Terms and Conditions

ITHOS GLOBAL

TERMS OF SERVICE

These Terms of Service (“Terms”) constitute a legal agreement between the person or organization agreeing to these Terms (“Customer” or “Y/you”) and Permanent Software Group Canada Ltd or such other Affiliated entity signing the Order (the “Company,” “Us” or W/we”).  By signing an Order, accepting these Terms, or using the Services, you represent that you have the authority to bind the Customer to the Order, these Terms, and any applicable schedules, exhibits, or appendices incorporated or referenced herein (collectively, the “Agreement”).

1. DEFINITIONS
   1. 1. “Affiliate” of a party means an entity which, directly or indirectly is controlled by, controls or is under common control with that party where “control” of the party or other entity is the possession of the power to direct or cause the direction of the management and policies of the party or other entity, whether by voting, contract or otherwise.
   1. 2. “Agreement” means these terms and conditions including all referenced Exhibits or Annexes hereto, and Orders as mutually executed by the parties, and any amendments to the foregoing executed by authorized representatives of the parties. In the event of a conflict between other provisions of this Agreement and an Order, the provisions of the Order will govern and control, but only with respect to the services provided under that Order. No provisions of either party’s pre-printed purchase orders, acknowledgements, or click-through terms may modify this Agreement, and such other or additional terms or conditions are void and of no effect.
   1. 3. “Content Products” means all defined data products (such as Ithos Data Systems and the Compliance Engine, and any other data products) as detailed in Schedule A. The definition of Content Products also includes updates to the Content Products provided to Customer by Ithos.
   1. 4. “Customer Content” means content, data, and information, including text, graphics, videos, or other material, submitted, uploaded, imported, or otherwise provided to or through the Services by Customer or by a third party on behalf of or for the benefit of Customer, including Customer’s customers, prospective customers and users of the Services.
   1. 5. “Documentation” means Company’s then-current generally available documentation, specifications, and user manuals for the Services which can be located at https://ithosglobal.com/documentation/ or such other URL as Company may provide from time to time, as well as any documentation included in or attached to any Order Form or such other Services-related documents provided by Company to Customer.
   1. 6. “Overages” means when any use limit is exceeded during the subscription term of an Order Form
   1. 7. “User” means an individual employee, consultant, contractor, or agent of Customer who has been authorized by Customer to use the Services on behalf of Customer and/or its affiliates.

• ACCESS AND USE OF THE SERVICES.
  • Our Provision of the Services.  We will make our software-as-a-service offerings and Content Products as described in Schedule A (the “Services”) available to you pursuant to the terms of the Agreement and the Documentation.  We will use commercially reasonable efforts to make the Services available 24×7.  You acknowledge that your use of the Services requires third-party hardware, software, internet and/or telecommunications access (which may involve extra charges), and that your ability to access and use the Services may be affected by your choices and the performance of these products and services.  
• Changes to Services. We reserve the right to enhance, upgrade, improve, modify or discontinue features of our Services as we deem appropriate and in our discretion. We will not materially reduce the core functionality or discontinue any Services unless we provide you with prior written notice. We may offer additional functionality to our standard Services or premium feature improvements for an additional cost.  You agree to use commercially reasonable efforts to utilize our most current version/release of the Services.
• Your Registration for the Services.  You may be required to provide information about yourself in order to register for and/or use certain Services. You agree that any such information shall be accurate. You may also be asked to choose a username and password. You are entirely responsible for maintaining the security of your username and password and agree not to disclose such to any third party.
• Your Use of the Services. You agree to use the Services in accordance with the use levels by which we measure, price and offer our Services as posted on our websites, your Order, or in the Documentation (“Use Levels”). We grant you a limited right to use our Services only for business and professional purposes. Your Affiliates, third party agents, contractors or service providers may use the Services as Users under your account, provided that you shall take full responsibility for such third parties’ compliance with this Agreement.  If you submit an Order on behalf of your Affiliate, you warrant that you have the authority to bind that Affiliate and you will be liable if your Affiliate does not comply with the Agreement. In addition, your Affiliates may submit their own Orders as mutually agreed with us, and this creates a separate agreement between the Affiliate and us that incorporates this Agreement and treats the Affiliate as the Customer.   
• Limitations on Your Use. By using our Services, you agree on behalf of yourself, your Affiliates and Users, not to (i) modify, prepare derivative works of, or reverse engineer, our Services; (ii) knowingly or negligently use our Services in a way that abuses or disrupts our networks, user accounts, or the Services; (iii) transmit through the Services any harassing, indecent, obscene, or unlawful material; (iv) market, or resell the Services to any third party; (v) use the Services in violation of applicable laws, or regulations; (vi) use the Services to send unauthorized advertising, or spam; (vii) harvest, collect, or gather user data without their consent; (viii) transmit through the Services any material that may infringe the intellectual property, privacy, or other rights of third parties; or (ix) use the Services to commit fraud or impersonate any person or entity.
• Responsibility for Users. You are responsible for the activities of all Users who access or use the Services through your account and you agree to ensure that any such Users will comply with the terms of this Agreement.  If You become aware of any violation of this Agreement in connection with use of the Services by any person, please contact us.
• Professional Services.  We will, upon execution of a mutually agreed Statement of Work (“SOW”) provide professional services as set forth in Exhibit A. 
• ORDERS, FEES AND PAYMENT.
  • Orders. You may order Services using our then-current ordering processes (“Order”). All Orders are effective on the earlier of (i) the date you submit your Order, or (ii) the date on the signature block of the Order (“Effective Date”). Acceptance of your Order may be subject to our verification and credit approval process. Each Order shall be treated as a separate and independent Order.  
  • Fees and Payment. You agree to pay all applicable, undisputed fees for the Services and Overages on the terms set forth in an Order Form, this Agreement, or your invoice. Except as set forth in Sections 4.3 and 8 below, any payments you make to us for access to the Services are final and non-refundable. You are responsible for all fees and charges imposed by third parties such as hardware, software, internet, voice and/or data transmission providers related to your access and use of the Services. You are responsible for providing accurate and current billing, contact and payment information to us. We may suspend or terminate your Services if at any time we determine that your payment information is inaccurate or not current.  We reserve the right to update the price for Services at any time after your Initial Term in an amount not to exceed the greater of the increase in CPI over the prior term or 5%, and price changes will be effective as of your next billing cycle. We will give you notice of any price increase at least 60 days in advance of such increase.
  • Taxes and Withholdings. You are responsible for all applicable sales, services, value-added, goods and services, withholding, tariffs, or any other similar taxes or fees (collectively, “Taxes and Fees”) imposed by any government entity or collecting agency based on the Services, except those Taxes and Fees based on our net income, or Taxes and Fees for which you have provided an exemption certificate. In all cases, you will pay the amounts due under this Agreement to us in full without any right of set-off or deduction.
  • Disputes; Delinquent Accounts. You must notify us of any fee dispute within 15 days of the invoice date, and once resolved, you agree to pay those fees within 15 days.  We may, on 10 days’ notice to you, suspend your Services if you do not pay undisputed fees by their due date, and you agree to reimburse us for all reasonable costs and expenses, including overdraft charges, collection costs and attorneys’ fees, incurred in collecting delinquent amounts. You further agree that we may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
• TERM AND TERMINATION.

• Term. The initial term commitment for your purchase of Services will be as specified on an Order (“Initial Term”) and begins on the Effective Date. If the Order is silent, the Initial Term shall be 36 months.  After the Initial Term, the Services will automatically renew for additional 12-month periods (“Renewal Terms”), unless either party provides notice of non-renewal at least 30 days before the current term expires. We may agree to align the invoicing under multiple Orders, but this will not reduce the term of any Order. Terminating specific Services does not affect the term of any other Services still in effect.

• Termination for Cause. Either party may terminate the Agreement (i) if the other party breaches its material obligations and fails to cure within 30 days of receipt of written notice, or (ii) where permitted by applicable law, if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business.  In addition, we may suspend access or terminate immediately if we believe the Services are being used by Customer or its Users in violation of applicable law or Sections 2.5 or 5.2 of this Agreement.

• Effect of Termination. If the Agreement or any Services are terminated, you will immediately discontinue all use of the terminated Services, except that we will provide you with limited access to the Services for a period of at least 30 days solely to enable you to retrieve your Customer Content from the Services. Upon your request prior to the end of such 30-day period, we will either securely destroy or transmit your Customer Content to You.  We have no obligation to maintain your Customer Content after such 30-day period. Neither party will be liable for any damages resulting from termination of the Agreement, and termination will not affect any claim arising prior to the termination date. If we discontinue Services or materially reduce the core functionality in accordance with Section 2.2 above, and you elect to terminate the applicable Order, we will provide you with a pro rata refund of any prepaid, unused fees. Notwithstanding anything to the contrary herein, the terms of this Agreement shall continue to apply to any Order that is still in effect.

• Survival. The provisions of Sections 3 (Orders, Fees and Payment), 4.3 (Effect of Termination), 5 (Proprietary Rights), 9 (Indemnification), 10 (Limitation on Liability), 13.2 (Arbitration), 13.5 (Notices), and survive any termination of the Agreement.

•  PROPRIETARY RIGHTS.

• Our Proprietary Rights and Marks. You acknowledge that we or our licensors retain all proprietary right, title and interest in the Services, all Documentation, all Content Products, our name, logo or other marks (together, the “Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. Except for the express limited rights set forth in this Agreement, no right, title or interest in our Services, Documentation, Content Products or Marks is granted to you.  You agree that you will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part our Marks or is similar to any of these.

• Your Customer Content. You retain all rights to your Customer Content and are solely responsible for the Customer Content sent or transmitted by You or displayed or uploaded by You in using the Services and for compliance with all Laws pertaining to the Customer Content, including, but not limited to, Laws requiring You to obtain the consent of a third party to use the Customer Content and to provide appropriate notices of third-party rights. You hereby grant us a worldwide, royalty-free, non-exclusive license to use, modify, reproduce, and distribute your Customer Content in order to provide and operate the Services. We will not view, access or process any of your Customer Content, except: (x) as authorized or instructed by you or your users in this Agreement or in any other agreement between the parties, or (y) as required to comply with our policies, applicable law, or governmental request.

• Feedback.  You agree that We shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, assignable, irrevocable, and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from you, our Affiliates and Users (“Feedback”). We also reserve the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by your Feedback.

• Aggregated Statistics.  Notwithstanding anything to the contrary in this Agreement, you acknowledge and agree that we may collect and compile data and information related to your use of the Services to be used by us in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics“). As between us and you, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by us. You agree that we may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify you or your Customer Content.
• YOUR PRIVACY AND SECURITY. 
  • Security Safeguards.  Each party shall maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of your Customer Content and any associated personal data that is collected and/or processed through the Services.  On our part, those safeguards will include measures designed to prevent unauthorized access, use, modification, deletion and disclosure of Customer Content. Customer (not us) bears sole responsibility for adequate security, protection and backup of Customer Content when in Customer’s or its representatives’ or agents’ possession or control.
  • Privacy Laws.  To the extent that Customer Content contains “personal information” that is subject to the California Consumer Privacy Act of 2018, its implementing regulations, and any amendments thereto (collectively, the “CCPA”), or any other substantially similar privacy laws, Company agrees that it shall comply with all such laws and process such personal information as a service provider (as defined under the CCPA) and shall not (a) retain, use or disclose personal information for any purpose other than the purposes set out in this Agreement and/or as permitted by the CCPA; or (b) “sell” (as defined and understood within the requirements of the CCPA) personal information.
• CONFIDENTIALITY. 
  • “Confidential Information” shall mean all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. All Customer Content will be deemed Confidential Information of Customer without any marking or further designation. All Company technology and the terms and conditions of this Agreement will be deemed Confidential Information of Company without any marking or further designation. Confidential Information shall not include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. 
  • Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party shall, to the extent legally permitted, provide Disclosing Party with advance written notification, and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. 
• WARRANTIES. 
  • WE PROVIDE OUR SERVICES USING A COMMERCIALLY REASONABLE LEVEL OF CARE AND WARRANT THAT THE SERVICES WILL MATERIALLY CONFORM TO THE DOCUMENTATION UNDER NORMAL USE.  WE DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF OUR SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA, OR (ii) OUR SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS. OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE, AT OUR SOLE OPTION AND SUBJECT TO APPLICABLE LAW, TO PROVIDE CONFORMING SERVICES, OR TO TERMINATE THE NON-CONFORMING SERVICES AND PROVIDE A PRO-RATED REFUND OF ANY PREPAID FEES FROM THE DATE YOU NOTIFY US OF THE NON-CONFORMANCE THROUGH THE END OF THE REMAINING TERM. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE.

• THE DATA PROVIDED THROUGH THE CONTENT PRODUCTS HAS BEEN OBTAINED FROM SELECTED GOVERNMENT SOURCES, THIRD PARTY VENDORS AND OTHER RESOURCES THAT WE BELIEVE TO BE DEPENDABLE, AND WE HAVE OTHERWISE USED COMMERCIALLY REASONABLE EFFORTS TO PROVIDE FOR THE ACCURACY AND COMPLETENESS OF SUCH DATA AS OF THE DATE OF DELIVERY.  HOWEVER, THE NATURE AND VOLUME OF SUCH DATA ARE SUCH THAT (I) OCCASIONAL ERRORS OF FACT, OMISSION AND JUDGMENT CANNOT BE COMPLETELY EXCLUDED AND (II) THE ACCURACY AND COMPLETENESS OF SUCH DATA AFTER THE DATE OF DELIVERY CANNOT BE ASSURED.  LICENSEE ACKNOWLEDGES AND AGREES THAT ALL USE OF SUCH DATA IS “AS IS” AND “WITH ALL FAULTS.”

• INDEMNIFICATION. 
  • Our Indemnity.  We will indemnify and defend you against any third-party claim alleging that any of the Services infringes upon any patent or copyright, or violates a trade secret of any such third-party (an “IP Claim”), and we agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim.  You will promptly notify us of any claim and cooperate with us in defending the claim. We will reimburse you for reasonable expenses incurred in providing any cooperation or assistance. We will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring you to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) you may join in the defense with your own counsel at your own expense.
    • If (i) Company becomes aware of an actual or potential IP Claim, or (ii) Customer provides Company with notice of an actual or potential IP Claim, Company may (or in the case of an injunction against Customer, shall), at Company’s sole option and determination: (a) procure for Customer the right to continue to use the Services; or (b) replace or modify the Services with equivalent or better functionality so that Client’s use is no longer infringing; or (c) if (a) or (b) are not commercially reasonable, terminate provision of the Services and refund to Customer any pre-paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to Company.
    • The obligations in Sections 8.1 do not extend to (i) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Services with other products, software or services not provided by Company; (ii) any IP Claim related to any Customer Data, or (iii) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.

• Your Indemnity.  You will indemnify and defend us against any third-party claim resulting from a breach of Sections 2.5 or 5.2 or alleging that any of your Customer Content infringes upon any patent or copyright, or violates a trade secret of any party, and you agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim.  We will promptly notify you of any claim and cooperate with you in defending the claim. You will reimburse us for reasonable expenses incurred in providing any cooperation or assistance. You will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring us to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) we may join in the defense with our own counsel at our own expense.

1. LIMITATION ON LIABILITY.

1. LIMITATION ON INDIRECT LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY OR OTHER SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, OR (iv) LOST PROFITS, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.

1. LIMITATION ON AMOUNT OF LIABILITY. EXCEPT FOR A PARTY’S  BREACH OF SECTIONS 2.5, 5.1, 5.2, 7 (EXCLUDING CLAIMS RELATED TO CUSTOMER CONTENT), A PARTY’S INDEMNIFICATION OBLIGATION UNDER SECTION 9, A LIABILITY UNDER SECTION 10.3, OR A PARTY’S GROSS NEGLIGENCE, WILLFUL MIDCONDUCT OR FRAUD, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS ARISING OUT OF THIS AGREEMENT IS LIMITED TO THE SUM OF THE AMOUNTS PAID FOR THE APPLICABLE SERVICE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY (“GENERAL LIABILITY CAP”). THE FOREGOING DOES NOT LIMIT YOUR OBLIGATIONS TO PAY ANY UNDISPUTED FEES AND OTHER AMOUNTS DUE UNDER ANY ORDER.

1. SUPERCAP FOR DATA PROTECTION CLAIMS.  IN THE CASE OF “DATA PROTECTION CLAIMS,” EACH PARTY’S AND ITS AFFILIATES’ TOTAL LIABILITY TO THE OTHER PARTY AND ITS AFFILIATES FOR ALL CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) SHALL NOT EXCEED TWO TIMES (2X) THE “GENERAL LIABILITY CAP”.  FOR THE PURPOSES OF THIS AGREEMENT, “DATA PROTECTION CLAIMS” MEANS ANY CLAIMS ARISING FROM A PARTY’S BREACH OF SECTION 6.1 (SECURITY SAFEGUARDS), SECTION 7 (CONFIDENTIALITY IN RELATION TO CUSTOMER CONTENT), OR BREACH OF APPLICABLE DATA PROTECTION LAWS WHICH RESULTS IN THE UNAUTHORIZED ACCESS TO OR USE OF ANY CUSTOMER CONTENT.

1. IN NO EVENT SHALL EITHER PARTY (OR ITS RESPECTIVE AFFILIATES) BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE DATA PROTECTION CLAIMS CAP.

1. COMPLIANCE WITH LAWS. In connection with the performance, access and use of the Services under the Agreement, each party agrees to comply with all applicable laws, rules and regulations including, but not limited to export, privacy, data protection and anti-bribery laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. Further, Customer shall not permit its users to access or use any Service or Content Product in a U.S. embargoed country or in violation of any U.S. export law or regulation. If necessary and in accordance with applicable law, we will cooperate with local, state, federal and international government authorities with respect to the Services and Content Products. Notwithstanding any other provision in these Terms, we may immediately terminate the Agreement for noncompliance with applicable laws.
2. SUSPENSION OF SERVICES.  We reserve the right to suspend the Services or restrict functionalities if (a) we reasonably believe that you, your Affiliates or Users have materially violated this Agreement, or (b) we reasonably determine that the security of our Services or infrastructure may be compromised due to hacking attempts, denial of service attacks, or other malicious activities. Unless legally prohibited, we will use commercially reasonable efforts to notify you when taking any of the foregoing actions. We shall not be liable to you, your Affiliates or Users or any other third party for any such suspension of Services or reduced functionality. Any suspected fraudulent, abusive, or illegal activity by you, your Affiliates or Users may be referred to law enforcement authorities at our sole discretion.
3. ADDITIONAL TERMS.

1. Dispute Resolution. Each party agrees that be­fore it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it shall provide written notice to the other party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the parties which are allegedly being breached). Within thirty (30) days after such notice, knowledgeable executives of the parties shall hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section shall not apply to claims subject to indemnification under Section 9 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.

1. Arbitration.  If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time of the commencement of the informal dispute resolution process described above, then either party may initiate binding arbitration by a single arbitrator before the American Arbitration Association using its Commercial Arbitration Rules as the sole means to resolve claims subject to the terms set forth below.  YOU AGREE THAT ANY DISPUTE OR CLAIM RELATING TO THIS AGREEMENT WILL BE RESOLVED BY BINDING ARIBTRATION RATHER THAN IN COURT AND ATHAT YOU WILL ARBITRATE WITH US ONLY IN YOUR INDIVIDUAL OR CORPORATE CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS.  Any arbitration claim must be brought within one (1) year of the claim arising.  The arbitrator shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including but not limited to any claim that all or any part of this Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You understand and agree that unless you can demonstrate that arbitration in Delaware would create an undue burden for you, any arbitration hearing will be held in Delaware.  You understand and agree that by entering into this Agreement, each party is waiving the right to a jury trial or a trial before a judge in a public court. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.  Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (meaning patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights) or Confidential Information.  Furthermore, you have the right to opt out and not be bound by these arbitration provisions by sending written notice of your decision to opt out to the following address [address] within 30 days of the date of this Agreement.

1. Governing Law and Jurisdiction.  These Terms will be governed by the laws of the State of Delaware.  For any dispute not subject to arbitration, each party agrees to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Delaware.

1. Assignment. Neither party may assign its rights or delegate its duties under the Agreement either in whole or in part without the other party’s prior written consent, which shall not be unreasonably withheld, except that either party may assign the Agreement to an affiliated entity, or as part of a corporate reorganization, consolidation, merger, acquisition, or sale of all or substantially all of its business or assets to which this Agreement relates. Any attempted assignment without consent will be void. The Agreement will bind and inure to the benefit of each party’s successors or assigns.

1. Notices. Notices must be sent by personal delivery, overnight courier, or registered or certified mail. We may also provide notice to the email last designated on your account, electronically via postings on our website, in-product notices, or via our self-service portal or administrative center. Unless specified elsewhere in this Agreement, notices should be sent to us at [address], and we will send notices to the address last designated on your account. Notice is given (a) upon personal delivery; (b) for overnight courier, on the second business day after notice is sent, (c) for registered or certified mail, on the fifth business day after notice is sent, (d) for email, when the email is sent, or (e) if posted electronically, upon posting.

1. Entire Agreement; Order of Precedence. The Agreement sets forth the entire agreement between you and us relating to the Services, Content Products, and or Professional Services and supersedes all prior and contemporaneous oral and written agreements, except as otherwise permitted. If there is a conflict between an executed Order, this Agreement, and the Documentation, in each case, as applicable, the conflict will be resolved in that order, but only for the specific Services described in the applicable Order. Nothing contained in any document submitted by you will add to or otherwise modify the Agreement.

1. Updates to Terms.   We reserve the right to propose changes to this Agreement that are generally applicable to all customers at any time and will, if such changes are material, provide at least thirty (30) days’ notice prior to any new terms taking effect. What constitutes a material change will be determined in our sole discretion. By continuing to access or use our Services after any revisions become effective, you agree to be bound by the revised terms of the Agreement. If you do not agree to the new terms, you are no longer authorized to use the Services.  In the event of a material change of terms, you may terminate the Agreement by giving us written notice within thirty (30) days of our notice of the change of terms and we shall refund to you any pre-paid fees that are applicable to the period after such termination.

1. General Terms. If any term of this Agreement is not enforceable, this will not affect any other terms. Both parties are independent contractors and nothing in this Agreement creates a partnership, agency, fiduciary or employment relationship between the parties. No person or entity not a party to the Agreement will be a third-party beneficiary or have the right to modify the Agreement or to make commitments binding on us. Failure to enforce any right under the Agreement will not waive that right. Unless otherwise specified, remedies are cumulative. The Agreement may be agreed to online or executed by electronic signature and in one or more counterparts. No party will be responsible for any delay or failure to perform under the Agreement due to force majeure events (e.g. natural disasters; terrorist activities, activities of third party service providers, labor disputes; and acts of government) and acts beyond a party’s reasonable control, but only for so long as those conditions persist.

Last updated:  October 20, 2022