Customer Agreement

CRYPTOWERK TERMS AND CONDITIONS

THESE TERMS AND CONDITIONS ARE A LEGAL AGREEMENT (THE “AGREEMENT”) BETWEEN CRYPTOWERK (“SUPPLIER”) AND YOU (“CUSTOMER”).  BY CLICKING THE “I ACCEPT” BUTTON OR ACCESSING OR OTHERWISE USING THIS SERVICE AND ITS ASSOCIATED USER DOCUMENTATION, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS REVIEWED AND ACCEPTS THIS AGREEMENT AND AGREES TO BE BOUND BY ALL OF ITS TERMS.  IF YOU ARE AGREEING TO THIS AGREEMENT AS AN INDIVIDUAL, “CUSTOMER” REFERS TO YOU INDIVIDUALLY.  IF YOU ARE AGREEING TO THIS AGREEMENT AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND “CUSTOMER” REFERS TO THAT ENTITY AND ALL THE USERS ACCESSING THIS SERVICE BY, THROUGH OR ON BEHALF OF THE CUSTOMER.  IF CUSTOMER DOES NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR OTHERWISE USE THE SERVICE OR ITS DOCUMENTATION.  CUSTOMER AND SUPPLIER ARE EACH A “PARTY” AND, TOGETHER, ARE THE “PARTIES.

  1. DEFINITIONS.
    • “Activation Date” means the date on which the Customer has clicked on the button or started using the Services.
    • “Authorized Purposes” means Customer’s business purposes and production or commercial use in the Subscription Term if the Subscription Term is not for an Evaluation License. If the Subscription Term is for an Evaluation License, then “Authorized Purposes” means Customer’s internal testing and evaluation use only and not for any production use or commercial use, including but not limited to any embedding, bundling, or other such re-sale of the Supplier Services.
    • “Customer Data” means all hashes and related data transmitted by or on behalf of Customer or any User and received and processed by the Services.
    • “Customer System” means Customer’s internal website(s), servers and other equipment and software used in the conduct of Customer’s business.
    • “Documentation” means the printed, paper, electronic or online user instructions and help files made available by Supplier for use with the Services, as may be updated from time to time by Supplier.
    • Evaluation License” means a non-production license granted to Customer with respect to the Supplier Services for a limited number of Hash Transactions, as specified by the Hash Transaction Cap posted on the Supplier website.
    • Hash Transaction” means a hash value returned by a cryptographic hash function, wherein the hash value can be used to verify the input data to the hash function.  This hash value becomes a hash transaction when it is submitted to Supplier Services via an API call.
    • Hash Transaction Cap” means the monthly cap on Hash Transactions a Customer may use based on the level of Supplier Services purchased by Customer or, if the Subscription Term is for an Evaluation License, the cap on Hash Transactions for an Evaluation License as posted on the Supplier website, which may be subject to change from time to time.
    • “Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.
    • “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
    • “Open Source Software” means all software that is available under any license that is approved by the Open Source Initiative (opensource.org).
    • Order Form” means the ordering documents for Services purchased from Supplier unless the Customer purchases the Services through the website of the Supplier where the terms are included and that are executed hereunder by the Parties from time to time, including modifications, supplements and addenda thereto. Order Forms are incorporated herein.
    • “Services” means the Supplier Services and Support Services.
    • “Subscription Term” means the term commencing on the Activation Date until expiration or termination as provided in Section 13.
    • “Supplier Services” means the services provided by Supplier to Customer pursuant to this Agreement and for all purposes of this Agreement, but shall not include the Support Services.
    • “Support Services” means the support and maintenance services offered by Supplier.
    • Third Party” means any individual or entity who is not a Party.
    • Third Party Offering” means software or other services provided by Third Parties which are part of the Supplier Services, including Open Source Software.
    • “Users” means Customer’s employees, consultants, agents and Third Parties with whom Customer may transact business and (a) for whom access to the Supplier Services during the Subscription Term have been provided pursuant to this Agreement, (b) who are authorized by Customer to access and use the Supplier Services, and (c) where applicable, who have been supplied user identifications and passwords for such purpose by Customer (or by Supplier at Customer’s request).
  2. ORDERS; LICENSES; AND RESTRICTIONS.
    • Subject to the terms and conditions contained in this Agreement, Customer may access and use the Supplier Services free of charge under an Evaluation License, or pursuant to the pricing terms set forth on the Supplier website or an Order Form.  Unless otherwise specified in an applicable Order Form or on the Supplier website for Services obtained through such Supplier website, (a) Supplier Services are priced based on the volume of transactions purchased by Customer per month, and (b) a specified number of Users may access and use the Supplier Services at any time during the applicable Subscription Term at the same pricing designated for such Subscription Term.  Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Supplier regarding any future functionality or features.  If there is any inconsistency between the terms of an Order Form and this Agreement, then the terms of this Agreement control unless the Order Form expressly states in writing that the terms of the Order Form supersede the terms of the Agreement.
    • Access and Use License. Subject to Customer’s compliance with the terms and conditions contained in this Agreement, Supplier hereby grants to Customer, during the relevant Subscription Term, a limited, non-exclusive, non-transferable right for its Users to access and use the Supplier Services in accordance with the Documentation in each case solely for the Authorized Purposes and not for the benefit of any other person or entity.  Customer’s use of the Supplier Services may be subject to certain limitations, including without limitation the Hash Transaction Cap, which limitations will be specified in the pricing terms on the Supplier website or an Order Form.
    • Restrictions.Customer shall not, directly or indirectly, and Customer shall not permit any User or Third Party to:  (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Supplier Services; (b) modify, translate, or create derivative works based on any element of the Supplier Services or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Supplier Services; (d) use the Supplier Services for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer and Users; (e) remove any proprietary notices from the Documentation; (f) publish or disclose to Third Parties any evaluation of the Supplier Services without Supplier’s prior written consent; (g) use the Supplier Services for any purpose other than its intended purpose; (h) interfere with or disrupt the integrity or performance of the Supplier Services; (i) introduce any Open Source Software into the Supplier Services; or (j) attempt to gain unauthorized access to the Supplier Services or their related systems or networks.  For any prospective User that is not a Customer employee, Customer shall, prior to allowing the prospective User access to the Supplier Services, have the prospective User sign an agreement with Customer containing an equivalent level of protection for Supplier and its intellectual property (the “Services Access Terms”) as this Agreement.  Without limitation, the Services Access Terms must contain provisions that (w) disclaim all express and implied warranties on behalf of Supplier, (x) disclaim and exclude all liability on the part of Supplier for direct, indirect, consequential, incidental and special damages, (y) prohibit the copying, modification, reverse engineering, decompiling and disassembly of the Supplier Services, and (z) terminate the prospective User’s access to the Services upon any termination, expiration or cancellation of this Agreement.  Customer is responsible for compliance by each User with the terms of this Agreement and the Services Access Terms.
    • Reservation of Rights. Except as expressly granted in this Agreement, there are no other licenses granted to Customer, either express, implied or by way of estoppel.  All rights not granted in this Agreement are reserved by Supplier.
  3. THIRD PARTY HOSTING.
    • Third Party Hosting. Supplier may use the services of one or more Third Parties to deliver any part of the Services.  Supplier will pass-through any warranties to the extent that Supplier receives any from its then current Third Party service provider and, at the request of Customer, Supplier shall provide the relevant terms unless they are confidential.  Customer agrees to comply with any acceptable use policies and other terms of any Third Party service provider.
  4. PASSWORDS; SECURITY.
    • Passwords. Supplier will issue to Customer user logins and temporary passwords for each of their Users authorized to access and use the Supplier Services.  Customer shall be, and shall ensure that each of their respective Users are, responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the User to which it was issued.  Customer is solely responsible for any and all access and use of the Supplier Services that occurs using logins and passwords Supplier issues to any of Customer’s Users.  Customer shall restrict its Users from sharing passwords.  Customer agrees to immediately notify Supplier of any unauthorized use of any account or login and password issued to Customer’s Users, or any other breach of security known to Customer.  Supplier shall have no liability for any loss or damage arising from Customer’s failure to comply with the terms set forth in this Section.
    • No Circumvention of Security. Neither Customer nor any User may circumvent or otherwise interfere with any user authentication or security of the Supplier Services.  Customer will immediately notify Supplier of any breach, or attempted breach, of security known to Customer.
    • Security. Supplier will use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data in a manner consistent with what Supplier supplies generally to its other customers.  Notwithstanding the foregoing, Customer acknowledges that, notwithstanding any security precautions deployed by Supplier, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Supplier Services and Customer Data.  Supplier cannot and does not guaranty the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient.  Supplier shall not (a) modify Customer Data, (b) disclose Customer Data except as compelled by law or as expressly permitted in writing by Customer, or (c) access Customer Data except to provide the Services and prevent or address service or technical problems, or at Customer’s request in connection with customer support matters.
  5. CUSTOMER OBLIGATIONS.
    • Customer System. Customer is responsible for (a) obtaining, deploying and maintaining the Customer System, and all computer hardware, software, modems, routers and other communications equipment necessary for Customer and its respective Users to access and use the Supplier Services via the Internet; (b) contracting with Third Party ISP, telecommunications and other service providers to access and use the Supplier Services via the Internet; and (c) paying all Third Party fees and access charges incurred in connection with the foregoing.  Except as specifically set forth in this Agreement or an Order Form, Supplier shall not be responsible for supplying any hardware, software or other equipment to Customer under this Agreement.
    • Acceptable Use Policy. Customer shall be solely responsible for its actions and the actions of its Users while using the Supplier Services.  Customer acknowledges and agrees:  (a) to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of the Supplier Services, including without limitation the provision and storage of Customer Data; (b) not to send or store data on or to the Supplier Services which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain Malicious Code or data that may damage the operation of the Supplier Services or another’s computer or mobile device; (d) not to upload in any way any data regarding an individual’s financial or economic identity, sexual orientation, religious beliefs, medical or physical identity, including any information comprised of either “Protected Health Information” subject to and defined by the Health Insurance Portability and Accountability Act, or an individual’s first name and last name, or first initial and last name, in combination with any one or more of the following data elements that relate to such individual: Social Security number, driver’s license number or state-issued identification card number, financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to an individual’s financial account; (e) not to use the Supplier Services for illegal, fraudulent, unethical or inappropriate purposes; (f) not to interfere or disrupt networks connected to the Supplier Services or interfere with other ability to access or use the Supplier Services; (g) not to distribute, promote or transmit through the Supplier Services any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature; (h) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (i) not to interfere with another customer’s use and enjoyment of the Supplier Services or another person or entity’s use and enjoyment of similar services; (j) not to use the Supplier Services in any manner that impairs the Supplier Services, including without limitation the servers and networks on which the Supplier Services is provided; (k) to comply with all regulations, policies and procedures of networks connected to the Supplier Services and Supplier’s service providers; and (l) to use the Supplier Services only in accordance with the Documentation.  Customer acknowledges and agrees that Supplier neither endorses the contents of any Customer communications, Customer Data, or Other Information (as defined in Section 11.2 below) nor assumes any responsibility for any offensive material contained therein, any infringement of Third Party Intellectual Property Rights arising therefrom or any crime facilitated thereby.  Supplier may remove any violating content posted or stored using the Supplier Services or transmitted through the Supplier Services, without notice to Customer.  Notwithstanding the foregoing, Supplier does not guarantee, and does not and is not obligated to verify, authenticate, monitor or edit the Customer Data, Other Information, or any other information or data input into or stored in the Supplier Services for completeness, integrity, quality, accuracy or otherwise.  Customer shall be responsible and liable for the completeness, integrity, quality and accuracy of Customer Data and Other Information input into the Supplier Services.  Supplier reserves the right to amend, alter, or modify Customer’s conduct requirements as set forth in this Agreement at any time.  Supplier may deliver notice of such updated requirements to Customer via e-mail or through the Supplier Services.  Customer’s continued access to and use of the Supplier Services following issuance of such updated Customer requirements shall constitute Customer’s acceptance thereof.  Supplier may upon written notice to Customer amend this Section 5.2.
    • Accuracy of Customer’s Contact Information; Email Notices. Customer agrees to provide accurate, current and complete information as necessary for Supplier to communicate with Customer from time to time regarding the Services, issue invoices or accept payment, or contact Customer for other account-related purposes. Customer agrees to keep any online account information current and inform Supplier of any changes in Customer’s legal business name, address, email address and phone number.  Customer agrees to accept emails from Supplier at the e-mail addresses specified by its Users for login purposes.  In addition, Customer agrees that Supplier may rely and act on all information and instructions provided to Supplier by Users from the above-specified e-mail address.
    • Temporary Suspension. Supplier may temporarily suspend Customer or its respective Users’ access to the Supplier Services in the event that either Customer or any of its Users is engaged in, or Supplier in good faith suspects Customer or any of its Users is engaged in, any unauthorized conduct (including, but not limited to any violation of this Agreement).  Supplier will attempt to contact Customer prior to or contemporaneously with such suspension; provided, however, that Supplier’s exercise of the suspension rights herein shall not be conditioned upon Customer’s receipt of any notification.  A suspension may take effect for Customer’s entire account and Customer understands that such suspension would therefore include its User sub-accounts.  Customer agrees that Supplier shall not be liable to Customer or Users, or any other Third Party, if Supplier exercises its suspension rights as permitted by this Section.  Upon determining that Customer has ceased the unauthorized conduct leading to the temporary suspension to Supplier’s reasonable satisfaction, Supplier shall reinstate Customer and its respective Users’ access and use of the Supplier Services.  Notwithstanding anything in this Section to the contrary, Supplier’s suspension of Supplier Services is in addition to any other remedies that Supplier may have under this Agreement or otherwise, including but not limited to termination of this Agreement for cause.  Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, Supplier may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach.
  6. AVAILABILITY; SUPPORT SERVICES.
    • Support. Supplier makes a variety of Support Services offerings available to its customers in a separate pricing agreement and will provide Customer with the level of support to which Customer is entitled based on Customer’s purchase as set forth in the pricing terms on the Supplier website or in an Order Form.
    • Evaluation License. No service level agreement is offered or made in connection with this Agreement if the Subscription Term is for an Evaluation License.  Supplier has no obligation to support or maintain the Supplier Services during the Subscription Term of any Evaluation License in any way, correct any errors or deficiencies in the Supplier Services or provide updates, new builds or error corrections.
  7. FEES AND PAYMENT.
    • Fees. Customer agrees to pay all fees specified on the Supplier website or in all applicable Order Forms using one of the payment methods Supplier supports.  Except as otherwise specified in this Agreement or in an Order Form, (a) fees are quoted and payable in United States dollars, (b) fees are based on Services purchased, regardless of actual usage, (c) payment obligations are non-cancelable and fees paid are non-refundable, and (d) the transaction volume tier for a given month cannot be changed during such month.  All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding.  Supplier makes the Services available to Customer under this Agreement free of charge if the Subscription Term is for an Evaluation License.
    • Fees to be paid by Customer shall be calculated based on the volume of transactions purchased as according to the tier structure set forth on the Supplier website or in an Order Form for the Subscription Term  Any unused transactions shall expire at the end of each month and shall not rollover into any subsequent month nor shall they be refunded or credited to Customer.
    • Invoices and Payment. All fees for Supplier Services will be invoiced on an annual basis in advance and in accordance with the Supplier website or the applicable Order Form. Except as otherwise set forth in the applicable Order Form, Customer agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date.  Customer is responsible for providing complete and accurate billing and contact information to Supplier and notifying Supplier of any changes to such information.
    • Overdue Charges. If Supplier does not receive fees by the due date, then at Supplier’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and (b) Supplier may condition future purchases of Services on payment terms shorter than those specified in Section 7.3 (Invoices and Payment).
    • Suspension of Service. If any amounts owed by Customer for the Services are thirty (30) or more days overdue, Supplier may, without limiting Supplier’s other rights and remedies, suspend Customer’s and its Users’ access to the Services until such amounts are paid in full.
    • Payment Disputes. Supplier agrees that it will not exercise its rights under Section 7.4 (Overdue Charges) or Section 5 (Suspension of Service) if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
    • Taxes. “Taxes” means all taxes, levies, imposts, duties, fines or similar governmental assessments imposed by any jurisdiction, country or any subdivision or authority thereof including, but not limited to federal, state or local sales, use, property, excise, service, transaction, privilege, occupation, gross receipts or similar taxes, in any way connected with this Agreement or any instrument, order form or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes imposed on or measured by a Party’s net income. Notwithstanding the foregoing, Taxes shall not include payroll taxes attributable to the compensation paid to workers or employees and each Party shall be responsible for its own federal and state payroll tax collection, remittance, reporting and filing obligations.  Fees and charges imposed under this Agreement or under any order form or similar document ancillary to or referenced by this Agreement shall not include Taxes except as otherwise provided herein.  Customer shall be responsible for all of such Taxes.  If, however, Supplier has the legal obligation to pay Taxes and is required or permitted to collect such Taxes for which Customer is responsible under this Section, Customer shall promptly pay the Taxes invoiced by Supplier unless Customer has furnished Supplier with valid tax exemption documentation regarding such Taxes at the execution of this Agreement or at the execution of any subsequent instrument, order form or agreement ancillary to or referenced by this Agreement.  Customer shall comply with all applicable tax laws and regulations.  Customer hereby agrees to indemnify Supplier for any Taxes and related costs paid or payable by Supplier attributable to Taxes that would have been Customer’s responsibility under this Section if invoiced to Customer.  Customer shall promptly pay or reimburse Supplier for all costs and damages related to any liability incurred by Supplier as a result of Customer’s non-compliance or delay with its responsibilities herein. Customer’s obligation under this Section shall survive the termination or expiration of this Agreement.
  8. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
    • Mutual Representations and Warranties. Each Party represents, warrants and covenants that: (a) it has the full power and authority to enter into this Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) its acceptance of and performance under this Agreement shall not breach any oral or written agreement with any Third Party or any obligation owed by it to any Third Party to keep any information or materials in confidence or in trust.
    • Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 8, THE SERVICES ARE PROVIDED ON AN AS-IS BASIS.  CUSTOMER’S USE OF THE SERVICES IS AT ITS OWN RISK.  SUPPLIER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  THE EXPRESS WARRANTIES MADE BY SUPPLIER IN SECTION 8 ARE FOR THE BENEFIT OF THE CUSTOMER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY.  ANY SOFTWARE PROVIDED THROUGH THE SERVICES IS LICENSED AND NOT SOLD.  NO WARRANTIES OF ANY KIND WHATSOEVER ARE MADE FOR CUSTOMER’S BENEFIT DURING THE SUBSCRIPTION TERM OF ANY EVALUATION LICENSE.

NO AGENT OF SUPPLIER IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF SUPPLIER AS SET FORTH HEREIN.  SUPPLIER DOES NOT WARRANT THAT: (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (E) THE SERVICES WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.  SUPPLIER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.

  1. INDEMNIFICATION.
    • Supplier Indemnity.
      • General. During the Subscription Term (other than with respect to an Evaluation License), Supplier, at its expense, shall defend Customer and its respective officers, directors and employees (the “Customer Indemnified Parties”) from and against all actions, proceedings, claims and demands by a Third Party (a “Third-Party Claim”) alleging that the Supplier Services (not including Third Party Offerings) infringes any copyright or misappropriates any trade secret and shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the Third Party bringing any such Third-Party Claim.  Supplier’s obligations under this Section are conditioned upon (i) Supplier being promptly notified in writing of any claim under this Section, (ii) Supplier having the sole and exclusive right to control the defense and settlement of the claim, and (iii) Customer providing all reasonable assistance (at Supplier’s expense and reasonable request) in the defense of such claim.  In no event shall Customer settle any claim without Supplier’s prior written approval.  Customer may, at its own expense, engage separate counsel to advise Customer regarding a Claim and to participate in the defense of the claim, subject to Supplier’s right to control the defense and settlement.
      • Mitigation. If any claim that Supplier is obligated to defend has occurred, or in Supplier’s determination is likely to occur, Supplier may, in its sole discretion and at its option and expense (a) obtain for Customer the right to use the Supplier Services (not including Third Party Offerings), (b) substitute a functionally equivalent, non-infringing replacement for such Supplier Services, (c) modify the Supplier Services (not including Third Party Offerings) to make them non-infringing and functionally equivalent, or (d) terminate this Agreement and refund to Customer any prepaid amounts attributable to the period of time between the date Customer was unable to use the Supplier Services (not including Third Party Offerings) due to such claim and the remaining days in the then-current Subscription Term.
      • Exclusions. Notwithstanding anything to the contrary in this Agreement, the foregoing obligations shall not apply with respect to a claim of infringement if such claim arises out of (i) Customer’s use of infringing Customer Data; (ii) use of the Supplier Services in combination with any software, hardware, network or system not supplied by Supplier where the alleged infringement relates to such combination, (iii) any modification or alteration of the Supplier Services other than by Supplier, (iv) Customer’s continued use of the Supplier Services after Supplier notifies Customer to discontinue use because of an infringement claim, (v) Customer’s violation of applicable law; and (vi) infringement of Third Party rights by Customer System.
      • Sole Remedy. THE FOREGOING STATES THE ENTIRE LIABILITY OF SUPPLIER WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE SERVICES OR OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF SUPPLIER WITH RESPECT THERETO.  SUPPLIER DOES NOT INDEMNIFY THE CUSTOMER FOR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY ANY THIRD PARTY OFFERINGS.  NO INDEMNITIES OF ANY KIND WHATSOEVER ARE MADE FOR CUSTOMER’S BENEFIT DURING THE SUBSCRIPTION TERM OF ANY EVALUATION LICENSE.
    • Customer Indemnity. Customer shall defend Supplier and its affiliates, licensors and their respective officers, directors and employees (“Supplier Indemnified Parties”) from and against any and all Third Party Claims which arise out of or relate to: (a) a claim or threat that the Customer Data or Customer System (and the exercise by Supplier of the rights granted herein with respect thereto) infringes, misappropriates or violates any Third Party’s Intellectual Property Rights; (b) Customer’s use or alleged use of the Supplier Services other than as permitted under this Agreement; (c) Customer’s use of infringing Customer Data; (d) use of the Supplier Services in combination with any software, hardware, network or system not supplied by Supplier where the alleged infringement relates to such combination; (e) any modification or alteration of the Supplier Services other than by Supplier; (f) Customer’s continued use of the Supplier Services after Supplier notifies Customer to discontinue use because of an infringement claim; (g) Customer’s violation of applicable law; and (h) infringement of Third Party rights by Customer System.  Customer shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the Third Party bringing any such Third-Party Claim.  Supplier will provide (x) prompt notification in writing of any claim under this Section, (y)  sole and exclusive right to control the defense and settlement of the claim, and (z) Supplier’s reasonable assistance (at Customer’s expense and reasonable request) in the defense of such claim.  In no event shall Customer settle any claim without Supplier’s prior written approval.  Supplier may, at its own expense, engage separate counsel to advise Supplier regarding a Third-Party Claim and to participate in the defense of the claim, subject to Customer’s right to control the defense and settlement.
    • Confidential Information. “Confidential Information” means any and all non-public technical and non-technical information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to this Agreement, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information, including but not limited to: (a) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (b) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information; (c) proprietary or confidential information of any Third Party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business; and (d) the terms of this Agreement and any Order Form.  Confidential Information of Supplier shall include the Supplier Services, the documentation, the pricing, and the terms and conditions of this agreement. Confidential Information also includes all summaries and abstracts of Confidential Information.
    • Non-Disclosure. Each Party acknowledges that in the course of the performance of this Agreement, it may obtain the Confidential Information of the other Party.  The Receiving Party shall at all times, both during the Term and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it.  The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under this Agreement.  Each Party agrees to secure and protect the other Party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such Party’s own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees, or other agents who are permitted access to the other Party’s Confidential Information to satisfy its obligations under this Section.  The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees and agents who need access to such Confidential Information in order to effect the intent of this Agreement and who are subject to confidentiality obligations at least as stringent as the obligations set forth in this Agreement.
    • Exceptions to Confidential Information. The obligations set forth in Section 10.2 (Non-Disclosure) shall not apply to the extent that Confidential Information includes information that:  (a) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of this Agreement or any obligation of confidentiality by the Receiving Party.  Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
    • Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
  2. PROPRIETARY RIGHTS.
    • Supplier Services. As between Supplier and Customer, all right, title and interest in the Services and any other Supplier materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and written feedback regarding Customer’s use of the Services, the functionality of the Services, any bugs, errors or deficiencies that Customer encounters regarding the operation and functionality of the Services and any suggestions that Customer may have regarding improvement of such operation and functionality (“Feedback”) proposed by Customer regarding the Services, including all Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Supplier.  Additionally, Customer shall promptly respond to any questions that Supplier may have regarding such Feedback or to any other questions Supplier may have regarding Customer’s use of the Services.  Customer hereby does and will irrevocably assign to Supplier all Feedback and all Intellectual Property Rights in the Feedback.
    • Customer Data. As between Supplier and Customer, all right, title and interest in (a) the Customer Data, (b) other information input into the Supplier Services by Customer (collectively, “Other Information”) and (c) all Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Customer.  Customer hereby grants to Supplier a limited, non-exclusive, royalty-free, worldwide license to use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Supplier to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid license to use, reproduce, modify and distribute the Other Information as a part of the Aggregated Statistics (as defined in Section 11.3 below).  To the extent that receipt of the Customer Data requires Supplier to utilize any account information from a Third Party service provider, Customer shall be responsible for obtaining and providing relevant account information and passwords, and Supplier hereby agrees to access and use the Customer Data solely for Customer’s benefit and as set forth in this Agreement. As between Supplier and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.
    • Aggregated Statistics. Notwithstanding anything else in this Agreement or otherwise, Supplier may monitor Customer’s use of the Services and use data and information related to such use, Customer Data, and Other Information in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Supplier Services (“Aggregated Statistics”). As between Supplier and Customer, all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by Supplier.  Customer acknowledges that Supplier will be compiling Aggregated Statistics based on Customer Data, Other Information, and information input by other customers into the Supplier Services and Customer agrees that Supplier may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or its Confidential Information.
  3. LIMITATION OF LIABILITY.
    • No Consequential Damages. NEITHER SUPPLIER NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUPPLIER OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE SERVICES OR THE RESULTS THEREOF.  SUPPLIER WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
    • Limits on Liability. NEITHER SUPPLIER NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE LESSER OF (a) THE AMOUNTS PAID BY CUSTOMER TO SUPPLIER UNDER THIS AGREEMENT DURING THE PERIOD OF SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, AND (b) THE AMOUNT OF FEES PAID BY CUSTOMER IN A SINGLE SUBSCRIPTION TERM.
    • Essential Purpose. CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 12 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
  4. TERM AND TERMINATION.
    • Term. The term of this Agreement commences on the Activation Date and continues until the expiration or termination of all Subscription Term(s), unless earlier terminated as provided in this Agreement.  The initial term shall extend for a twelve month period from the Activation Date and the term shall automatically renew for additional twelve calendar month periods after the initial term or any renewal term unless one Party gives the other written notice of non-renewal at least thirty (30) days prior to the expiration of the then current Subscription Term.  The pricing during any automatic renewal term shall be the same as that during the immediately prior term unless Supplier has given Customer written notice of a pricing increase at least sixty (60) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter; provided however that no such pricing increase shall occur until after expiration of the then current Subscription Term.  The initial term of the Subscription Term for an Evaluation License shall extend for thirty (30) days and shall automatically renew for additional thirty (30) day periods after the initial term or any renewal term unless one Party gives the other written notice of non-renewal prior to the expiration of the then-current Subscription Term.
    • Termination for Cause. A Party may terminate this Agreement upon written notice to the other Party in the event the other Party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of this Agreement and does not remedy such breach within thirty (30) days after receipt of notice from the other Party or such other period as the Parties may agree.  Upon any termination for cause by Customer, Supplier shall refund Customer any prepaid fees for the remainder of the terminated Subscription Terms after the effective termination date.  Upon any termination for cause by Supplier, Customer shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination.  In no event shall any termination relieve Customer of the obligation to pay any fees payable to Supplier as may be applicable for the period prior to the effective date of termination.
    • Termination for Convenience. Supplier may terminate any Subscription Term for convenience on at least ninety (90) days’ prior written notice to Customer, except Supplier may terminate any Subscription Term for an Evaluation License upon ten (10) days’ prior written notice.
    • Effects of Termination. Upon expiration or termination of this Agreement, (a) Customer’s use of and access to the Services and Supplier’s performance of all Support Services shall cease; (b) all Order Forms shall terminate; and (c) all fees and other amounts owed to Supplier as may be applicable shall be immediately due and payable by Customer.  Supplier shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.  In addition, within ten (10) days of the effective date of termination each Receiving Party shall: (a) return to the Disclosing Party, or at the Disclosing Party’s option, the Receiving Party shall destroy, all items of Confidential Information (other than the Customer Data) then in the Receiving Party’s possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to Disclosing Party that it has complied with the foregoing.
    • Survival. This Section and Sections 1, 2.2, 7, 8, 9, 10, 11, 12, 13.5, and 14 shall survive any termination or expiration of this Agreement.
    • Notices. Supplier may give notice to Customer by means of a general notice through the Supplier Services interface, electronic mail to Customer’s e-mail address on record with Supplier, or by written communication sent by email as provided above or by first class postage prepaid mail or nationally recognized overnight delivery service to Customer’s address on record with Supplier. Customer may give notice to Supplier by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to Supplier, 2955 Campus Drive, # 110, San Mateo, CA 94403, Attention: CEO.  Notice shall be deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
    • Governing Law. This Agreement and the rights and obligations of the Parties to and under this agreement shall be governed by and construed under the laws of the United States and the State of California as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles.  The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.  Any dispute arising out of or in connection with this Agreement, including but not limited to any question regarding its existence, interpretation, validity, performance, or termination, or any dispute between the Parties arising from the Parties’ relationship created by this Agreement, shall be referred to and finally resolved by arbitration administered by the American Arbitration Association under its rules.  The number of arbitrators shall be one (1).  The Parties shall endeavor to agree upon the sole arbitrator and jointly nominate the arbitrator.  If the Parties cannot agree upon the sole arbitrator within a time prescribed by AAA, the Parties shall request the AAA to propose five (5) arbitrators and each Party shall rank the proposed arbitrators.  The AAA shall appoint an arbitrator from the list of five (5), based upon the Parties’ rankings.  The seat, or legal place of arbitration shall be California, United States.  Notwithstanding the foregoing, Supplier has the right to pursue equitable relief in the state and federal courts located in California, and Customer agrees to the exclusive jurisdiction and venue of such courts.
    • No Solicitation of Employees. Customer agrees that, so long as the Subscription Term remains in effect, and for a period of one (1) year following the last Subscription Term hereunder to terminate or expire, it will not directly solicit for employment the employees of Supplier without Supplier’s prior written consent; provided, however, that the foregoing prohibition shall not preclude the hiring by Customer of any individual who responds to a general solicitation or advertisement, whether in print or electronic form, only job postings and social networking sites.
    • S. Government Customers. If Customer is a Federal Government entity, Supplier provides the Supplier Services, including related software and technology, for ultimate Federal Government end use solely in accordance with the following:  Government technical data rights include only those rights customarily provided to the public with a commercial item or process and Government software rights related to the Supplier Services include only those rights customarily provided to the public, as defined in this Agreement.  The technical data rights and customary commercial software license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).  If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included in this Agreement.
    • Export. The Services utilize software and technology that may be subject to United States and foreign export controls.  Customer acknowledges and agrees that the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”).  The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Supplier Services, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National.  The Supplier Services may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000.  Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.  Supplier and its licensors make no representation that the Supplier Services is appropriate or available for use in other locations.  Any diversion of the Customer Data contrary to law is prohibited.  None of the Customer Data, nor any information acquired through the use of the Supplier Services, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.
    • Anti-Corruption; OFAC. Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of Supplier in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.  If Customer learns of any violation of the above restriction, it will use reasonable efforts to promptly notify Supplier.  Customer represents and warrants to Supplier that none of (a) Customer, (b) each person or entity owning an interest in Customer nor (c) their respective personnel are (x) currently identified on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, U.S. Department of the Treasury (“OFAC”) nor on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation, and (y) a person or entity with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States.
    • Waiver. No term or provision of this Agreement shall be considered waived by either Party, and no breach excused by either Party, unless such waiver or consent is in writing signed on behalf of the Party against whom the waiver is asserted.  No consent by either Party to, or waiver of, a breach by either Party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either Party.
    • Severability. If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.
    • Assignment. Customer may not assign its rights or delegate its obligations under this Agreement or any Order Forms to any Third Party, whether voluntarily or by operation of law or otherwise (including in connection with any merger or acquisition involving Customer), without the prior written consent of Supplier, such consent not to be unreasonably withheld, and subject to Customer paying any applicable transfer or set-up fees.  Any purported assignment or transfer in violation of this Section shall be void. Subject to the foregoing restrictions, this Agreement will bind and benefit the Parties and their successors and permitted assigns.
    • Relationship of the Parties. Supplier is an independent contractor to Customer.  There is no relationship of agency, partnership, joint venture, employment, or franchise between the Parties.  Neither Party has the authority to bind the other or to incur any obligation on its behalf.
    • Attorneys’ Fees. In any action to enforce this Agreement, the prevailing Party shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.
    • Force Majeure. Except for Customer’s payment obligations, neither Party shall be liable for any failure or delay in performance under this Agreement due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such Party of this Agreement); or any other event beyond the reasonable control of the Party whose performance is to be excused.
    • Entire Agreement. This Agreement, including all applicable Order Forms, constitutes the entire agreement between the Parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.