THESE TERMS OF SERVICE (“TERMS”) ARE A LEGAL CONTRACT BETWEEN YOU AND/OR THE ENTITY YOU REPRESENT (COLLECTIVELY "CUSTOMER") AND GUIDEFITTER, INC. ("SUPPLIER"), AND GOVERN YOUR USE OF GUIDEFITTER’S GUIDE & OUTFITTER PROGRAM MARKETING SERVICE (THE "SERVICE"), THROUGH WHICH CUSTOMERS CAN ADVERTISE THEIR GUIDE AND OUTFITTER PROGRAMS TO PARTICIPANTS (AS DEFINED BELOW) AND ACCESS CERTAIN INFORMATION ABOUT SUCH PARTICIPANTS. READ THESE TERMS CAREFULLY BEFORE USING THE SERVICE. USING THE SERVICE INDICATES THAT CUSTOMER HAS BOTH READ AND ACCEPTED THESE TERMS. CUSTOMER MAY NOT USE THE SERVICE IF IT DOES NOT ACCEPT THESE TERMS.
In consideration of the mutual promises and agreements set forth in these Terms, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and agreed by the parties, the parties agree as follows:
1.1 “Activation Date” means the date, set forth in the applicable Order Form, on which the Service is scheduled to be made available to Customer.
1.2 “Affiliate” means any entity that controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “control” means direct or indirect possession of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise. An entity shall be considered an “Affiliate” only so long as that entity meets the foregoing definition.
1.3 “Customer Data” means all data, images, text, content or other materials submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Customer or any User on or through the Service.
1.4 “Customer Content” means images, text, content, trademarks, logos, or other materials provided to Supplier for use in developing Customer-specific pages and content for the Service.
1.5 “Customer System” means Customer’s internal website(s), servers and other equipment and software used in the conduct of Customer’s business.
1.6 “Documentation” means the online user instructions and help files made available by Supplier for use with the Service, as may be updated from time to time by Supplier.
1.7 “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.
1.8 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.9 “Order Form” means the ordering documents for the Service that are executed hereunder by the parties from time to time, including modifications, supplements and addenda thereto. Order Forms shall be deemed incorporated herein. Affiliates of Customer may purchase licenses to access and use the Service subject to these Terms by executing Order Forms hereunder. By executing an Order Form, that Customer Affiliate shall be bound by these Terms as if it were an original party hereto.
1.10 “Participant” means a guide, outfitter, or other relevant industry professional who has provided information (“Participant Information”) to Guidefitter that Guidefitter has used to verify such person’s status as an industry professional and has elected to make available to users of the Service.
1.11 “Service” means Supplier’s Influencer Program Marketing Service provided by Supplier to Customer pursuant to these Terms.
1.12 “Subscription Term” means the subscription period for Customer’s use of the Service set forth in an Order Form.
1.13 “Supplier Content” means any content provided to Customer or its Users via the Service, including original art work, graphics, photographs, images, screen shots, text, trademarks, logos, Participant information, and any combination of the foregoing.
1.14 “Users” means Customer’s or its Affiliates’ employees, consultants, contractors, agents and third parties (a) who are authorized by Customer or its Affiliates to access and use the Service on Customer’s behalf, and (b) 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.
2.1 Orders. Subject to the terms and conditions contained in these Terms, Customer may purchase subscriptions to access and use the Service pursuant to Order Forms. 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 an Order Form and these Terms, the Order Form controls.
2.2 Access and Use License. Subject to Customer’s compliance with the terms and conditions contained in these Terms, 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 Service and related Supplier Content in accordance with the Documentation, in each case solely for Customer’s internal business purposes and not for the benefit of any other person or entity. Customer’s use of the Service may be subject to certain limitations, such as, for example, limits on storage capacity for Customer Data. Any such limitations will be specified either in the Order Form or in the Documentation.
2.3 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 Service; (b) modify, translate, or create derivative works based on any element of the Service or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Service; (d) use the Service 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 Service without Supplier's prior written consent; (g) use the Service for any purpose other than its intended purpose; (h) interfere with or disrupt the integrity or performance of the Service; or (i) attempt to gain unauthorized access to the Service or their related systems or networks.
2.4 Reservation of Rights. Except as expressly granted in these Terms, there are no other licenses granted to Customer, express, implied or by way of estoppel. All rights not granted in these Terms are reserved by Supplier.
3. THIRD PARTY HOSTING.
3.1 Third Party Hosting. Supplier may use the services of one or more third parties to deliver any part of the Service. Supplier will pass-through any warranties to the extent that Supplier receives any from its then current third-party service provider that it can provide to Customer. Customer agrees to comply with any acceptable use policies and other terms of any third-party service provider that are provided or otherwise made available to Customer from time to time.
4. PASSWORDS; SECURITY.
4.1 Passwords. Supplier will issue to Customer (or, as applicable, its Affiliates), user logins and passwords for each of its Users authorized to access and use the Service. Customer shall be, and shall ensure that each of its Affiliates and 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 Service that occurs using logins and passwords Supplier issues to any of Customer and Customer’s Affiliates. Customer shall, and shall ensure that Customer’s Affiliates, 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 or Customer’s Affiliates’ 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.
4.2 No Circumvention of Security. Neither Customer nor any of Customer’s Affiliates nor any User may circumvent or otherwise interfere with any user authentication or security of the Service. Customer will immediately notify Supplier of any breach, or attempted breach, of security known to Customer.
5. CUSTOMER OBLIGATIONS.
5.1 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, its Affiliates and their respective Users to access and use the Service via the Internet; (b) contracting with third party ISP, telecommunications and other service providers to access and use the Service 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 these Terms or an Order Form, Supplier shall not be responsible for supplying any hardware, software or other equipment to Customer under these Terms.
5.2 Acceptable Use Policy. Customer shall be solely responsible for its actions and the actions of its Users while using the Service.Customer acknowledges and agrees:(a) to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of the Service, including without limitation the provision, display and use of Customer Data as contemplated under this Agreement; (b) not to send or store data on or to the Service 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 Service or another's computer or mobile device; (d) not to upload in any way any data regarding 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 Service for illegal, fraudulent, unethical or inappropriate purposes; (f) not to interfere or disrupt networks connected to the Service or interfere with other ability to access or use the Service; (g) not to distribute, promote or transmit through the Service 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 Service or another person or entity's use and enjoyment of similar services; (j) not to use the Service in any manner that impairs the Service, including without limitation the servers and networks on which the Service is provided; (k) to comply with all regulations, policies and procedures of networks connected to the Service and Supplier’s service providers; and (l) to use the Service 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 Service or transmitted through the Service, 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 Service by any third party 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 it and its Users input into the Service.Supplier reserves the right to amend, alter, or modify Customer’s conduct requirements as set forth in these Terms at any time. Supplier may deliver notice of such updated requirements to Customer via e-mail or through the Service. Customer’s continued access to and use of the Service following issuance of such updated Customer requirements shall constitute Customer’s acceptance thereof.
5.3 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 Service, 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.
5.4 Temporary Suspension. Supplier may temporarily suspend Customer’s, its Affiliates’ or their respective Users’ access to the Service in the event that either Customer, its Affiliates or any of their Users is engaged in, or Supplier in good faith suspects Customer, its Affiliates’ or any of their Users is engaged in, any unauthorized conduct (including, but not limited to any violation of these Terms). 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 Affiliates and User sub-accounts. Customer agrees that Supplier shall not be liable to Customer, any of its Affiliates 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’s, its Affiliates and their respective Users’ access and use of the Service. Notwithstanding anything in this Section to the contrary, Supplier’s suspension of Service is in addition to any other remedies that Supplier may have under these Terms or otherwise, including but not limited to termination of these Terms 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; ANCILLARY SERVICES; CHANGES.
6.1 Availability. Subject to the terms and conditions of these Terms, Supplier will use commercially reasonable efforts to make the Service available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime (with regard to which Supplier will use commercially reasonable efforts to provide at least 48 hours advance notice and routine maintenance times currently scheduled for every Fri-Sun, 11:01pm to 4:00am (Pacific Time) and as otherwise specified by Supplier, or (b) any unavailability caused by circumstances beyond Supplier’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems or Internet service provider failures or delays.
6.2 Ancillary Services. Certain features of the Service for which Customer may subscribe involve the creation of Customer-specific webpage(s) on the Service. If Customer has subscribed to such features, Supplier shall use commercially reasonable efforts to develop such webpages using Customer Content. Supplier and Customer shall cooperate to enable Supplier to perform the development of the webpages according to the dates of performance and delivery terms (if any) set forth on the applicable Order Form.
6.3 Changes. Supplier may make changes to the Supplier Content and Services at any time. Supplier may also change, update, or add or remove provisions of these Terms at any time by posting the updated Terms on this site and by emailing notice of such changes to Customer email address on record with Supplier. Certain enhancements to the Service made generally available at no cost to all subscribing customers during the applicable Subscription Term will be made available to Customer at no additional charge. However, the availability of some new enhancements to the Service may require the payment of additional fees, and Supplier will determine at its sole discretion whether access to any other such new enhancements will require an additional fee. These Terms will apply to, and the Service includes, any enhancements, updates, upgrades and new modules to the Service subsequently provided by Supplier to Customer hereunder.
7. FEES AND PAYMENT.
7.1 Customer Fees.
7.1.1 Fees. Customer agrees to pay all fees specified in all Order Forms (“Fees”) using one of the payment methods Supplier supports. Except as otherwise specified in these Terms or in an Order Form, (a) fees are quoted and payable in advance in United States dollars, (b) fees are based on Service purchased, regardless of actual usage, and (c) payment obligations are non-cancelable and fees paid are non-refundable. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term. All amounts payable under these Terms will be made without setoff or counterclaim, and without any deduction or withholding.
7.1.2 Invoices and Payment. All Fees will be invoiced in advance and in accordance with 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.
7.1.3 Overdue Charges. If Supplier does not receive fees by the due date, then at Supplier’s discretion, 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.
7.1.4 Suspension of Service. If any amounts owed by Customer for the Service 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 Service until such amounts are paid in full.
7.1.5 Payment Disputes. Supplier agrees that it will not exercise its rights under Section 7.3 (Overdue Charges) or Section 7.4 (Suspension of Service) if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
7.2 Supplier Payments. Certain features of the Service to which Customer may subscribe permit Participants to order products from Customer-specific webpages within the Service, with Supplier and/or Supplier’s third party payment processor collecting payments for such sales. If Customer has subscribed to such feature(s), Customer shall, within ten (10) days of the end of each calendar month, invoice Supplier for amounts due to Customer for such sales (as calculated pursuant to the details contained in each applicable Order Form). Unless otherwise set forth in the applicable Order Form, Supplier agrees to pay all undisputed invoices within thirty (30) days of receipt.
7.3 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 7.6 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 7.6 shall survive the termination or expiration of this Agreement.
8. CUSTOMER’S RELATIONSHIP WITH SUPPLIER; DISPUTES AMONG USERS
8.1 Customer Third Party Agreements. Customer acknowledges and agrees that Supplier is NOT a party to any oral or written agreement or any other contract entered into between Customer and any Participant or other user of the Service. In the event Supplier creates Customer-specific webpages that advertise Customer products to Participants, Supplier merely collects payments on Customer’s behalf and is not a party to any agreement for sale of such products between Supplier and applicable Participants.
8.2 No Agency or Partnership. 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. The Participants are not employees or agents of Supplier. Neither Supplier nor any users of the Service may direct or control the day-to-day activities of the other, or create or assume any obligation on behalf of the other.
8.3 Disputes Between Users. Customer’s interactions with individuals and/or organizations found on or through the Service, including the performance of any services by such parties and any other terms, conditions, warranties or representations associated with such transactions or dealings, are solely between Customer and such individual or organization.
8.4 Dealings with Third Parties. Customer understands that deciding whether to contract with a Participant, or to use information contained on the Service, is Customer’s sole decision for which Customer alone are responsible. Customer should take reasonable precautions and make whatever investigation or inquiries Customer deems necessary or appropriate before proceeding with any online or offline transaction with any third party, including without limitation Participant with whom Customer does business as a result of Customer’s use of the Service. While Supplier makes reasonable efforts to verify Participant’s status as industry professionals, Customer understands that Supplier does not and cannot make representations as to the suitability of any individual Customer may decide to interact with on or through the Service and/or the accuracy or suitability of any advice, information, or recommendations provided by any individual.
IF THERE IS A DISPUTE BETWEEN USERS OF THE SERVICE, OR BETWEEN ANY USER OF THE SERVICE AND ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO ANY PARTICIPANT), CUSTOMER ACKNOWLEDGES AND AGREES THAT SUPPLIER IS UNDER NO OBLIGATION TO BECOME INVOLVED. IN THE EVENT THAT A DISPUTE ARISES BETWEEN CUSTOMER AND ANY SUCH THIRD PARTY, CUSTOMER HEREBY RELEASES SUPPLIER AND SUPPLIER’S OFFICERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AGENTS, AND SUCCESSORS IN RIGHTS FROM ANY CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEABLE OR UNFORESEEABLE, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO SUCH DISPUTES AND/OR THE WEBSITE OR ANY SERVICE PROVIDED THEREUNDER
9. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
9.1 Mutual Representations and Warranties. Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into these Terms 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 these Terms 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.
9.2 Evaluations of New Service. From time to time Supplier may invite Customer to try, at no charge, Supplier products or services that are not generally available to Supplier customers (“Non-GA Services”). Customer may accept or decline any such trial in its sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors (but shall not contain any Malicious Code), and may be subject to additional terms that shall be provided by Supplier to Customer prior to or concurrent with Supplier’s invitation to the applicable Non-GA Services. Non-GA Services are not considered part of the “Service” hereunder. Supplier has the right to discontinue Non-GA Services at any time in its sole discretion and may never make them generally available.
9.3 Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 9, THE SERVICE AND ANY NON-GA SERVICES ARE PROVIDED ON AN AS-IS BASIS. CUSTOMER’S USE OF THE SERVICE AND NON-GA SERVICES IS AT ITS OWN RISK.SUPPLIER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED 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.ANY WARRANTIES MADE BY SUPPLIER ARE FOR THE BENEFIT OF CUSTOMER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. SUPPLIER IS NOT RESPONSBILE FOR THE PRODUCTS, SERVICES, ACTIONS, OR FAILURE TO ACT OF ANY THIRD PARTY. ANY MATERIALS PROVIDED THROUGH THE SERVICE ARE LICENSED AND NOT SOLD.
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 SERVICE OR NON-GA SERVICESWILL 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 SERVICE OR NON-GA SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (E) THE SERVICE AND NON-GA SERVICES WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE SERVICES AND NON-GA SERVICES WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE SERVICE AND NON-GA SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES AND NON-GA 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.
10.1 Supplier Indemnity.
(a) General. Supplier, at its expense, shall defend Customer and its Affiliates and their 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 Service 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) incurred by the Customer Indemnified Parties from 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.
(b) Mitigation. If any claim which 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 Service, (b) substitute a functionality equivalent, non-infringing replacement for such the Service, (c) modify Service to make it non-infringing and functionally equivalent, or (d) terminate these Terms and refund to Customer any prepaid amounts attributable the period of time between the date Customer was unable to use the Service due to such claim and the remaining days in the then-current Subscription Term.
(c) Exclusions. Notwithstanding anything to the contrary in these Terms, 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 Service 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 Service other than by Supplier, (iv) Customer’s continued use of the Service after Supplier notifies Customer to discontinue use because of an infringement claim; (v) Customer’s violation of applicable law; (vi) Customer Content; or (vii) the Customer System.
(d) Sole Remedy. THE FOREGOING STATES THE ENTIRE LIABILITY OF SUPPLIER WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE SERVICE OR OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF SUPPLIER WITH RESPECT THERETO.
10.2 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 Content, 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 Service other than as permitted under these Terms; or (c) the occurrence of any of the exclusions set forth in Section 10.1(c). Customer shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) incurred by the Supplier Indemnified Parties from any such Third-Party Claim. Customer’s obligations under this Section are conditioned upon (x) Customer being promptly notified in writing of any claim under this Section, (y) Customer having the sole and exclusive right to control the defense and settlement of the claim, and (z) Supplier providing all reasonable assistance (at Customer’s expense and reasonable request) in the defense of such claim. In no event shall Supplier settle any claim without Customer’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.
11.1 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 these Terms, 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 these Terms and any Order Form. Confidential Information of Supplier shall include the Service. Confidential Information also includes all summaries and abstracts of Confidential Information.
11.2 Non-Disclosure. Each party acknowledges that in the course of the performance of these Terms, 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 these Terms. 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, Affiliates 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, affiliates and agents who need access to such Confidential Information in order to effect the intent of these Terms and who are subject to confidentiality obligations at least as stringent as the obligations set forth in these Terms.
11.3 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 which: (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 these Terms or any obligation of confidentiality by the Receiving Party. Nothing in these Terms 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.
11.4 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.
12. PROPRIETARY RIGHTS
12.1 Service. As between Supplier and Customer, all right, title and interest in the Service, the Supplier Content, and any other Supplier materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer regarding the Supplier, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Supplier or Supplier’s licensors and providers, as applicable. Customer hereby does and will irrevocably assign to Supplier all evaluations, ideas, feedback and suggestions made by Customer to Supplier regarding the Service (collectively, “Feedback”) and all Intellectual Property Rights in the Feedback.
12.2 Customer Data and Customer Content. As between Supplier and Customer, all right, title and interest in (a) the Customer Data and Customer Content, (b) other information input into the Service 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 Customer Content and perform all acts with respect to the Customer Data as may be necessary for Supplier to provide the Service 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 these Terms. As between Supplier and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data and Customer Content.
12.3 Aggregated Statistics. Notwithstanding anything else in these Terms or otherwise, Supplier may monitor Customer’s use of the Service 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 Service (“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 Service 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.
12.4 Supplier Developments. All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of Supplier, whether solely or jointly (“Supplier Developments”), and all Intellectual Property Rights therein, shall be the sole and exclusive property of Supplier. Customer agrees that, to the extent that the ownership of any contribution by Customer or its employees to the creation of the Supplier Developments is not, by operation of law or otherwise, vested in Supplier, Customer hereby assigns and agrees to assign to Supplier all right, title and interest in and to such Supplier Developments, including without limitation all the Intellectual Property Rights therein, without the necessity of any further consideration.
12.5 Further Assurances. To the extent any of the rights, title and interest in and to Feedback or Supplier Developments or Intellectual Property Rights therein cannot be assigned by Customer to Supplier, Customer hereby grants to Supplier an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest. To the extent that the foregoing assignment and license are not enforceable, Customer agrees to waive and never assert against Supplier those non-assignable and non-licensable rights, title and interest. Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as Supplier may reasonably request, to perfect ownership of the Feedback and Supplier Developments. If Customer is unable or unwilling to execute any such document or take any such action, Supplier may execute such document and take such action on Customer’s behalf as Customer’s agent and attorney-in-fact. The foregoing appointment is deemed a power coupled with an interest and is irrevocable.
13. LIMITATION OF LIABILITY.
13.1 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 THESE TERMS, 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 SERVICE OR THE RESULTS THEREOF. SUPPLIER WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
13.2 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 THESE TERMS 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 WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
CUSTOMER IS SOLELY RESPONSIBLE FOR ALL OF ITS COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF SERVICE, AND WITH OTHER PERSONS WITH WHOM CUSTOMER COMMUNICATES OR INTERACTS AS A RESULT OF ITS USE THEREOF. CUSTOMER UNDERSTANDS THAT SUPPLIER IS NOT OBLIGATED TO VERIFY THE STATEMENTS OF USERS OF THE SERVICE. CUSTOMER MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICE OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SERVICE. SUPPLIER EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USER OF THE SERVICE AND ALL OTHER THIRD PARTIES.
13.3 Essential Purpose. CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 13 (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.
14. TERM AND TERMINATION.
14.1 Term. The term of these Terms commence on the Activation Date and continue until the expiration or termination of all Subscription Term(s), unless earlier terminated as provided in these Terms. Except as otherwise specified in the applicable Order from, Subscription Terms for all Users shall automatically renew for additional periods equal to the expiring Subscription Term unless one party gives the other written notice of non-renewal at least ninety (90) days prior to the expiration of the then current Subscription Term. The subscription 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.
14.2 Termination for Cause. A party may terminate these Terms (and all Subscription Term(s)) 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 these Terms and does not remedy such breach within thirty (30) days after receipt of notice from the notifying 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 up to the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Supplier for the period prior to the effective date of termination.
14.3 Effects of Termination. Upon expiration or termination of these Terms, (a) Customer’s use of and access to the Service shall cease; (b) all Order Forms and Statements of Work shall terminate; and (c) all fees and other amounts owed to Supplier shall be immediately due and payable by Customer. Supplier shall have no obligation to maintain or provide any Customer Data and/or Customer Content and may thereafter, unless legally prohibited, delete all Customer Data and/or Customer Content in its systems or otherwise in its possession or under its control.
14.4 Survival. This Section and Sections 1, 2.3, 7.6, 10, 11, 12, 13, 14.3, and 15 shall survive any termination or expiration of these Terms.
15.1 Notices. Supplier may give notice to Customer by means of a general notice through the Service interface, electronic mail to Customer’s e-mail address on record with Supplier, or by written communication sent 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 Guidefitter, Inc., 4200 N. Lamar Blvd Suite 250, Austin Texas 78756. 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 these Terms shall be in the English language.
15.2 Governing Law. These Terms 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 Texas 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 these Terms. Any dispute arising out of or in connection with these Terms, 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 these Terms, 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 Austin, Texas. Notwithstanding the foregoing, Supplier has the right to pursue equitable relief in the state and federal courts located in Texas, and Customer agrees to the exclusive jurisdiction and venue of such courts.
15.3 Publicity. Supplier has the right to reference and use Customer’s name and trademarks and disclose the nature of the Service provided hereunder in each case in Supplier business development and marketing efforts, including without limitation Supplier’s web site.
15.4 Export. The Service utilizes software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the Service 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 Service, 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 Service 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 Service 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 Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.
15.5 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 these Terms. 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 and its Affiliates, (b) each person or entity owning an interest in any of them 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.
15.6 Waiver. No term or provision of these Terms 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.
15.7 Severability. If any provision of these Terms 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.
15.8 Assignment. Customer may not assign its rights or delegate its obligations under these Terms, any Order Forms or any SOWs 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, these Terms will bind and benefit the parties and their successors and permitted assigns. With the exception of Affiliates of Customer who have executed Order Forms under these Terms, there are no third party beneficiaries to these Terms.
15.9 Attorneys’ Fees. In any action to enforce these Terms, 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.
15.10 Force Majeure. Except for Customer’s payment obligations, neither party shall be liable for any failure or delay in performance under these Terms 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 these Terms); or any other event beyond the reasonable control of the party whose performance is to be excused.
15.11 Entire Agreement. These Terms, including all applicable Order Forms, and Statements of Work, constitute 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.