warranty of any kind. Onclusive disclaims all representations, warranties and conditions with respect to Third-Party Content, expressed or implied, including without limitation any warranties of title or noninfringement and any implied warranties of merchantability, fitness or sufficiency for a particular purpose, or arising from the course of dealing between the parties or usage of trade. Onclusive takes no responsibility and assumes no liability for the use of Third-Party Content provided through the Service. Customer acknowledges and agrees that Onclusive is only acting as a passive conduit for online distribution and publication of Third-Party Content from a third party. Customer acknowledges and agrees Onclusive is not responsible for the substance, text or subject of any Third-Party Content. Onclusive does not imply, represent or warrant, by virtue of supplying information incorporating Third-Party Content, that Onclusive holds or grants any license to use any text, video clips or graphics provided, including news mentions or links to such mentions. Customer’s use of any text, video clips or graphics provided hereunder, other than in accordance with the terms set forth herein, shall be at Customer’s sole risk and expense. Onclusive does not represent or warrant that any specific source will be monitored by Onclusive or represent that any amount of Third-Party Content will be delivered through the Service. Onclusive reserves the right to change the sources that it monitors at any time. Certain sources may limit Customer’s ability to view content or access links through the Service. UNLESS OTHERWISE PROVIDED IN THIS AGREEMENT, DOWNLOADING, REPRODUCTION, REDISTRIBUTION, OR REPUBLICATION OF THE THIRD-PARTY CONTENT IS SOLELY AT CUSTOMER’S OWN RISK. CUSTOMER AND ITS THIRD-PARTY PROVIDERS WILL NOT BE LIABLE FOR CUSTOMER’S SUBSEQUENT USE OR DISTRIBUTION OF THE THIRD-PARTY CONTENT.
- Text and Video Clips. Unless otherwise authorized in this Agreement, Customer may not (a) resell any text or video clips supplied hereunder (including any portion thereof); or (b) distribute or transfer, by any means whatsoever, any text or video clips received through the Service (or copies thereof), to any person, organization or institution other than Users. Customer warrants that text or video clips provided to Customer through the use of the Service will not be resold, republished or otherwise distributed to third parties in any form, including but not limited to through an intranet, extranet or internet site. Notwithstanding anything to the contrary in this Agreement, Customer may, through the Service, post, in electronic format, text, reports or the like, received through the Service to an intranet site for access and use solely by Users.
- Broadcast Content. Onclusive provides Broadcast Content through partnerships with third-party providers for up to thirty (30) days after the original broadcast date, unless otherwise specified herein or permitted in the third party’s software. Notwithstanding anything in this Agreement to the contrary, Customer may: (1) use the Broadcast Content only for Customer’s internal, research and/or business purposes; (2) distribute the Broadcast Content only within Customer’s organization in digital copy or link distribution through e-mail, as permitted by the third party’s software; (3) not publicly distribute, broadcast, transfer, display, or otherwise publicly exhibit any part of the Broadcast Content by any means, including posting clips to a public Web site on the Internet; (4) not resell, redistribute, download, or store Broadcast Content, other than as permitted in this Section; (5) not create derivative works from, copy and paste links, resell, reverse engineer or otherwise redistribute to third parties the Broadcast Content; or (6) alter, obscure, remove, change, obliterate or separate any identification, copyright, trademark, confidential or proprietary notices from the Service or the Broadcast Content. Customer must use best efforts to prevent unauthorized copying or distribution of the Broadcast Content. Onclusive will provide Customer with information on subjects that Customer selects from broadcast sources, and Broadcast Content is provided “AS IS.” Onclusive will stream clips or links up to thirty (30) days from the original broadcast air date unless Customer purchases a “download” or a “stream.” Notwithstanding the foregoing, certain download or streaming functionality may not be available if such functionality is or becomes restricted by the third-party provider of such Broadcast Content or by law or by regulation. Customer may access the text (or portions of the text) and video clips containing the Customer queries through the Service. Using the Service’s functionality, Customer may e-mail text and/or hyperlinks viewable to Customer’s employees, agents, contractors or clients (in the case of agencies who use the Service on behalf of a client) solely for use in relation to Customer’s or client’s (in case of agencies who use the Service on behalf of a client) internal business purpose. Additional rights to the Broadcast Content must be obtained from the rights owner directly. Customer agrees to use reasonable efforts to prevent unauthorized copying, display, or distribution of the Broadcast Content, and unauthorized access to the Broadcast Content. Customer shall comply with all laws and regulations applicable to Customer’s use of the Broadcast Content.
- News Monitoring with LexisNexis. Customer agrees all access to and use of content made available by LexisNexis, a division of RELX Inc. (“LexisNexis”), through (or in connection with) the Service is provided for media monitoring and evaluation purposes only and is subject to the terms and conditions provided in the General Terms and Conditions for Use of the LexisNexis Services (and updates thereof) available online at lexisnexis.com/terms/general (the “General Terms”). The General Terms shall be deemed modified to the extent necessary to permit access to the LexisNexis-provided Content through the functionality of the Service. Customer further agrees the General Terms constitute and form a separate binding agreement between LexisNexis and Customer, and LexisNexis has the right to assert and enforce this Agreement, including the General Terms, directly on its own behalf. LexisNexis’ consent to the terms of this Agreement is evidenced by providing Customer with the means to access LexisNexis content. LexisNexis expressly disclaims any and all liability with regard to Customer’s access to and use of any materials retrieved from third party websites (“Web Materials”) by and through the Service. LexisNexis has not entered into a licensing agreement or linking agreement with the owners of the websites that provide Web Materials and makes no representation that it has the right to sublicense access to the Web Materials to Customer. Customer’s use of the Web Materials including any distribution or redistribution thereof is solely at its own risk. Customer will indemnify and hold LexisNexis and its affiliates and its and their employees, officers, and directors (the “Covered Parties”) harmless from any loss or damage suffered by the Covered Parties as a result of a third-party claim brought against the Covered Parties as a result of Customer’s use of Web Materials. LexisNexis and Customer are independent entities and neither is acting on behalf of, or has any right to bind, the other for any purpose or in any way. LexisNexis shall not be responsible for any actions, operations or business of Customer, including, without limitation, errors or omissions that may be introduced into LexisNexis Content by Customer. Customer agrees that it will not make any claim or take any action against LexisNexis for or in connection with the actions, activities, negligence, operations or business of Customer. Onclusive takes no responsibility and assumes no liability for the obligations of LexisNexis as well as any LexisNexis-provided Content accessed through the Service. Customer agrees that Onclusive is only acting as a passive conduit for online distribution and publication of LexisNexis-provided Content that has been ordered by Customer from LexisNexis.
- Social Media Monitoring. Customer agrees all access to and use of social media monitoring content made available by Keyhole (“Keyhole”) through (or in connection with) the Service is provided for media monitoring and evaluation purposes only and is subject to the terms and conditions provided in the Keyhole Terms of Service (and updates thereof) available online at https://keyhole.co/terms-of-service (the “Terms of Service”). Onclusive may need administrative access to Customer’s social media platform(s) to provide social media monitoring services. Certain Content may be provided by Twitter (“Twitter Data”), and by using such Content, Customer agrees to the Twitter Terms of Service located at www.twitter.com (“Twitter TOS”)
- Fees and Payment.
- Trial Period. This Section 6 shall only become applicable upon expiration of the trial period, if any.
- Fees. Customer shall pay Onclusive the amount(s) and in accordance with the payment terms specified on the Order Form. Fees for the Service are determined by the features selected by the Customer. Except as otherwise specified herein or in the Order Form, fees are based on Service and Content subscriptions purchased and not actual usage. Unless stated otherwise in the Order Form, the Term will automatically renew for one-year periods at the then current list price. Customer will be given no less than thirty (30) days’ notice of the renewal. Onclusive reserves the right to change the fees or applicable charges and to institute new charges and new fees at the end of the Initial Service Term or then-current Renewal term, with thirty (30) days prior written notice to Customer (which may be sent by email). Except as expressly provided herein, all fees are non-refundable.
- Print Content Fees. For print Content, Onclusive may charge a fee as set forth on the applicable Order Form as well as a variable fee for delivery of certain articles, as specified on the Media Monitoring website.
- Broadcast Content Fees. Broadcast monitoring fees consist of a negotiated, nonrefundable fee based on Customer’s estimate of how much broadcast coverage is included in the Service (e.g., how many clips mention Customer or “clip volume”). Fees for Broadcast Content are charged as set forth in the Media Monitoring website, however, Customer may obtain volume pricing on clip download packages by pre-paying for a number of clip downloads, which is non-refundable. Packages expire at the end of the Term, and clips must be used during the Term. If Customer’s usage exceeds the package volume, Onclusive will invoice Customer for the overage amounts. Customer agrees to pay taxes, special services, out of market, special rush, archival, or product license fees in addition to the contractual rate, if applicable.
- Managed Services. Managed Services fees may consist of defined packages as set forth on the Order Form, or as agreed to in writing (email is acceptable) by Customer and will be invoiced on an ad hoc basis.
- Payment. Unless stated otherwise in the Order Form, all Fees are due and payable prior to service or access of the Onclusive Media Monitoring platform. Payment will be processed via credit card transaction unless otherwise stated. If Customer believes that Onclusive has charged Customer incorrectly, Customer must contact Onclusive no later than 15 days after the payment date in which the error or problem first appeared in order to seek resolution. The parties will promptly confer in good faith to resolve payment disputes.
- Taxes. The prices stated in Onclusive’s quotations are exclusive of any federal, state, or other governmental taxes, duties, fees, or tariffs now or hereafter imposed on the Service. Customer shall be responsible for, and if necessary reimburse, Onclusive for all such taxes, duties, fees, excises, or tariffs, except for taxes imposed on Onclusive’s net income.
- Late Payment. Overdue payments shall be subject to a finance charge of one percent (1%) for each month or fraction thereof that the invoice is overdue, or the highest interest rate permitted by applicable law, whichever is lower. Onclusive shall also be reimbursed for its collection costs incurred in attempting to collect any late payments, including reasonable attorney’s fees. If Customer does not pay Onclusive within thirty (30) days after the due date of any payment, Onclusive may, with prior written notice and at its sole discretion, in addition to pursuing any of its other remedies, suspend provision of the applicable Service until all outstanding payments are made, or terminate the applicable Onclusive Media Monitoring platform agreement and/or this Agreement. No such suspension shall affect Onclusive’s rights or Customer’s accrued obligations hereunder.
- Term. The Agreement shall remain in effect for the Term (including any renewals) of any Order Forms and shall be coterminous with the last-to-expire/terminate Order Form outstanding.
- Termination for Material Breach. Either party may terminate an Order Form (and this Agreement with respect to such Order Form) upon a material breach that is not cured within thirty (30) days following written notice thereof.
- Effect of Termination. Termination of one Order Form shall not affect any other Order Form. Upon expiration or termination of an Order Form for any reason, except for a material breach by Customer, Customer will pay any fees owed to Onclusive for the Service provided up to the date of termination. If an Order Form is terminated by Onclusive due to a material breach by Customer, Customer will be obligated to pay any fees applicable to the entire Term set forth in the applicable Order Form. In addition, upon termination of an Order Form, (a) Customer shall immediately discontinue use of the Service, which will immediately cease; and (b) each party shall return or destroy the other party’s Confidential Information in its possession.
- Survival. In addition to any payment obligations and rights that accrued prior to termination, the provisions of Sections 1, 4, 5-8, 9.3, 10-13 shall survive any termination of this Agreement.
- Renewal Term. The Agreement will automatically renew for successive terms of one (1) year for annual contracts and one 1) month for monthly contracts (the “Renewal Term”) unless Customer notifies Onclusive it does not wish to renew the Agreement or any particular Service or Additional Services set forth in the Order Form before the expiration of the Initial Term or any Renewal Term, as applicable, by notifying Onclusive in writing at least 30 days before the completion of the Initial Term or Renewal Term, as applicable.
- Confidential Information. The term “Confidential Information” means all non-public information, whether business or technical in nature, that the other party identifies as being confidential, and includes (but is not limited to) Customer information concerning business methods, business plans, new product launches, customer and vendor information, internal policies and procedures and pricing and financial information. Confidential Information also includes information that from its nature or the circumstances surrounding its disclosure, should be reasonably understood to be confidential or proprietary information. Notwithstanding the foregoing, information will not be deemed confidential if it (a) was known to the receiving party, and such information was acquired through proper methods, prior to its receipt from the disclosing party, as evidenced by written records of the receiving party; (b) is now or later becomes generally or publicly known through no act, omission or breach of this Agreement by the receiving party; (c) is supplied to the receiving party by a third party that is free to make that disclosure without restriction; or (d) is independently developed by the receiving party without use of or reference to any Confidential Information provided by the disclosing party.
- Use; Disclosure. Each party agrees that during and for at least three (3) years after expiration or termination of this Agreement it will hold in strictest confidence, and will not use for any purpose unrelated to its performance of this Agreement or disclose to any third party, any Confidential Information of the other party, except (1) as necessary to implement, perform and enforce the terms of this Agreement; (2) by law; or (3) under appropriate nondisclosure terms to auditors, accounting, financial and legal advisers, or to an existing or potential investor, acquiring company, bank or other financial institution in connection with a merger, acquisition, financing, loan or similar corporate transaction. Neither party shall disclose the terms or conditions of this Agreement without the prior written consent of the other party, except (a) as may be required by law or (b) to its employees, contractors or agents who have a specific need to know such information and are under an obligation of confidentiality at least as restrictive as that contained in this Section. The restrictions on disclosure imposed by this Section shall not apply to information that is required by law or order of a court, administrative agency or other governmental body to be disclosed by the receiving party, provided that in each such case (i) the receiving party provides the disclosing party with prompt written notice of such order or requirement and reasonably assists the disclosing party in obtaining a protective order or other appropriate relief, and (ii) the information shall continue to be recognized as Confidential Information for all other purposes. In no event may the Confidential Information of disclosing party be disclosed to its competitor or used to develop a competitive service.
- Onclusive Warranty. Onclusive shall use reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner that minimizes errors and interruptions in the Service. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Onclusive or by third-party providers, or because of other causes beyond Onclusive’s reasonable control, but Onclusive shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Onclusive does not warrant that the Service will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Service. Onclusive warrants that, during the term of the Order Form, it will provide each Service in material conformance with the requirements and for the use identified and as set forth in the applicable Order Form and Documentation. Onclusive, at its sole expense and as Customer’s sole remedy, will use commercially reasonable efforts to correct any material non-conformance within sixty (60) days after Onclusive receives written notice from Customer that includes information sufficient to permit Onclusive to recreate the non-conformance. Customer acknowledges that the Service and Onclusive’s services are complex with a variety of dependencies, and as such, Onclusive cannot guarantee that any services will be provided without error or interruption or accepted by any third party. Onclusive’s warranty obligations are expressly subject to: (a) the Service being used in accordance with this Agreement, the applicable Order Form, the Documentation and any other instructions subsequently provided by Onclusive; and (b) Customer providing written notice to Onclusive of any alleged breach of such warranty promptly after Customer becomes aware of such breach. Notwithstanding anything else in this Agreement, Onclusive shall have no liability under this Agreement or any applicable Order Form, pursuant to the warranty in this Section 9 or otherwise, arising out of or relating to: (1) any use, re-transmission or reliance on inaccurate or incomplete Customer materials, data or information, provided by Customer or its vendors or agents; (2) the failure of Customer or a Customer vendor or agent to provide the necessary information to Onclusive in a timely manner; or (3) non-Onclusive errors or omissions in use of, or input of any information or data in connection with, a Service.
- Customer Warranty. Customer represents and warrants that it has full and sufficient rights to use and to disclose to Onclusive any and all Customer materials, data and information that it provides (or directs be provided) to Onclusive.
- Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 9, THE SERVICE IS PROVIDED “AS IS” AND ONCLUSIVE AND ITS LICENSORS DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESSED OR IMPLIED. ONCLUSIVE EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS OR SUFFICIENCY FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, OR ARISING FROM THE COURSE OF DEALING BETWEEN THE PARTIES OR USAGE OF TRADE. ONCLUSIVE DOES NOT WARRANT THAT THE OPERATION OF THE SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE.
- By Onclusive. Onclusive will (a) defend Customer against any filed lawsuit (a “Claim”) brought against Customer by a third party (the “Claimant”) alleging that the Service infringes any U.S. copyright, trademark or patent duly issued as of the Effective Date of this Agreement, and shall (b) either (i) indemnify Customer with respect to any final, non-appealable judgments, costs, fines or penalties awarded, entered or assessed against Customer by a court of competent jurisdiction that directly result from a Claim, or (ii) pay the value of any settlement with the Claimant agreed to by Customer in writing. Onclusive’s obligations under this Section are conditioned upon Onclusive having sole control of any such action, upon Customer notifying Onclusive promptly in writing of the Claim, giving Onclusive all authority, information, and assistance necessary to settle or defend such Claim, and making no admission of guilt or liability with respect to the Claim. In addition, if the use of the Service is found to infringe, or is enjoined, or Onclusive believes the Service is likely to infringe or be enjoined, Onclusive may, at its sole option, (i) procure for Customer the right to continue use of the Service as furnished; (ii) replace or modify the Service to make it non-infringing, provided that it still substantially conforms to the applicable Documentation; or (iii) if Onclusive, after using all commercially reasonable efforts, is unable to accomplish the foregoing remedies, terminate the Agreement and refund Customer the prorated amount of any prepaid fees. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Onclusive, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Onclusive, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. Notwithstanding anything to the contrary, in no event shall Onclusive have any authority to agree to any financial or other liability of Customer without Customer’s prior written consent. The foregoing states the sole and exclusive indemnification liability of Onclusive under this Agreement.
- By Customer. Customer will defend Onclusive against any third-party action claiming (a) any use of a Service by Customer other than as permitted in this Agreement, or (b) Onclusive’s use of Customer materials, data and information as permitted in this Agreement infringes or misappropriates any third party’s proprietary rights, including intellectual property or data privacy rights, and shall indemnify and pay all settlements entered into and damages awarded against Onclusive to the extent incurred as a direct result of such action. Customer shall have sole control of any such action. Onclusive shall notify Customer promptly in writing of the claim and give Customer all authority, information, and assistance necessary to settle or defend such claim, and make no admission of guilt or liability with respect to the claim. Notwithstanding anything to the contrary, in no event shall Customer have any authority to agree to any financial or other liability of Onclusive without Onclusive’s prior written consent. Onclusive may participate in the defense of any claims with counsel of its own choosing. The foregoing states the sole and exclusive indemnification liability of Customer under this Agreement with respect to third party claims.
- Data Privacy & Customer Obligations. Customer agrees to comply with all applicable data protection and privacy laws and regulations in connection with Customer’s and its Users’ use of the Service. To the extent that any Customer Data or personally identifiable or private information of Users (“User Information”) provided to Onclusive in connection with the Service is subject to any privacy laws or regulations, including those applicable to the European Union and the United Kingdom including, without limitation the EU General Data Protection Regulation and EU e-Privacy Directive (collectively, “EU Data Protection Laws”), Customer shall, prior to providing such Customer Data or User Information to Onclusive promptly notify Onclusive in writing. In such event, Customer accepts and agrees to the Data Processing Addendum set forth at https://onclusive.com/legal/gdpr-dataprocessingaddendum/. If Customer does not accept and agree to the Data Processing Addendum with Onclusive, then Customer represents and warrants that the Customer Data and User Information is not subject to the EU Data Protection Laws. Customer will indemnify and hold harmless Onclusive and its Affiliates, and their licensors, suppliers, employees, contractors and agents from and against all liabilities, losses, damages, costs, and expenses (including attorneys’ fees) as incurred by Onclusive arising from or related to Customer’s breach of the foregoing warranty or violation of the EU Data Protection Laws.
- Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, (a) NEITHER PARTY NOR ITS LICENSORS, SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT, CONTENT AND TECHNOLOGY SUPPLIERS), ASSOCIATED ENTITIES, AND THEIR RESPECTIVE OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, INCLUDING WITHOUT LIMITATION, LOST PROFITS, SAVINGS OR REVENUE OR OTHER COMMERCIAL INJURY, OR THE USE OR INABILITY TO USE A SERVICE AND/OR ANY OUTPUT THEREOF, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, IN ANY WAY ARISING OUT OF PROVISION OF THE SERVICE OR THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY; AND (B) EACH PARTY’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID TO ONCLUSIVE BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE ACT THAT GAVE RISE TO THE LIABILITY. THE LIMITATIONS IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, CUSTOMER’S PAYMENT OBLIGATIONS OR BREACH BY CUSTOMER OF SECTION 4 (PROPRIETARY RIGHTS). NEITHER ONCLUSIVE NOR ITS LICENSORS AND SUPPLIERS SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY MATTER BEYOND ONCLUSIVE’S REASONABLE CONTROL; OR (C) FOR ANY COMBINATION, OPERATION OR USE OF A SERVICE WITH TECHNOLOGY OR DATA NOT SUPPLIED BY ONCLUSIVE FOR OTHER THAN THE INTENDED PURPOSE, OR ARISING FROM ANY NON-ONCLUSIVE MODIFICATIONS OF A SERVICE OR REPORT, IF THE CLAIM WOULD NOT HAVE ARISEN WITHOUT SUCH MODIFICATION.
- Independent Contractors. The relationship of the parties is that of independent contractors and nothing contained in this Agreement shall be construed to make either party an agent, partner, joint venturer, or representative of the other for any purpose. Neither party may bind the other party in any way.
- No Third-Party Beneficiaries. This Agreement is made solely and specifically between and for the benefit of Onclusive and Customer, and except as expressly provided herein no other person or entity shall have any rights, interests or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third-party beneficiary or otherwise.
- Force Majeure. Non-performance of either party shall be excused to the extent that performance is rendered impossible or commercially impracticable by any reason where failure to perform is beyond the reasonable control of the non-performing party.
- Assignment. Neither party may assign this Agreement, in whole or in part, without the other party’s written consent; provided, however, that either party may assign its rights and obligations under this Agreement without such consent in connection with any acquisition or change of control of such party or transfer by Onclusive of a Service whether by sale of assets or securities, merger, consolidation, operation of law or otherwise. This Agreement shall inure to the benefit of and be binding on the parties and their respective successors and permitted assigns.
- Governing Law; Jurisdiction. The rights of the parties hereunder shall be governed by the laws of the State of California, without giving effect to its principles of conflicts of laws. Each party consents to the exclusive jurisdiction and venue of the appropriate courts in the city and county of San Francisco for all disputes arising out of or relating to this Agreement or the Service.
- Dispute Resolution. If a dispute arises out of or relates to this Agreement, the parties agree to use their good faith best efforts to resolve the dispute as quickly as possible through negotiation, including if necessary, meetings between the executives of each party. If the parties have not resolved the dispute within thirty (30) days after the initial meeting to resolve the dispute, then the parties agree first to try in good faith to resolve the dispute through mediation administered by the America Arbitration Association under its Commercial Mediation Procedures, in San Francisco, California, and to share the cost of mediation equally. If the parties cannot resolve the dispute through mediation, then the parties agree to binding arbitration before a single arbitrator who is a retired judge experienced in commercial disputes of the nature of the parties’ claims through arbitration administered by the America Arbitration Association under its Commercial Arbitration Procedures in San Francisco, California. Each party acknowledges that this provision constitutes a material inducement upon which the other party has relied in entering into this Agreement.
- Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, such provision shall be stricken from the Agreement and the remaining provisions of this Agreement shall remain in full force and effect.
- Entire Agreement. This Agreement, including the applicable Order Form and all agreements referenced therein, constitutes the entire agreement between the parties with respect to its subject matter and replaces any prior understandings, written or oral. No terms, provisions or conditions of any purchase order, invoice or other business form or written authorization used by Customer will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement or Order Form regardless of any failure of Onclusive to object to such terms, provisions or conditions, even if such document is signed by the parties.
- Amendment; Waiver. Onclusive may modify or update these terms and conditions from time to time without notice, in which case, the “last modified date” at the top of this page will be updated. Such modifications or updates will not materially reduce Customer’s rights or Onclusive’s obligations hereunder. Customer should review these terms and conditions periodically for changes. Customer’s continued use of the Service after any such change constitutes Customer’s acceptance of the revised terms and conditions. No term of this Agreement may be waived except by a written instrument signed by the party against whom the waiver is enforced. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.