This Master Hosted Services Agreement (the “Agreement”) is effective as of the effective date of an applicable signed order form (such form an “Order Form” and such date the “Effective Date”) and is by and between Presta Technologies Inc., a Delaware corporation with a place of business at 1840 W. 28th Street, Cleveland, OH 44113 (“Provider”), and the customer set forth on the Order Form (“Customer”) (each a “Party” and together the “Parties”). In the event of any inconsistency or conflict between the terms of the MSA and the terms of any Order Form, the terms of the Order Form control.
Definitions. The following definitions (and additional definitions provided below) will apply to this Agreement:
“Affiliate” of a Party means (i) any entity that such Party controls, (ii) any entity that controls such Party, or (iii) any entity under common control with such Party. To “control” means owning or otherwise controlling 50% or more of the voting securities or rights of an entity, or otherwise having the power to dictate its activities.
“Anonymous Data” means Usage Data that has been anonymized and does not identify Customer or Customer Users as the source of such Usage Data.
“API” means Provider’s application programming interface, the method for integrating the Platform with the Customer’s platform or website or third-party tools used by Customer.
“Confidential Information” means non-public information, technical data or know-how of a Party and/or its Affiliates, which is furnished to the other Party in written or tangible form in connection with this Agreement. Oral disclosure will also be deemed Confidential Information if it would reasonably be considered to be of a confidential nature or if it is confirmed at the time of disclosure to be confidential. Notwithstanding the foregoing, Confidential Information does not include information which is: (i) already in the possession of the receiving Party and not subject to a confidentiality obligation to the providing Party; (ii) independently developed by the receiving Party; (iii) publicly disclosed or available through no fault of the receiving Party; (iv) rightfully received by the receiving Party from a third party that is not under any obligation to keep such information confidential; (v) approved for release by written agreement with the disclosing Party; or (vi) is Anonymous Data.
“Customer” means the legal entity or individual that enters into this Agreement with Provider, as indicated in the signature block hereto or in an applicable Order.
“Customer Account” means Customer’s account used to access the Software, and all usernames relating thereto, including any Customer User accounts.
“Customer Representative” means the Customer Users designated by Customer in an applicable Order as authorized to create Customer User accounts, administer Customer’s use of the Service and otherwise represent Customer for the purpose of this Agreement.
“Customer-Supplied Content” means graphics, text, audio, photos, software, music, sounds, video or similar information or material provided or submitted by or on behalf of Customer to Provider or the Software in the course of utilizing the Software or in connection with this Agreement.
“Customer User” means one of Customer’s employees, representatives, consultants, contractors, agents, customers, clients, and other persons expressly permitted by Customer in connection with Customer’s business who are authorized to access the Software.
“Documentation” means the manuals, specifications, FAQs and other written and electronic materials describing the functionality, features, and operating characteristics, maintenance, operation, and use of the Software, as provided or made available by Provider.
“Fees” means the fees set forth in the applicable Order for the Services, including any Transaction Fees.
“Order” means an order form, describing among other things, the elements of the Services to which Customer is subscribing or the Services which are to be rendered to Customer, the Fees associated therewith, and certain additional terms applicable to the Services being ordered under said Order.
“Platform” means Provider’s software platform known as “Presta.”
“PlatformAgreements” means the Privacy Policy and the Provider’s “Terms of Service” and any other policies or agreements that Provider determines are applicable to the end users of the Software, as may be updated by Provider from time to time.
“PrivacyPolicy” means the Provider’s Privacy Policy, as may be updated by Provider from time to time, the current version of which is available on the Software.
“ProfessionalServices” means, other than the Support Services, software consulting and management services, information technology services, onboarding services, or other stipulated services provided to Customer as identified in an Order.
“Services” means, collectively, all services provided or made available to Customer by Provider under this Agreement or any exhibit or Order hereto, including but not limited to the access to and functionality of the Software, the Support Services and the Professional Services.
“Software” means the Platform including any cloud-based elements and the associated API, and extensions or modules thereto, the relevant functionality, content (excluding Customer-Supplied Content), concepts, features, and documentation related thereto, as well as all updates and customizations (excluding Customer Customizations (as defined herein)) to any of the foregoing.
“SupportServices” means the support services described in Exhibit A.
“Term” means the length of this Agreement as defined in the applicable Order.
“UsageData” means any information or data collected from Customer or any Customer User by Provider or the Software about such Customer’s or Customer User’s use of the Software during the course of utilizing the Software.
Provision of Services.
Services. Subject to payment in full of the Fees due to Provider, and Customer’s compliance with this Agreement, Provider will provide the Services to Customer, as more fully described in Orders that Provider and Customer may enter into from time to time.
Onboarding. Customer shall reasonably cooperate with Provider to onboard Customer to the Software and grant access to the API, including providing credentials as necessary and reasonable assistance if requested.
Access and Availability.
Authorized Users. Only Customer Users may access and use the Software. Customer is responsible for maintaining the security and confidentiality of Customer Accounts. Customer agrees to notify Provider immediately of any unauthorized use of any Customer Accounts or any other known or suspected breach of security. Customer acknowledges that prior to use of the Software end users may be presented with, and required to agree to, the Platform Agreements. In the event of any conflict between the terms of a Platform Agreement and the terms of this Agreement, the terms of the relevant Platform Agreement shall control.
Availability.
Provider does not guarantee, represent or warrant that access to the Software or Services will be uninterrupted or error-free, and Provider does not guarantee that Customer will be able to access or use all of the Software or Services features at all times. Provider shall make reasonable efforts to notify Customer of system outages and scheduled downtime.
Provider shall make reasonable efforts to ensure that the Software is available in accordance with the terms of this Agreement.
Suspension. Provider may suspend or interrupt the Services, including but not limited to access to the Software, in whole or in part, if (i) Customer or Customer Users are using the Software or Services in violation of this Agreement or in violation of the law; (ii) Customer’s or Customer Users’ system or account has been compromised or unlawfully accessed; (iii) suspension of the Software or Services is necessary to protect the infrastructure of Provider or its Affiliates; (iv) suspension is required under the law; or (v) Customer fails to pay the Fees applicable under this Agreement within ten (10) days of when due, provided that Customer has been notified in writing of its failure to pay and given ten (10) days to remedy this failure.
Support Services.
Support. Provided that Customer has elected to subscribe to the Support Service in an Order, Provider will make reasonable efforts to provide the Support Services in accordance with their description in the applicable Order, if any.
Professional Services.
Services. In the event that Customer requests Professional Services that Provider desires to render, the Parties shall execute an Order covering such Professional Services.
Estimates. Unless stated otherwise in an applicable Order, any estimates of time provided in connection with deliverables or Services, are good faith projections, but are not guarantees.
Rates. Unless otherwise agreed to by the Parties in writing, in the event that Provider provides Professional Services on a “time and materials” rate basis, Provider shall charge Customer at Provider’s standard rates then in effect. In the event that Provider provides Professional Services hereunder on a “fixed fee” rate basis, such fixed fee will cover only the specific tasks, expenses, and deliverables that the Order defines as included within the fixed fee. Unless otherwise agreed to by the Parties in writing, any and all deliverables that Customer requests that fall outside the scope of the Order, or are otherwise not included within such fixed fee payment schedule, will be provided on a time and materials basis at Provider’s standard rates then in effect. Notwithstanding any agreement on a fixed fee or time and materials estimate, prices are subject to change if certain assumptions and responsibilities identified in an Order are not met by Customer.
Ownership; Licenses.
Retention by Provider. Provider retains all right, title and interest in and to the Software and Services. Title to and ownership of any modifications, enhancements, upgrades, updates, improvements, customizations or developments to the Software or Services (“Improvements”) shall be held exclusively by Provider. In addition, Customer grants Provider the right and license to make, use, sell, reproduce, modify, sublicense, disclose, distribute and otherwise exploit error reports, corrections, feedback and suggestions provided by Customer concerning the Software or Services and Improvements based thereon or incorporated therein, which may include new functional features. Customer agrees to perform such acts, and execute and deliver such instruments and documents, and do all other things as may be reasonably necessary to evidence or perfect the rights of Provider set forth in this section.
Updates. Customer agrees that Provider may update, upgrade or modify the Software or Services, at any time, including the removal or modification of previously available functionality. Subject to the foregoing, any Improvements provided to Customer by Provider will automatically be considered part of the Software and Services and will be subject to the terms of this Agreement.
Customer-Supplied Content. The Software may permit Customer to customize the branding, and look and feel of some of the Software’s elements, checkout process, emails, and lender portal (“Customer Customizations”), communicate through the Software, and otherwise present itself and its activities on the Software. All Customer-Supplied Content provided in the course of the Customer Customizations and Customer’s use of the Software is and shall remain the property of Customer, or its applicable licensor. Customer grants to Provider a nonexclusive, worldwide, royalty-free license to use, reproduce, modify and prepare derivative works of the Customer-Supplied Content during the Term, for the purpose of using and distributing the Customer-Supplied Content on the Software at Customer’s direction, facilitating Customer’s communications on the Software, for private back-end operations of the Software and for any other purpose that Customer instructs.
License. To the extent that Provider supplies an API to Customer hereunder, Provider grants to Customer a limited, non-exclusive, non-transferable license during the Term, to use the API to integrate the Platform with the Customer’s system, platform, website, or third-party tools used by Customer for Customer’s purely internal business purposes.
Limitations and Restrictions.
Content Restrictions. Provider respects the integrity of Customer-Supplied Content stored on the Software, however, Provider requires that the Customer-Supplied Content comply with requirements of laws and regulations that are applicable to Customer’s business, and Provider retains the right to ensure that its systems only host content that complies with applicable law and Provider policies. As such, Customer shall ensure that Customer and Customer Users shall not, nor permit any third party, to distribute, upload, transmit, store, make available or otherwise publish or process through the Software or Services any Customer-Supplied Content that: (i) is unlawful or encourages another to engage in anything unlawful; (ii) is untrue, inaccurate, outdated, or not current, (iii) contains a virus or any other similar programs or software which may damage the operation of Provider’s or another’s computer; (iv) violates the rights of any party or infringes upon the patent, trademark, trade secret, copyright, or other intellectual property right of any party; or (v) is libelous, defamatory, obscene, invasive of privacy or publicity rights, abusing, harassing, fraudulent, misleading, illegal, threatening or bullying. Customer understands and agrees that Provider reserves the right to edit, modify or remove content being hosted by Provider for violations of the above standards. Customer shall ensure that all Customer-Supplied Content is true and accurate at all times, and shall promptly update any such Customer-Supplied Content accordingly.
Use Restrictions. Customer shall ensure that Customer and Customer Users shall not (i) use the Software or Services for any conduct or activity that violates applicable law or for any illegal or unlawful purpose; (ii) resell, distribute, or sublicense the Software or Services or use any of the foregoing for the benefit of anyone other than you or the Customer Users; (iii) use the Software or Services to build or research a competing product or service; (iv) interfere with, impair or disrupt the Software or Services and related Provider systems; (v) introduce any virus or programming routine which is intended to or does disrupt or interrupt the use of the Software or Services or Provider’s systems; (vi) modify, translate, adapt, arrange, or create derivative works based on the Software or Services; (vii) reverse engineer or otherwise conduct research into the internal operations of the Software; or (viii) use the Software in any manner that circumvents the features or functionality of the current subscription level. All rights in and to the Software not expressly granted herein are retained by Provider.
Usage Data.
Ownership. All Usage Data, whether posted by Customer or Customer Users, will remain the sole property of Customer or such Customer Users or their licensors, as applicable. Customer grants to Provider a non-exclusive, sub-licensable license to use, copy, store, transmit and display Usage Data to the extent necessary for Provider and its vendors to provide and maintain the Software and to provide Services to Customer and its Customer Users, and to third parties to the extent instructed Customer’s use of the Software or necessary to accomplish Customer’s instruction to the Software.
Analytics; Anonymous Data. Customer agrees that Provider may monitor Customer’s and Customer Users’ use of the Software and collect and use data and related information on such use, which may be gathered periodically to ensure compliance with this Agreement, to study and improve the Software and Services, to facilitate the provision of updates, product support and to provide the services under this Agreement. Such aggregated statistical data may include Usage Data on an anonymized basis, may be combined with other data into Anonymous Data. All Anonymous Data shall be Provider’s exclusive property, and that Provider may use such Anonymous Data in its general business purposes.
Customer Customizations. Customer Customizations may not be available where the Customer integrates the Software with third-party tools utilized by the Customer for its check out process. Customer shall be solely responsible for obtaining any requisite consents from the providers or licensors of such third-party tools to any such Customer Customizations, and for complying with any agreements with, or terms and conditions of, any such third-party providers or licensors, and represents and warrants that it has obtained, and will maintain during the Term, any such consents. Notwithstanding the foregoing, Provider reserves the right to make Improvements that modify functional elements of the Software without the consent of the Customer, including modifying functional elements of the Software in a manner that may affect the current Customer Customizations, if any. Customer shall be solely responsible for the look and feel of the Customer Customizations, if any.
All use and disclosures of Customer-Supplied Content are subject to the terms and conditions of the Privacy Policy.
Fees.
Fees and Taxes. Fees are due and payable as set forth below or in an Order, as applicable. Fees and other charges described in an Order do not include federal, local, foreign, or similar transaction taxes (“Taxes”) now or hereafter levied, all of which shall be Customer’s responsibility. If Provider is required to pay Taxes on Customer’s behalf, Provider shall invoice Customer for such Taxes, and Customer shall reimburse Provider for such amounts as described in Section 10.3 herein.
Transaction Fees. Upon the closing of a loan between Customer and one of its clients which was processed through the Service, Provider will invoice Customer a fee in the amount identified in an Order or otherwise on the Platform (“TransactionFee”).
Payments. Provider will invoice Customer for the Fees as set forth in the applicable Order. If no payment terms are provided in an Order, Provider will invoice Customer on a monthly basis, with all invoices due no less than five (5) days before the start of the month to which the invoice applies. However, for Transaction Fees, the invoice shall be issued to Customer at the time of the closing of a loan processed through the Service, with such invoice being due within thirty (30) days of issuance by Provider. In addition to any other rights or remedies at law, in equity, or by the terms of this Agreement, Provider shall have the right to assess a late payment charge on any overdue amounts equal to the lesser of one and one-half percent (1.5%) per month, or the highest rate allowed by law.
Non-Cancelable and Non-Refundable. Unless otherwise expressly set forth in this Agreement or the applicable Order all Fees incurred, and payments made, under this Agreement are non-cancelable and non-refundable.
Expenses. Provider shall be entitled to reimbursement from Customer for all documented, reasonable, out-of-pocket expenses incurred in connection with the provision of the Services under this Agreement, including, without limitation, travel, lodging, meals and transportation. Any individual expenses in excess of five hundred dollars ($500) shall require pre-approval by Customer.
Indemnification.
By Provider. Provider will defend, indemnify, and hold Customer (and its officers, directors, employees and agents) harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising from any third-party claim, suit, action, or proceeding arising from the actual or alleged infringement of any copyright, patent, trademark, or misappropriation of a trade secret by the Software as provided or made available to Customer by Provider (other than that due to Customer-Supplied Content, third-party content available on the Software (such as content originating from other users of the Software), Usage Data, or unauthorized use by Customer). In case of such a claim, Provider may, in its discretion, procure a license that will protect Customer against such claim without cost to Customer, replace the Software with non-infringing Software, or if it deems such remedies not practicable, Provider may terminate this Agreement without fault. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.
By Customer. Customer will defend, indemnify, and hold Provider (and its officers, directors, employees and agents) harmless from and against all Losses arising out of or in connection with a claim, suit, action, or proceeding by a third party (i) alleging that the Usage Data, Customer-Supplied Content or other data, content or information supplied by Customer or Customer Users infringes the intellectual property rights, privacy or other rights of a third party or has caused harm to a third party; (ii) arising out of claims relating to Customer or Customer Users’ use of the Services in violation of the law, including but not limited to privacy laws; or (iii) arising out of or related to any breach or alleged breach of this Agreement by Customer or Customer Users.
Procedure. In case of any claim that is subject to indemnification under this Agreement, the Party that is indemnified (“Indemnitee”) will provide the indemnifying Party (“Indemnitor”) reasonably prompt notice of the relevant claim. Indemnitor will defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under this Agreement. Each Party will cooperate in good faith with the other to facilitate the defense of any such claim and will tender the defense and settlement of any action or proceeding covered by this Section to the Indemnitor upon request. Claims may be settled without the consent of the Indemnitee, unless the settlement includes an admission of wrongdoing, fault or liability.
Representations and Warranties; Disclaimer.
Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; and (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder.
Customer Representations and Warranties. Customer represents and warrants that:
It shall comply with all applicable laws and regulations related to its procurement and use of the Software and the operation of its business generally; and
No authorization or approval from any third party is required in connection with Customer’s execution, delivery, or performance of this Agreement, including the grant of rights and licenses with respect to the Customer-Supplied Content and the creation of any Customer Customizations.
Provider Representations and Warranties. Provider represents and warrants that during the Term, the Software shall function in material conformance with the Documentation.
Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE AND ALL SERVICES SUPPLIED BY PROVIDER ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FUNCTIONALITY, SUITABILITY, AVAILABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. PROVIDER DOES NOT WARRANT THAT USE OF THE SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED. PROVIDER DOES NOT SUPPLY OR IN ANY WAY CONTROL ANY THIRD-PARTY TOOLS (INCLUDING BUT NOT LIMITED TO THOSE INTEGRATED WITH THE PLATFORM VIA CUSTOMER’S USE OF THE API) USED BY CUSTOMER IN CONNECTION WITH THIS AGREEMENT. THEREFORE, PROVIDER HAS NO RESPONSIBILITY FOR, AND MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, WITH RESPECT TO, SUCH THIRD-PARTY TOOLS.
LIMITATION OF LIABILITY.
IN NO EVENT WILL PROVIDER BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY DAMAGES ARISING FROM OR RELATING TO CUSTOMER’S USE OF THIRD-PARTY TOOLS (INCLUDING BUT NOT LIMITED TO THOSE INTEGRATED WITH THE PLATFORM VIA CUSTOMER’S USE OF THE API) AND ANY INACCURACIES OR ERRORS ARISING THEREFROM.
EXCEPT IN CONNECTION WITH EITHER PARTY’S CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS HEREUNDER: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND (II) PROVIDER’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (A) AMOUNTS OWED BY CUSTOMER TO PROVIDER HEREUNDER, OR (B) THE FEES INCURRED BY CUSTOMER HEREUNDER DURING THE PERIOD SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.
EXCEPT IN CONNECTION WITH EITHER PARTY’S CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS HEREUNDER: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND (II) PROVIDER’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (A) AMOUNTS OWED BY CUSTOMER TO PROVIDER HEREUNDER, OR (B) THE FEES INCURRED BY CUSTOMER HEREUNDER DURING THE PERIOD SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.
Confidentiality
Except as provided in the Privacy Policy:
Limitations. Neither Party will use the other Party’s Confidential Information provided during the Term of the Agreement, except as provided herein or in the Privacy Policy and as reasonably required for the performance of this Agreement. Each Party will hold in confidence the other Party’s Confidential Information by means that are no less restrictive than those used for its own confidential materials. Other than pursuant to the direction of a Party regarding its own Confidential Information, each Party agrees not to disclose the other Party’s Confidential Information to anyone other than its employees, confidential advisors, or subcontractors who are bound by confidentiality obligations at least as restrictive as herein and who need to know the same to perform such Party’s obligations hereunder or to assist a Party in meeting its legal obligations. The confidentiality obligations set forth in this Section will survive for as long as applicable information meets the definition of Confidential Information.
Required Disclosures. In the event that a Party is required by subpoena, court process or other applicable law to disclose the other Party’s Confidential Information, the Party required to make such disclosure may do so to the extent required by law, but only, where permitted by law, after notifying the other Party and giving said other Party a reasonable opportunity to contest such disclosure.
Actions Upon Termination. Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement, each Party will, upon the request of the disclosing Party, either: (i) return all of such Confidential Information of the disclosing Party provided during the Term and all copies thereof in the receiving Party’s possession or control to the disclosing Party; or (ii) destroy all Confidential Information provided during the Term and all copies thereof in the receiving Party’s possession or control. Notwithstanding the foregoing, nothing herein shall require a Party to remove or delete the other Party’s Confidential Information that it is required to retain in order to comply with applicable law, or from its long-term backup storage, provided that any such retained information shall remain subject to the confidentiality obligations of this Agreement. Further notwithstanding the foregoing, upon any termination or expiration of this Agreement, Provider may retain any Confidential Information that consists of Usage Data shared with or provided by Customer or Customer Users to other users of the Software, and may continue to display and provide said Usage Data to such other users.
Term and Termination.
Term. The Term commences on the Effective Date hereof and shall continue for one year (“Initial Term”) and thereafter it shall renew automatically for successive one (1) year periods (each, a “Renewal Term”, and together with the Initial Term, the “Term”) until there are no open Orders, unless earlier terminated as provided herein. Pricing for any Renewal Term shall be automatically adjusted to Provider’s standard terms in effect at the time that such Renewal Term begins.
Termination.
Either Party may terminate this Agreement and/or any Order: (i) upon thirty (30) days’ notice to the other Party if the other Party breaches a material term of this Agreement or an Order, and the breach remains uncured at the expiration of such thirty (30) day period; or (ii) immediately, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors.
Customer may terminate this Agreement, or individually any Order, without cause at any time, provided, however, that Customer shall remain responsible for all Fees which would otherwise be due under the then-current Term of this Agreement or under any terminated Order.
Provider may terminate this Agreement, or individually any Order, for any reason or no reason upon thirty (30) days’ notice to Customer, provided, however, that no future Fees (except Transaction Fees and other Fees that upon the date of termination which have already accrued) shall be due under the terminated Order and Provider shall issue a pro-rata refund of any Fees (excluding Transaction Fees) collected covering a period that post-dates the effective date of termination.
Termination of this Agreement shall terminate all open Orders. Termination of an Order shall not automatically terminate this Agreement or any other open Orders.
Actions Upon Termination.
Upon termination of any Order, or termination of this Agreement, (i) Provider shall cease all work being performed under the terminated Order; (ii) unless Customer is granted access as a paying user via another open Order, Customer’s access to the Software shall cease, subject to the applicable terms and conditions made available by Provider; (iii) Customer shall cease using the API; (iv) Customer shall delete or return any Software and Documentation to Provider; and (iv) Provider shall issue Customer a final invoice for any terminated Order and any Transaction Fees that upon the date of termination have accrued.
Termination of an Order or this Agreement shall not eliminate Customer’s obligation to pay for Transaction Fees or time-and-materials deliverables incurred or performed prior to termination. In the event that an Order with a fixed fee service or deliverable is terminated before such services or deliverables are completed but after they have been commenced by Provider, such Order shall be converted to a time-and-materials Order for such commenced but incomplete deliverables, and Provider shall invoice Customer for the reasonable time incurred in connection with such incomplete deliverables.
Survival. Sections 1 and 6-17 shall survive any termination or expiration of this Agreement.
Disputes.
Arbitration. Each Party agrees to submit any and all disputes, claims and controversies arising between the Parties hereto to final and binding arbitration, which shall be administered by the American Arbitration Association (“AAA”) in accordance with its rules then in effect. Any arbitration brought hereunder shall be heard by three (3) independent and impartial arbitrators. Two arbitrators shall be selected by the respective Parties, one by the claimant(s) and one by the respondent(s). The third arbitrator shall be appointed by the two Party-appointed arbitrators or by the AAA if such two arbitrators cannot agree. The place of the arbitration shall be Wilmington, Delaware. Any Party’s refusal to select, or unreasonable delay in selecting, an arbitrator shall be considered a material breach of this Agreement. The arbitrators shall have the authority to grant any equitable and legal remedies that would be available in any judicial proceeding intended to resolve a dispute. Notwithstanding the foregoing, either Party shall be entitled to bring an action seeking injunctive relief in any court of competent jurisdiction. The award rendered in an arbitration hereunder shall be final and non-appealable. Judgment on the award rendered may be entered in any court having jurisdiction thereof. Each of the Parties shall keep the proceedings and any and all transcripts, statements, documents, discovery, correspondence and all other non-public information produced or otherwise disclosed in connection with any such arbitration confidential.
Matters Not Requiring Arbitration. Notwithstanding the foregoing, the Parties agree that Provider may bring suit in court to enjoin infringement or other misuse of intellectual property or other proprietary rights, or for defense and indemnification as provided for herein.
Miscellaneous.
Publicity. Customer acknowledges and agrees that Provider may make public the execution of this Agreement or Customer’s use of the Software and Services for marketing purposes. Customer agrees that Provider may include Customer’s name and logo on Provider’s website, a list of Provider’s customers, and in other marketing materials, which may be made public, and grants to Provider an irrevocable, perpetual, worldwide, royalty free, freely assignable and transferable license to Customer’s name and logo to do so.
Choice of Law; Jurisdiction. This Agreement will be interpreted fairly in accordance with its terms, without any strict construction in favor of or against either Party and in accordance with the laws of the State of Delaware and applicable US federal law. Except as provided in the arbitration clause, the state and federal courts located in the city of Wilmington, Delaware will have exclusive jurisdiction and venue over any dispute or controversy arising from or relating to this Agreement or its subject matter, and the Parties expressly agree to the suitability and convenience of such location, and shall not contest the same.
Notice. Provider may give notice by means of electronic mail to Customer’s email address on record in Customer’s account or by written communication sent by first class mail or by courier service to Customer’s address on record in Customer’s account. Such notice will be deemed to have been given upon the expiration of thirty-six (36) hours after mailing (if sent by first class mail) or sending by courier or twelve (12) hours after sending (if sent by email), or, if earlier, when received. Customer may give notice to Provider by e-mail to [email protected]. Such notice will be deemed to have been given twelve (12) hours after sending, or, if earlier, when received. A Party may, by giving notice to the other Party, change its applicable address, email, or other contact information.
Severability. If any provision of this Agreement or any Order is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
No Agency. No joint venture, partnership, employment, or agency relationship exists between Customer and Provider as a result of this Agreement or use of the Service. Provider shall at all times be considered an independent contractor to Customer.
No Waiver. The failure of Provider to enforce any right or provision in this Agreement or any Order will not constitute a waiver of such right or provision unless acknowledged and agreed to by Provider in writing.
Compliance with Export Laws. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Software. Without limiting the foregoing, Customer warrants and represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and Customer shall not use, export or re-export the Software in violation of any U.S. export embargo, prohibition or restriction. Customer shall promptly provide notice to Provider if this warranty and representation is no longer accurate.
Force Majeure. Except for the payment by Customer, if the performance of this Agreement or any Order by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of such Party, that Party will be excused from such to the extent that it is prevented, hindered or delayed by such causes.
Assignment. Neither Party may assign this Agreement and any Order without the prior written approval of the non-assigning Party, provided, however, that Provider may assign this Agreement along with any Orders, in whole or in part, to (i) an acquirer of all or substantially all of Provider’s assets involved in the operations relevant to this Agreement; or (ii) a successor by merger, acquisition, re-organization or other change of control without Customer’s approval. Any purported assignment in violation of this Section will be null and void. This Agreement and applicable or any Orders may be enforced by and are binding on permitted successors and permitted assigns.
Entire Agreement. This Agreement, together with any applicable exhibit(s) and Orders, comprises the entire agreement between Customer and Provider and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding the subject matter contained herein. No amendment to or modification of this Agreement will be binding unless in writing and signed by an authorized representative of each Party.