This Master Subscription Agreement ("Agreement") is entered into and effective as of March 1, 2019 by and between Innovative Way, Inc., a Texas corporation ("Innovative Way", "Service Provider", "We", "Us", "Our") and ("Subscriber", "You", "Your").
THIS AGREEMENT CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES BY YOU, AGENTS AND END-USERS WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES.
By accepting this Agreement, either by accessing or using a Service, or authorizing or permitting any Agent or End-User to access or use a Service, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity (an "Entity"), You are agreeing to this Agreement for that Entity and representing to Innovative Way that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms "Subscriber," "You," "Your" or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not accept this Agreement and may not use any of the Services.
This Agreement, or any part thereof, may be modified by Us, including the addition or removal of terms at any time, and such modifications, additions or deletions will be effective immediately upon posting. Your use of the Service after such posting shall be deemed to constitute Your acceptance of such modifications, additions or deletions.
When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:
"Account": means any accounts or instances created by or on behalf of Subscriber or its Agents within the Services.
"Affiliate": means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby "control" (including, with correlative meaning, the terms "controlled by" and "under common control") means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
"Agent": means an individual authorized to use a Service through Your Account as an agent and/or administrator as identified through a unique login.
"Applicable Data Protection Law": means Directive 95/46/EC (or a successor thereto) on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data.
"API": means the application programming interfaces developed and enabled by Innovative Way that permit Subscribers to access certain functionality provided by the Services, including, without limitation, the REST API that enables the interaction with the Services automatically through HTTP requests and the application development API that enables the integration of the Services with other web applications.
"Associated Services": means products, services, features and functionality designed to be used in conjunction with the Services but not included in the Service Plan to which You subscribe, including, without limitation, integrations and applications created or developed by Innovative Way or its Affiliates which will be governed by this Agreement unless Innovative Way otherwise communicates a different agreement to You at the time of Your deployment of or access to the integration or application.
"Beta Services": means a product, service or functionality provided by Innovative Way that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description.
"Confidential Information": means all information disclosed by You to Innovative Way or by Innovative Way to You which is in tangible form and labeled "confidential" (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, information relating to Innovative Way’s security policies and procedures. For purposes of this Agreement, this Agreement as well as Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party by a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.
"Consulting Services": means consulting and professional services (including any training, success or implementation services) provided by Innovative Way or its authorized subcontractors as indicated on a Service Request or other written document such as a statement of work "SOW", as defined below.
"Documentation": means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services or describing Service Plans, as applicable, provided or made available by Innovative Way to You in the applicable Innovative Way help guide(s); provided, however, that Documentation shall specifically exclude any Service Data.
"End-User": means any person or entity other than Subscriber or Agents with whom Subscriber or its Agents interact using a Service.
"Payment Agent": means Innovative Way, Inc. or a payment agent designated by Innovative Way.
"Personal Data": means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity.
"Personnel": means employees and/or non-employee service providers and contractors of Innovative Way engaged by Innovative Way in connection with performance hereunder.
"Processing/To Process/Processed": means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
"Service(s)": means the products and services that You explicitly ordered through a link, this Agreement, or via an Service Request referencing this Agreement, whether on a trial or paid basis, and made available online by Us, via the applicable subscriber login link and other web pages designated by Us, including, individually and collectively, the applicable Software, updates, API, documentation, and all applicable Consulting Services that You have purchased or deployed or to which You have subscribed that are provided under this Agreement. Services exclude Third Party Services as that term is defined in this Agreement and any Associated Services that are not provided under this Agreement. From time to time the names and descriptions of the Services or any individual Service may be changed. To the extent Subscriber is given access to such Service as so described by virtue of a prior Service Request or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described.
"Service Data": means electronic data, text, messages, communications or other materials submitted to and stored within a Service by You, Agents and End-Users in connection with Your use of such Service, which may include, without limitation, documents, files, images, video, text, comments, ratings, reviews, or Personal Data.
"Service Plan(s)": means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Site applicable to the Service) for the Services to which You subscribe.
"Service Request": means any of Our generated service requests executed or approved by You with respect to Your subscription to a Service, which form may detail, among other things, the number of Agents authorized to use a Service under Your subscription to a Service and the Service Plan applicable to Your subscription to a Service.
"Site": means a website operated by Innovative Way.
"Software": means software provided by Innovative Way (either by download or access through the Internet) that allows Agents or End-Users to use any functionality in connection with the applicable Service.
"Subscription Term": means the period during which You have agreed to subscribe to a Service with respect to any individual Agent.
"Supplemental Terms": means the additional terms and conditions that are (a) contained in this Agreement under the Section entitled, "Supplemental Terms and Conditions" which apply and are incorporated into this Agreement with certain Services, features, or functionality; (b) included or incorporated on an Service Request (e.g. when a Service is purchased); or (c) applicable to Consulting Services when purchased by You.
"Third Party Services": means third party products, applications, services, software, networks, systems, directories, websites, databases and information obtained separately by You which a Service links to, or which You may connect to or enable in conjunction with a Service, including, without limitation, Third Party Services which may be integrated directly into Your Account by You or at Your direction.
2. GENERAL CONDITIONS
2.1 In connection with the evaluation, pursuit, or performance of a mutually beneficial business opportunity or relationship (the "Purpose"), each Party hereto may disclose certain non-public information to the other Party or its directors, officers, employees, agents, consultants, advisers, or other representatives (collectively, "Representatives") relating to their respective operations and businesses. The Parties wish to preserve the confidentiality and prevent the unauthorized disclosure and use of any such non-public information disclosed to the Receiving Party or its Representatives on the terms and conditions set forth herein.
Nothing in this Agreement shall impose any obligation upon either Party to consummate a transaction, to enter into any discussion or negotiations with respect thereto, or to take any other action not expressly agreed to herein. Neither Party shall have any obligation to the other Party for any action such other Party may take, or refrain from taking, based on or otherwise attributable to any information (whether or not constituting Confidential Information) furnished to such other Party hereunder or otherwise in connection with the Purpose.
3. CONFIDENTIALITY, SECURITY AND PRIVACY
3.1 Subject to the express permissions of this Agreement, each Party will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information. Except as otherwise expressly permitted pursuant to this Agreement, each Party may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to the Personnel who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section 3.1 shall supersede any non-disclosure agreement by and between the Parties that would purport to address the confidentiality and security of Service Data and such agreement shall have no further force or effect with respect to Service Data.
3.2 We will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data, as described in Exhibit E attached hereto, as applicable. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Service Data by Personnel except (a) to provide the Services and prevent or address service, support or technical problems; (b) as compelled by law in accordance with Sections 3.1(b) or 3.1(c); (c) in accordance with the provisions of Section 3.4; or (d) as You expressly permit in writing. Our compliance with the provisions of Sections 3.2 through 3.5 and the Security Measures set forth in Exhibit E shall be deemed compliance with Our obligations to protect Service Data as set forth in the Agreement.
3.3 To the extent Service Data constitutes Personal Data, You and Innovative Way hereby agree that You shall be deemed to be the data controller and the relevant entity in Innovative Way Party shall be deemed to be the data processor as those terms are understood under the Applicable Data Protection Law. Unless otherwise specified as part of a Service Plan or Service Request, Service Data may be hosted by Us or our respective authorized third-party service providers in the United States, the EEA or other locations around the world. In providing the Services, We will engage entities within Innovative Way and/or other authorized service providers, to process Service Data, including and without limitation, any associated Personal Data pursuant to this Agreement within the European Economic Area (the "EEA"), the United States and in other countries and territories. Under no circumstances will any entity in Innovative Way be deemed a data controller with respect to Service Data under Applicable Data Protection Law or any relevant law or regulation of any Member State as defined in Applicable Data Protection Law.
3.4 If Personal Data originates from an Agent or End-User in the EEA, We will ensure, pursuant to Applicable Data Protection Law that, to the extent that any Service Data constitutes Personal Data, if Service Data is transferred to a country or territory outside of the EEA (a "non-EEA country"), that such transfer will only take place if: (a) the non-EEA country in question ensures an adequate level of data protection; (b) one of the conditions listed in Article 26(1) of Directive 95/46/EC (or its equivalent under any successor legislation) is satisfied; (c) done so on the basis of Innovative Way’s approved binding corporate rules known as the Innovative Way Binding Corporate Rules ("Innovative Way’s BCR") which establish adequate protection of such personal information and are legally binding on Innovative Way (Innovative Way’s BCR can be accessed here and here); or (d) the transfer is via the EU-U.S. or Swiss-U.S. Privacy Shield Frameworks. Upon Your request and subject to Your entry into Innovative Way’s Data Processing Agreement ("DPA") We will further ensure that the transfer is subject to the standard contractual clauses designed to facilitate transfers of Personal Data from the EEA to all third countries that have been adopted by the European Commission (known as the, "Model Clauses"), which have been incorporated into the DPA. As a Subscriber, You can execute Our DPA by emailing Your request to Us at firstname.lastname@example.org.
3.5 You agree that Innovative Way and Third Party Services utilized by Innovative Way to assist in providing the Services to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Service Data to the extent necessary to provide the Services, including, without limitation, in response to Your support requests, End-User complaints, Service Requests, or legal or regulatory compliance requests. If Your Service Data includes instructions to End-Users on how to use Services, We may, at any time, modify or remove, without notice, inaccurate or misleading instructions to prevent End-User confusion. Any Third Party Services utilized by Innovative Way will only be given access to Your Account and Service Data as is reasonably necessary to provide the Services and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in Section 3.2; and (b) their agreement to comply with the data transfer restrictions applicable to Personal Data as set forth in Section 3.4.
3.6 Whenever You, Your Agents or End-Users interact with our Services, We automatically receive and record information on Our server logs from the browser or device, which may include IP address, "cookie" information, the type of browser and/or device being used to access the Services. "Cookies" are identifiers We transfer to the browser or device of Your Agents or End-Users that allow Us to recognize Agent or End-User and their browser or device along with how our Services are being utilized. When We collect this information, We only use this data in aggregate form, and not in a manner that would identify Your Agents or End-Users personally. For example, this aggregate data can tell Us how often users use a particular feature of the Services, and We can use that knowledge to improve the Services.
3.7 We receive and store any information You knowingly provide to Us. For example, through the registration process for Our Services and/or through your Account settings, We may collect Personal Data such as your name, email address, phone number, credit card information and third-party account credentials (for example, your log-in credentials for third party sites that integrate with the Services as further detailed in Section 3.9) of You and Your Agents. In addition, We may communicate with You and Your Agents. For example, We may send You and Your Agents product announcements and promotional offers or contact You and Your Agents about Your use of the Services. If You or an Agent does not want to receive communications from Us, please indicate this preference by sending an email to email@example.com and provide us with the name and email address of each Agent that no longer wishes to receive these communications.
3.8 We neither rent nor sell Your Personal Data in personally identifiable form to anyone. However, we may share your Personal Data with third parties in the following ways:
a. Innovative Way may collect aggregated, encoded or anonymized data ("Usage Data") about a group or category of Services, features, metadata, or users that You, Your Agents or End-Users use the Service for certain purposes, including analytics, and which does not contain Personal Data, which is used to help understand trends in usage of the Services and determine future Service features. In addition to collecting and using Usage Data ourselves, Innovative Way may share the Usage Data with third parties, including Our subscribers, partners and service providers, for various purposes, including to help Us better understand Our subscribers’ needs and improve Our Services. We may also publish Usage Data to provide relevant information about the Services and for purposes of marketing.
b. Aggregated Personal Data that is not personally identifiable. We may anonymize the Personal Data of Your Agents or End-Users so that they cannot be individually identified, and publish this anonymized information, as segmented by industry, geography and other metrics to provide qualitative insight on customer support metrics and other relevant insights to improve the Service.
c. Aggregated Personal Data that is not personally identifiable. We may anonymize the Personal Data of Your Agents or End-Users so that they cannot be individually identified, and provide that information to our partners. We may also provide aggregate usage information to our partners for analytics purposes, who may use such information to help us understand how often and in what ways people use our Services. However, We never disclose aggregate information to a partner in a manner that would identify Your Agents or End-Users personally, as an individual.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Each Party shall retain all rights, title, and interest in and to all its respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, "Intellectual Property Rights"). The rights granted to You, Agents and End-Users to use the Service(s) under this Agreement do not convey any additional rights in the Service(s) or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title, and interest in and to the Services and all hardware, Software and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with Innovative Way and belong exclusively to Innovative Way. Innovative Way shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Agents, End-Users, or other third parties acting on Your behalf. Innovative Way®, and Innovative Way’s other product and service names and logos used or displayed in or on the Services are registered or unregistered trademarks of Innovative Way (collectively, "Marks"), and You may only use applicable Marks to identify You as a Subscriber; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Us, Our services or products.
5. THIRD PARTY SERVICES
5.1 If You decide to enable, access or use Third Party Services, be advised that Your access and use of such Third Party Services are governed solely by the terms and conditions of such Third Party Services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Third Party Services, including, without limitation, their content or the manner in which they handle, protect, manage or Process data (including Service Data) or any interaction between You and the provider of such Third Party Services. We cannot guarantee the continued availability of such Third Party Service features, and may cease enabling access to them without entitling You to any refund, credit, or Third Party compensation, if, for example and without limitation, the provider of an Third Party Service ceases to make the Third Party Service available for interoperation with the corresponding Service in a manner acceptable to Us. You irrevocably waive any claim against Innovative Way with respect to such Third Party Services. We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Third Party Services, or Your reliance on the privacy practices, data security processes or other policies of such Third Party Services. You may be required to register for or log into such Third Party Services on their respective websites. By enabling any Third Party Services, You are expressly permitting Innovative Way to disclose Your Login, as well as Service Data as necessary to facilitate the use or enablement of such Third Party Services.
6. BILLING, PLAN MODIFICATIONS AND PAYMENTS
6.1 Unless otherwise indicated on a Service Request referencing this Agreement, in the Supplemental Terms entitled "Service Specific Terms", or Additional Terms (as defined in Section 12.2) and subject to Section 6.2, all charges associated with Your access to and use of a Service ("Subscription Charges") are due in full upon commencement of Your Subscription Term, or, with respect to a Service, at the time such Service is purchased, subscribed to or otherwise deployed.
6.2 Unless otherwise specified in the Service Plan, all payment is due within five (5) days of Our notice to You that payment is due or delinquent ("Net Terms"). If You fail to pay the amount due within the Net Terms, You will be assessed a late fee of 3% of the balance for each month the payment is overdue until receipt of payment in full. If You fail to pay the balance, including any accrued penalties, within ninety (90) days, We may refer collection of any unpaid amounts to an attorney or collections agency. If We refer to an attorney or collections agency for unpaid amounts, You shall pay all reasonable attorney’s fees or collections agency fees in addition to any late fees or accrued interest.
In addition, in the event of Your failure to pay, We may suspend or terminate access to and use of such Service by You, Agents and End-Users due to Your failure to pay the amount due within the Net Terms, and You will indemnify and hold Innovative Way harmless against any claims or damages as a result of such suspension or termination of access to such Service.
6.3 If You choose to upgrade Your Service Plan or increase the number of Agents authorized to access and use a Service during Your Subscription Term (a "Subscription Upgrade"), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of Your then-current Subscription Term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, Your Subscription Charges will reflect any such Subscription Upgrades.
6.4 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade Your Service Plan. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and Innovative Way does not accept any liability for such loss.
6.5 Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively "Taxes"). You are responsible for paying Taxes, except those assessable against Innovative Way measured by its net income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
6.6 If You pay by credit card or certain other payment instruments, the Services provide an interface for the Account owner to change credit card information (e.g. upon card renewal). The Account owner will receive a receipt upon each receipt of payment by the Payment Agent, or they may obtain a receipt from within the Services to track subscription status. You hereby authorize the Payment Agent to bill Your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the Service Plan for the Services and for periodic Subscription Charges applicable to Services to which You subscribe until Your subscription to the Services terminates, and You further agree to pay any Subscription Charges so incurred. If applicable, You hereby authorize Innovative Way and the Payment Agent to charge Your credit card or other payment instrument to establish such prepaid credit. You agree to promptly update Your Account information with any changes (for example, a change in Your billing address or credit card expiration date) that may occur. The Payment Agent uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for the Payment Agent.
6.7 Payments made by credit card, debit card or certain other payment instruments for the Innovative Way Service are billed and processed by Innovative Way’s Payment Agent. To the extent the Payment Agent is not Innovative Way, the Payment Agent is acting solely as a billing and processing agent for and on behalf of Innovative Way and shall not be construed to be providing the applicable Service.
6.8 Any Subscriber that mandates Innovative Way to use a vendor payment portal or compliance portal which charges Innovative Way a subscription fee or a percentage of any uploaded invoice as a required cost of doing business, shall be invoiced by Innovative Way for the cost of this fee.
7. PROMOTIONAL CREDITS
7.1 We may, at Our sole discretion, choose to offer credits for the Services in various ways, including but not limited to, coupons, promotional campaigns, Service trial periods, referrals, etc. in exchange for Your Usage Data or feedback, including but not limited to, answering product surveys, rating Our Services, providing Service suggestions and quotes, etc. to be used for Our marketing purposes at Our discretion. We reserve the right to award credits at Our sole discretion.
7.2 Credits have no monetary or cash value and can only be used by You to offset Your subsequent payments of Subscription Charges for the applicable Service. Credits may only be applied to Subscription Charges due for the Service specifically identified by Us when issuing the credit. Credits can only be used by You and are non-transferable. To the extent that You have been awarded credits, unless the instrument (including any coupon) states an earlier expiration date, credits shall expire and no longer be redeemable twelve (12) months from the date the credit was issued.
8. CANCELLATION AND TERMINATION
8.1 Either Party may elect to terminate Your Account and subscription to a Service as of the end of Your then current Subscription Term by providing notice, in accordance with this Agreement, on or prior to the date thirty (30) days preceding the end of such Subscription Term. Unless Your Account and subscription to a Service is so terminated, Your subscription to a Service (including any and all Services) will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in an Service Request, the Subscription Charges applicable to Your subscription to a Service for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan and Services to which You have subscribed or which You have deployed, as applicable, as of the time such subsequent Subscription Term commences.
8.2 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term.
8.3 Except for Your termination under Section 8.5, if You terminate Your subscription to a Service or cancel Your Account prior to the end of Your then effective Subscription Term or We effect such termination or cancellation pursuant to Sections 2, 8.4 and 8.5, in addition to other amounts You may owe Innovative Way, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term.
If You terminate or cancel Your annual subscription prior to the end of Your then effective Subscription Term, Your annual Subscription Term will automatically be converted to consecutive month-to-month Subscription Terms used and Your Subscription Charges will be adjusted accordingly. If Your Subscription Charges contain a balance, You must immediately pay any then unpaid Subscription Charges as a result of this adjustment. For example, if You terminate nine (9) months into Your annual Subscription Term, Your annual Subscription Term will automatically be converted to nine (9) consecutive month-to-month Subscription Terms. If the Subscription Charges for nine (9) month-to-month Subscription Terms exceeds Your annual Subscription Term, You must immediately pay the remaining balance.
This amount will not be payable by You in the event You terminate Your subscription to a Service or cancel Your Account as a result of a material breach of this Agreement by Innovative Way, provided that You provide advance notice of such breach to Innovative Way and afford Innovative Way not less than thirty (30) days to reasonably cure such breach as provided for in Section 8.5 herein.
8.4 We reserve the right to modify, suspend or terminate the Services (or any part thereof), Your Account or Your and/or Agents’ or End-Users’ rights to access and use the Services, and remove, disable and discard any Service Data if We believe that You, Agents or End-Users have violated this Agreement. This includes the removal or disablement of Service Data in accordance to the Digital Millennium Copyright Act. Unless legally prohibited from doing so, We will use commercially reasonable efforts to notify You when taking any of the foregoing actions. We shall not be liable to You, Agents, End-Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Services. Any suspected fraudulent, abusive, or illegal activity by You, Agents or End-Users may be referred to law enforcement authorities at Our sole discretion.
8.5 A Party may terminate this Agreement for cause (a) upon thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If this Agreement is terminated by You in accordance with this section, We will, to the extent permitted by applicable law, refund You any prepaid fees covering the remainder of the Subscription Term after the effective date of termination. If this Agreement is terminated by Us in accordance with this section, You will pay any unpaid fees covering the remainder of the Subscription Term pursuant to all applicable Service Requests. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
8.6 Upon request by You made within thirty (30) days after the effective date of termination or expiration of this Agreement, We will make Service Data available to You for export or download as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide any Service Data, and, as provided in the Documentation, will have the right to delete or destroy all copies of Service Data in Our systems or otherwise in Our possession or control, unless prohibited by law.
9. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
9.1 Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2 We warrant that during an applicable Subscription Term (a) this Agreement and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data; and (b) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty above, Your exclusive remedies are those described in Section 8.5 herein.
9.3 EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 9.2, THE SITES AND THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
10. LIMITATION OF LIABILITY
10.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
10.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, INNOVATIVE WAY’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES FOR SUCH SERVICES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THIS AGREEMENT.
10.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, INNOVATIVE WAY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
10.4 Any claims or damages that You may have against Innovative Way shall only be enforceable against Innovative Way and not any other entity or its officers, directors, representatives or agents.
11.1 We will indemnify and hold You harmless, from and against any claim against You by reason of Your use of a Service as permitted hereunder, brought by a third party alleging that such Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an "IP Claim"). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Innovative Way for such defense, provided that (a) You promptly notify Innovative Way of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such IP Claim; and (c) You fully cooperate with Innovative Way in connection therewith. If use of a Service by You, Agents or End-Users has become, or, in Our opinion, is likely to become, the subject of any such IP Claim, We may, at Our option and expense, (a) procure for You the right to continue using the Service(s) as set forth hereunder; (b) replace or modify a Service to make it non-infringing; or (c) if options (a) or (b) are not commercially reasonable or practicable as determined by Innovative Way, terminate Your subscription to the Service(s) and repay You, on a pro-rata basis, any Subscription Charges previously paid to Innovative Way for the corresponding unused portion of Your Subscription Term for such Service(s). We will have no liability or obligation under this Section 11.1 with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service(s) by anyone other than Innovative Way; or (iii) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing.
The provisions of this Section 11.1 state the sole, exclusive and entire liability of Innovative Way to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of a Service by You, Agents or End-Users.
11.2 You will indemnify and hold Innovative Way harmless against any claim brought by a third party against Innovative Way arising from or related to Service Data, the use of a Service by You, Agents or End-Users in breach of this Agreement or matters for which You have expressly agreed to be responsible pursuant to this Agreement; provided (a) We shall promptly notify You of the threat or notice of such claim; (b) You will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, You shall not settle or compromise any claim that results in liability or admission of any liability by Us without Our prior written consent); and (c) We fully cooperate with You in connection therewith.
12. ASSIGNMENT, ENTIRE AGREEMENT AND AMENDMENT
12.1 You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement or delegate performance of Your duties under this Agreement without Our prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign this Agreement to any member of Innovative Way or in connection with any merger or change of control of Innovative Way or Innovative Way or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
12.2 This Agreement, together with any Service Request(s) and Supplemental Term(s) constitute the entire agreement, and supersede any and all prior agreements between You and Innovative Way with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any Entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either Party with respect to the subject matter hereof. There are no oral promises, conditions, representations, understandings, interpretations, or terms of any kind between the Parties, except as may otherwise be expressly provided herein.
Notwithstanding the foregoing, Supplemental Terms may apply to certain features, functionality, or services as detailed in a Supplement hereto or that We offer as part of or distinct from the Services (the "Additional Terms"). In those instances, We will notify You of such Additional Terms prior to the activation of these features, functionality, or services and the activation of these features, functionality, or services in Your Account will be considered acceptance of the Additional Terms. All such Additional Terms will be considered incorporated into this Agreement when You or any Agent authorized as an administrator in Your Account activate the feature, functionality, or service. Where there is a conflict between this Agreement and the Additional Terms, the Additional Terms will control.
12.3 We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify You not less than seven (7) days prior to the effective date of any such amendment and Your continued use of the Services following the effective date of any such amendment may be relied upon by Innovative Way as Your consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
13.1 If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
14. EXPORT COMPLIANCE AND USE RESTRICTIONS
14.1 The Services and other Software or components of the Services that We may provide or make available to You, Agents or End-Users may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Services, Software and such other components by You, Agents and End-Users. You shall not access or use the Services if You are located in any jurisdiction in which the provision of the Services, Software or other components is prohibited under U.S. or other applicable laws or regulations (a "Prohibited Jurisdiction") and You shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) You are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) You shall not permit Agents or End-Users to access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You, Agents and End-Users are located.
15. RELATIONSHIP OF THE PARTIES
15.1 The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.
16.1 All notices under this Agreement shall be delivered in writing (a) by delivery service or U.S. certified mail ("Courier") to the appropriate mailing address provided by the party; or (b) electronic mail to the electronic mail address provided for Your Account owner. All notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if otherwise delivered upon the earlier of receipt or two (2) weeks days after being deposited with a Courier.
17.1 Any dispute arising under this Agreement will be subject to binding arbitration by a single Arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The parties agree that this Agreement will be governed by and construed and interpreted in accordance with the laws of the State of Texas. The arbitration will be held in Dallas, Texas. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgment on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction.
18. ATTORNEY’S FEES
18.1 If any litigation or arbitration is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees and costs.
19. GOVERNING LAW
19.1 This Agreement shall be governed by the laws of the State of Texas, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in Dallas County, Texas. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or access to or use of the Services by You, Agents or End Users.
20. FEDERAL GOVERNMENT END USE PROVISIONS
20.1 If You are a U.S. federal government department or agency or contracting on behalf of such department or agency, each of the Services is a "Commercial Item" as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services are licensed to You with only those rights as provided under the terms and conditions of this Agreement.
21.1 Sections 1, 3.1, 4 and 9-21 shall survive any termination of our agreement with respect to use of the Services by You, Agents or End Users. Termination of such agreement shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.