Master Services Agreement

CAMEYO

MASTER SERVICES AGREEMENT

Last revised: June 20, 2024

This Master Services Agreement (“Agreement”) relates to and governs each Order (as defined in Section 1.1 below) and constitutes a binding agreement by and between Cameyo, Inc. (the “Company”), a Delaware corporation and the client or customer identified in the Order (“Client”). This Agreement takes effect on the Effective Date as defined below.

Client accepts this Agreement and agrees to be bound by its terms via: (a) using the click-through or other acceptance mechanism specified by Company; or (b) an Order. The date on which such acceptance first occurs is the “Effective Date.” The Client’s employee or other representative performing any of the above represents and warrants that (i) such person has full legal authority to bind Client to this Agreement; (ii) has read and understands this Agreement; and (iii) agrees to this Agreement.

In addition to the terms below, subject to Section 12.18 (Conflicting Terms), this Agreement incorporates by reference Company’s standard Terms of Use (currently posted at https://www.cameyo.com/terms-of-use/) as may be amended from time to time by Company in accordance with this Agreement; provided, however, that in no event will such Terms of Use be construed as limiting any of Company’s other rights or remedies under this Agreement. To the extent applicable, this Agreement also incorporates the Data Processing Addendum provided by Company (“Data Processing Addendum”) (currently posted at https://cameyo.com/dpa/).

1.   Orders

1.1.    Definition. For purposes of this Agreement, an “Order” means: (a) a quotation issued by Company in writing to Client and accepted by Client, or a completed Company order form submitted by Client and accepted by Company, that references this Agreement by URL, attachment, or otherwise, or that Company has otherwise advised Client (prior to Client’s acceptance or submission of the same) is subject to this Agreement, and (b) any other order for Company’s cloud-based services that becomes subject to this Agreement pursuant to Section 1.3 below.

1.2.    Applicability; Acceptance. To the extent of any conflict, this Agreement will govern and supersede the terms of any Order, unless and only to the extent that the parties have expressly agreed otherwise in a mutually signed writing that identifies the particular provisions of this Agreement that are meant to be superseded. In addition, and without limiting the foregoing, any purchase order or other authorization issued by Client in response to a Company quotation will operate as Client’s acceptance of the quotation, and any additional or conflicting terms included in such Client document are hereby rejected by Company and will be void and without effect except to the extent (if any) that Company expressly and specifically agrees to such other terms specifically in writing.

1.3.    Prior Agreements and Orders. If Company and Client were parties to a prior master services agreement or other contract for Company’s cloud-based services and/or ancillary services or products immediately prior to the Effective Date (collectively, the “Prior Agreement”), then by entering into this Agreement, the parties mutually agree that: (a) such Prior Agreement is hereby terminated and replaced by this Agreement as of the Effective Date, and (b) any outstanding order for Company’s services or products under the Prior Agreement is now subject to this Agreement, and is deemed to be an Order hereunder, as to any portion of the services, products, and/or payment obligations that remain unfulfilled under that order.

2.   Services Provided.

2.1.    Hosted Services. Company shall provide the Client nonexclusive access, on a hosted-services basis, to Company’s virtual application delivery platform and/or associated services as identified in the applicable Order (collectively, the “Services”) pursuant to, and subject to Client’s continuing compliance with, the terms and conditions set forth in this Agreement and such Order, including but not limited to: (a) the acceptable use policies set forth in this Agreement, and (b) any limitations or restrictions specified in the Order on the quantity or identity of End Users and/or the duration, volume, or scope of permitted use. For purposes of this Agreement and any Order, “End Users” means any individual who is permitted by Client to use the Services and if applicable, the Software (as defined below in Section 2.6.1). For clarity, End Users may include employees and personnel of Client Affiliates and other authorized third parties, and for purposes of this Agreement, “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.

2.2.    Support. Company’s technical support obligations are as set forth in Section 5.

2.3.    Software. To the extent, if any, that Company delivers any client-side Software to Client in connection with the Services, Company grants Client a limited, nonexclusive license to install and use the same on Client’s appropriate computer equipment solely in connection with (and during the period of) its authorized use of the Services, all subject to the terms and conditions of this Agreement and the applicable Order.

2.4.    Authorized Users. Unless otherwise specified in the Order, End Users may exercise Client’s rights on Client’s behalf; provided, however, that Client will ensure that all End Users accessing the Services or any Software under Client’s account or access credentials comply with the applicable terms and conditions of this Agreement, and Client will be responsible for their acts and omissions in relation to the Services or associated Software as if they were Client’s own acts or omissions.

2.5.    Related Resources and Security. Client is responsible for procuring and maintaining all computer hardware and software, internet connectivity, and other resources necessary for it and End Users to connect to and make use of the Services. Client further acknowledges that the Services may facilitate Client’s and its users’ installation, storage, deployment, dissemination, access, or use of third-party software and services, and Client (rather than Company) is responsible for obtaining (at its own expense) and complying with all licenses and other permissions that may be necessary or appropriate for the same. Client is solely responsible for the security of Client-hosted instances of the Services and Software.

2.6.    Ownership, Restrictions, and Feedback. 

2.6.1 Ownership.  As between the parties (i) Company retains sole and exclusive ownership of the Services and any software furnished or used by Company in connection with the Services (“Software”), and all  current and future worldwide rights under patent, copyright, trade secret, trademark, and moral rights laws, and other similar rights (collectively, “Intellectual Property Rights”) therein; and (ii) Client retains all Intellectual Property Rights in Customer Data. Except as expressly stated in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s Intellectual Property Rights.

2.6.2 Restrictions. Client will not, and will not allow its personnel or End Users to: (a) access or use the Services or Software for purposes of developing or testing any competing product or service; (b) reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of  the Services or Software (provided, however, that this restriction will not apply to the extent, if any, that restrictions on reverse engineering are prohibited by applicable local laws); (c ) copy, modify, or create a derivative work of the Services or Software; or (d) access or use the Services or Software in any manner that violates this Agreement, including Section 11.1. 

2.6.3 Feedback. If Client or any End User provides Company with any suggestions, feature requests, or other feedback in relation to the Software or Services, Company will be free to use (or not use) the same in any manner and without compensation, restrictions or other obligations to Client or such End User.

2.7 Modifications. 

(a) To the Services. Company may make updates or changes to the Services from time to time. Company will inform Client if Company makes an update to the Services that has a material negative impact on Client’s use of the Services (such update, a “Material Negative Change”), provided that Client has subscribed with Company to be informed about such change. In the event of a Material Negative Change, Client may terminate this Agreement upon written notice to Company in accordance with Section 4.3(e). Nothing in this Section 2.7(a) (Modifications/To the Services) limits Company’s ability to make changes required to comply with applicable law, address a material security risk, or avoid a substantial economic or material technical burden. 

(b) To the Agreement. Company may make changes to this Agreement (including the URL Terms (as defined below)) from time to time. Unless otherwise noted by Company, changes to the Agreement will become effective thirty (30) days after they are posted or Company notifies Client, except to the extent the changes apply to new functionality, or are required by applicable law, in which case they will be effective immediately. Client’s continued use of the Services once such changes are effective will constitute Client’s consent to such changes.  If Client does not agree to the revised Agreement, Client may stop using the Services and terminate this Agreement under Section 4.3(e). As used herein, “URL Terms” refers to the Company’s Terms of Use and Support Policy. 

3.   Fees and Payment

3.1.    Obligation. As consideration for Company’s provision of the Services pursuant to this Agreement, Client agrees to pay fees for the Services and, if applicable, for support or other ancillary services, as set forth in the Order. Client shall pay all invoices, in US dollars, within thirty (30) days after Client receives the applicable invoice, unless otherwise stated in an Order.

3.2.    Late Payments. Unpaid or overdue amounts (which, for clarity, do not include amounts subject to a good faith payment dispute under Section 3.5 submitted before the payment due date) are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Without limiting any other rights or remedies available to Company, Company may suspend the Services until such time as all  overdue amounts are paid in full (to the extent permitted by applicable law). 

3.3.    Taxes. Except as modified under Section 13 of this Agreement: 

1. Definitions. For purposes of this Agreement, “Taxes” means all government-imposed tax obligations (including taxes, duties, and withholdings), except those based on net income, net worth, asset value, property value, or employment. 

 

1. Tax Invoicing and Payments. Taxes are not included in the fees set forth in the Order(s) and will be separately itemized on Company’s invoices if applicable. Client will pay correctly-invoiced Taxes unless Client provides a valid tax exemption certificate. Client will pay all fee amounts without reduction for Taxes. If Taxes must be withheld from any payment to Company, then Client will increase the payment to Company so that the net amount received by Company is equal to the amount invoiced, without reduction for Taxes.

 

1. Tax Documentation. Company will timely provide customary tax documentation reasonably requested by Client. Client will provide Company with any applicable tax identification information that Company  may require under applicable law to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. Client will be liable to pay (or reimburse Company for) any taxes, interest, penalties, or fines arising out of any mis-declaration by Client.

3.4.    Pricing Changes. Company reserves the right to change the fees or applicable charges and to institute new charges and fees at the end of any initial service period (as specified in the Order) or then-current renewal period, provided Client is informed in writing and given at least 30 days thereafter to elect non-renewal if the change is not acceptable to Client. 

3.5 Payment Disputes. Any payment disputes must be submitted in good faith before the payment due date. If Company, having reviewed the dispute in good faith, determines that certain billing inaccuracies are attributable to Company, Company will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If a disputed invoice has not yet been paid, Company will apply the credit memo amount to a disputed invoice and Client will be responsible for paying the resulting net balance due on that invoice. Refunds given by Company for billing inaccuracies under this Section will only be in the form of credit for the Services. Nothing in this Agreement obligates Company to extend credit to any party.

4.   Term, Renewal, and Termination

4.1.    Agreement Term. This Agreement takes effect on the Effective Date and will continue thereafter until the end of all applicable Order terms, or until terminated as permitted herein. For clarity, termination of this Agreement will also terminate any then-outstanding Order(s).

4.2.    Order Term. Each Order will be effective for the service period specified therein, as such service period may be extended, renewed, or terminated in accordance with this Agreement and/or the applicable Order.  For clarity, Orders will not auto renew. 

4.3.    Termination. 

(a)   Either party may terminate this Agreement by written notice to the other party if no Order is in effect as of the specified termination date.

(b)   To the extent permitted by applicable law, either party may terminate this Agreement, or any affected Order(s), upon written notice if the other party is in material breach of this Agreement and fails to cure that breach within thirty (30) days after receipt of written notice of the breach (the parties acknowledge and agree that any default in Client’s payment obligations will be deemed a material breach for purposes of this clause).

(c) To the extent permitted by applicable law, either party may terminate this Agreement upon written notice if the other party becomes insolvent, voluntarily commences a case (or becomes subject to an involuntary case that is not dismissed within ninety (90) days) under Chapter 11 of the US Bankruptcy Code or successor laws or equivalent laws in other jurisdictions, makes an assignment for the benefit of creditors, or has a receiver or other custodian appointed for such party or for all or substantially all of its assets.

(d) Company may terminate this Agreement immediately on written notice if Company reasonably believes that (i) continued provision of any Service used by Client would violate applicable law(s), or (ii) Client has violated or caused Company to violate any anti-bribery laws or Export Control Laws (as defined in Section 11.1(d)).

(e) In the event that Company makes a Material Negative Change to the Services in accordance with Section 2.7(a) or a material change to this Agreement in accordance with Section 2.7(b), then if Client does not consent to such change, Client may terminate this Agreement upon written notice to Company before or within thirty (30) days of such change taking effect, and will receive a pro rata refund for any Services not utilized prior to such termination.

(f) Company may terminate this Agreement upon ninety (90) days’ written notice if Company  is transitioning to no longer providing the Services or the provision of the Services is, in Company’s opinion, no longer commercially viable, and Company will provide Client with a pro rata refund for any Services not utilized prior to such termination. 

4.4.    Effects of Termination. Upon termination by Client for cause, at Client’s request (provided such request is made within thirty (30) days of termination), Company agrees to transfer the most recent Customer Data then stored by Company as part of the Services (if any) to Client or to a third party chosen by Client. The transfer shall be provided in a format mutually acceptable to Client and Company. Upon the termination or expiration of this Agreement, Client’s access to (and Company’s obligation to provide) the Services under any Order will automatically terminate, and Client shall cease using such Services and associated Software, upon any expiration or termination of the applicable Order or this Agreement.

4.5    Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation Section 2.6, (Ownership, Restrictions and Feedback), Section 3 (Fees and Payment), Section 4.4 (Effects of Termination), this Section 4.5 (Survival), Section 6 (Confidentiality and Customer Data), Section 7 (Outage Credits), Section 8 (Representations and Warranties; Disclaimer), Section 9 (Indemnification), Section 10 (Limitation of Liability), Section 12 (General) and Section 13 (Regional Terms).

5.   Support

5.1.    Obligations. During each applicable service period for the Services, subject to Client’s payment of all applicable fees, the Company shall provide the Client with technical support and assistance to identify and correct problems with the Services (“Support”). The particular scope of and fees for Company’s Support services, and any associated response-time targets or other service levels, vary based on the Support tier indicated in the Order. The details of these tiers are as outlined in Company’s published Support policy in effect at the time of the Order or the applicable renewal thereof (the “Support Policy”). A current copy of the Support Policy is posted at https://helpcenter.cameyo.com/support/solutions/articles/80001100229-cameyo-support-services-overview. If the Order does not specify a particular Support tier, Company’s standard Support tier will apply.

5.2.    Support Requests.  To ensure each issue is logged and tracked properly, Client must submit support requests in the manner (e.g., by email) and using the contact information specified in the Support Policy for the relevant Support tier. Client acknowledges that failure to use the specified methods may result in Support delays.

5.3.    Exclusions. Professional services, customized development, training, and other services that are not specifically outlined in the Support Policy are not included in Support, are not required to be provided by Company, and (if provided) will be set forth in the Order and subject to additional fees as described in such Order.

6.   Confidentiality and Customer Data

6.1.    Definition. “Confidential Information” means (subject to the exclusions below) any non-public information relating to the business, products, services, or technologies of a party to this Agreement that is disclosed or made available to the other party in connection with the Services or this Agreement. Company’s Confidential Information includes, without limitation, any non-public information regarding features, functionality, performance, and pricing of the Services.

6.2.    Obligations. The receiving party will only use the disclosing party’s Confidential Information to exercise the receiving party’s rights and fulfill its obligations under this Agreement, and will use reasonable care to protect against the disclosure of, or unauthorized access to, the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information only to its Affiliates, employees, agents, or professional advisors (“Delegates“) who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The receiving party will ensure that it and its Delegates use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement.  This Section 6.2 (Obligations) does not affect the parties’ rights under Section 6.4(b) (Raising Issues with Public Authorities).

6.3.    Exclusions. Confidential Information does not include information that: (a) is or becomes publicly available through no fault of the receiving party, (b) was already in possession of the receiving party without confidentiality restrictions at the time of receipt from the other party, as evidenced by written records, (c) was independently developed by the receiving party without violation of this Section 6, or (d) is lawfully obtained by the receiving party from an independent third party free of any restriction and without breach of any confidentiality obligation. 

6.4 Permitted Disclosures.

1. Disclosure Required by Law. If a receiving party is required to disclose Confidential Information by law, governmental regulation, court order, subpoena, warrant, or other valid legal authority, legal procedure, or similar process, the receiving party will (i) promptly notify the other party before any disclosure of its Confidential Information, and (ii) comply with the other party’s reasonable requests regarding efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (i) and (ii) above will not apply if the receiving party determines that complying with (i) and (ii) could (x) result in a violation of the applicable law or similar process, (y) obstruct a governmental investigation, or (z) lead to death or serious physical harm to an individual.

1. Raising Issues with Public Authorities. Nothing in this Agreement prevents any party from raising issues of non-compliance with the law with any relevant public authority. To the extent this Section 6.4(b) conflicts with any other part of this Agreement, this Section will govern.

6.5   Customer Data. Company will only access, use, or otherwise process Customer Data in accordance with the Data Processing Addendum and will not access, use, or process Customer Data for any other purpose. “Customer Data” means data provided to Company by Client or its End Users through use of the Services and/or Software, and any unique output data that the Services or Software generate for Client or its End Users, derived from that data. Company has implemented and will maintain technical, organizational, and physical safeguards to protect Customer Data, as further described in the Data Processing Addendum. Client is responsible for any consents and notices required to permit (a) Client’s use and receipt of the Services and/or Software, and (b) Company’s accessing, storing, and processing of data provided by Customer (including Customer Data) under the Agreement.  

7.   Outage Credits.

7.1.    Definition. A “Service Outage” is defined as a measurable time that the Services are unavailable or inoperable, not including: (a) planned maintenance or repair (which may occur on a weekly basis or otherwise as notified by Company), or (b) downtime due to Client’s systems, natural disasters, general internet outages, and other causes outside of Company’s reasonable control. 

7.2.    Credit. If Client notifies Company in writing, within twenty (20) days after the end of a billing period, of a Service Outage experienced by Client during that billing period, Company will confirm the duration of the Service Outage and provide Client with a credit (against future invoices), calculated as a percentage of the Service subscription fees paid for that billing period. The percentage will reflect the duration of the Service Outage (as determined by Company) in relation to the total time in the billing period. Unless required by applicable law, this credit, together with Company’s applicable Support obligations under Section 5, shall be Client’s sole and exclusive remedy and Company’s entire obligation with respect to downtime or other unavailability or impairment of the Services.

8.   Representations and Warranties; Disclaimer

8.1 Mutual Representations and Warranties. Each party represents and warrants that (a) it has full power and authority to enter into the Agreement, and (b) it will comply with all laws applicable to its provision, receipt, or use of the Services and Software, as applicable.

8.2.    Company’s Representations and Warranties. Company represents and warrants that:

(a)   to the best of its knowledge, the Services and Software, as furnished by Company and used in accordance with this Agreement and any applicable Order, do not infringe the Intellectual Property Rights of any third party; and

(b)   Company will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for planned downtime.

8.3.    Client’s Representations and Warranties. Client represents and warrants that:

(a)   Client has the right to use the Customer Data as contemplated in this Agreement, and to disclose to Company and permit Company to process the Customer Data in connection with the Services provided hereunder; and

(b)   Client has obtained or will timely obtain, and will at all times comply with and ensure that its customers and other End Users comply with, any necessary licenses for third-party software or other materials that Client or such customers or end-users may choose to install, store, deploy, disseminate, access, use, or otherwise exploit through or in connection with the Services.

8.4.    Warranty Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 8, COMPANY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS,IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION (A) ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR ERROR-FREE OR UNINTERRUPTED USE OF THE SERVICES, AND (B) ANY REPRESENTATIONS ABOUT CONTENT OR INFORMATION ACCESSIBLE THROUGH THE SERVICES.

9.   Indemnification

9.1.    Company’s Indemnification Obligations.

(a)   Subject to Section 9.3 (Conditions), Company shall defend Client, at Company’s expense, against any claim, demand, suit, or proceeding brought by an unaffiliated third party (including any governmental authority) before a court or governmental tribunal (a “Third-Party Legal Proceeding”) against Client alleging that the Software or Services, as furnished by Company and used in accordance with this Agreement and any applicable Order, infringe such third party’s Intellectual Property Rights (each, a “Client Claim”), and Company will indemnify and hold Client harmless from and against any reasonable attorney fees and costs arising from, and damages finally awarded against Client as a result of, such Client Claim, or for  amounts paid by Client under a settlement of such Client Claim approved in advance by Company in writing; provided, however, that Company will have no obligations under this Section with respect to allegations of infringement or misappropriation to the extent the same are caused by: (i) the use or combination of the Software or Services with any software or other products, services, technologies or materials not furnished by Company; (ii) modifications to the Software or Services that are not made by or for Company; (iii) use of the Software or Services in violation of this Agreement or Company’s applicable user documentation; or (iv) any breach of this Agreement by Client. Notwithstanding the foregoing, Company will have no indemnification obligations under this Agreement for any claims or other damages arising out of or relating to Services or Software offered free of charge. 

(b)   If Client’s use of the Software or Services becomes, or in Company’s opinion is likely to become, the subject of an infringement claim, Company may, at its sole option and expense, either: (i) procure for Client the right to continue using the Software and Services, (ii) replace or modify the Software and Services so that they are non-infringing and remain functionally equivalent in material respects, or (iii) terminate this Agreement or any affected Orders on the date specified in Company’s written notice of such termination and refund to Client all amounts paid by Client for Services not provided after termination.

9.2.    Client’s Indemnification Obligations.

(a)   Subject to Section 9.3 (Conditions), Client shall defend Company and its Affiliates, at Client’s expense, against any Third-Party Legal Proceeding brought against Company to the extent arising from (a) any Customer Data, (b) Client’s or any End User’s use of the Services or Software in breach of this Agreement, or (c) any breach of Client’s representations and warranties set forth in Sections 8.1 or 8.3 (each, a “Company Claim”), and Client will indemnify and hold Company harmless from and against any reasonable attorney fees and costs arising from, and damages finally awarded against Company or its Affiliates as a result of, such Company Claim, or for amounts paid by Company or its Affiliates under a settlement of such Company Claim approved in advance by Client in writing.  

(b) Notwithstanding the foregoing, Client will have no obligations under this Section with respect to any claim to the extent based on use of Customer Data by Company in violation of this Agreement.

9.3 Conditions. Sections 9.1(Company’s Indemnification Obligations) and 9.2 (Client’s Indemnification Obligations) are conditioned on the following:

(a) The indemnified party must promptly notify the indemnifying party in writing of any allegation(s) that preceded the Third-Party Legal Proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s) and Third-Party Legal Proceeding. If breach of this Section 9.3 prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party’s obligations under Section 9.1 (Company’s Indemnification Obligations) or Section 9.2 (Client’s Indemnification Obligations) (as applicable) will be reduced in proportion to the prejudice.

(b) The indemnified party must tender sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party and reasonably cooperate, at the indemnifying party’s request and expense, in assisting with the defense of the Third-Party Legal Proceeding, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.

9.4 Sole Rights and Obligations.  Without affecting either party’s termination rights and to the extent permitted by applicable law, this Section 9 (Indemnification) states the parties’ sole and exclusive remedy under this Agreement for any third-party allegations of Intellectual Property Rights infringement. 

10. Limitations of Liability

10.1. Waiver. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO SECTION 10.3 (UNLIMITED LIABILITIES), NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND, OR LOST REVENUES, PROFITS, SAVINGS OR GOODWILL, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2. Limitation on Amount of Liability. SUBJECT TO SECTION 10.3 (UNLIMITED LIABILITIES), IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID OR PAYABLE TO COMPANY HEREUNDER IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY; PROVIDED, HOWEVER, THAT (A) WITH RESPECT TO EITHER PARTY’S LIABILITY FOR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, OR TO ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, THE CAP ON EACH PARTY’S TOTAL AGGREGATE LIABILITY WILL INSTEAD BE EQUAL TO FIVE TIMES (5X) THE FEES PAID OR PAYABLE TO COMPANY HEREUNDER IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY, AND (B) WITH RESPECT TO ANY CLAIMS OR DAMAGES ARISING OUT OF OR RELATING TO SERVICES OR SOFTWARE OFFERED FREE OF CHARGE, COMPANY’S TOTAL AGGREGATE LIABILITY WILL BE LIMITED TO FIVE THOUSAND U.S. DOLLARS ($5,000). 

10.3 Unlimited Liabilities.  Nothing in the Agreement excludes or limits either party’s liability for:

(a) its fraud or fraudulent misrepresentation;

(b) its infringement of the other party’s Intellectual Property Rights;

(c) its payment obligations under the Agreement; or

(d) matters for which liability cannot be excluded or limited under applicable law.

11. Acceptable Use and Suspension

11.1. Violations. Client  will not, and will not allow its End Users to, use or access the Services to violate the security or integrity of any network, computer or communications system, software application, or network computing device (collectively “System”), or to engage in any prohibited activities. Prohibited activities include:

(a)   Unauthorized Access – Accessing or using any System without permission, or through any interface other than those furnished or specified by Company, including attempting to probe, scan, or test the vulnerability of a System or to breach any security or authentication measure used by the System.

(b)   Interception – Monitoring of data or traffic on a System without permission.

(c)  Illegal, Harmful, or Offensive Content – Using, or encouraging, promoting, facilitating or instructing others to use, the Services or System for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, or offensive.

(d)   Illegal Activities – Any illegal activities, including advertising, transmitting, or otherwise making available gambling sites or services or disseminating, promoting or facilitating child pornography, and any activities that breach, are intended to breach, or cause the breach of, Export Control Laws, or that are subject to the International Traffic in Arms Regulations (ITAR) maintained by the U.S. Department of State. “Export Control Laws” means all applicable export and re-export control laws and regulations, including (i) the Export Administration Regulations (EAR) maintained by the U.S. Department of Commerce, (ii) trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, and (iii) the ITAR.

(e) Other Content – Any content or activities that  transmit, store, or process health information subject to the United States Health Insurance Portability and Accountability Act (HIPAA), except as permitted by an executed HIPAA Business Associate Agreement.

(e)   Harmful or Fraudulent Activities – Activities that may be harmful to others, including Company’s other customers, or to Company’s operations, reputation or other legal or business interests, including offering or disseminating fraudulent goods, services, schemes, or promotions or otherwise engaging in deceptive practices.

(f)  Infringing Content – Content or activities that infringe or misappropriate the Intellectual Property Rights of others.

(g)  Offensive Content – Content or activities that are defamatory, obscene, abusive, excessively violent, inciting of violence, harassing, unfair or deceptive, or that create risk to any person’s health or safety, compromise national security, improperly expose trade secrets or confidential information, promote illegal drugs, are invasive of privacy, or are otherwise objectionable.

(h)   Harmful Content – Content, activities, or technologies that may damage, interfere with, surreptitiously intercept, or expropriate any System, program, or data, including viruses, Trojan horses, worms, time bombs, or cancel bots.

11.2. Copyrighted Materials. Company responds to notices of alleged copyright infringement and terminates access to the Services in the event of infringement in appropriate circumstances as required to maintain safe harbor for online service providers under the U.S. Digital Millennium Copyright Act.

11.3. Client Content and Third-Party Software. Client is solely and exclusively responsible for any data, content, and other materials that Client, or any End User, distributes, copies, creates, or otherwise makes available through Company’s Services, and for obtaining and complying with all licenses and other permissions that may be necessary or appropriate for Client and/or its End Users’ installation,  storage, deployment, dissemination, accessing, use and/or other exploitation of any third-party software, data, content, or materials through or in connection with Company’s Services. 

11.4. Suspension. 

 (a) If Company becomes aware that Client’s or any End User’s use of the Services violates this Agreement, Company will notify Client and request that Client correct the violation. If Client fails to correct the violation within 24 hours of Company’s request, then Company may suspend all or part of Client’s use of the Services until the violation is corrected. 

 (b) Without limiting Company’s rights under Section 11.4(a), Company may also immediately suspend all or part of Client’s use of the Services if: (i) Company reasonably believes suspension is needed to protect the Services, Company’s infrastructure supporting the Services, or any other customer of the Services (or their end users); (ii) there is suspected unauthorized third-party access to the Services; (iii) Company reasonably believes that immediate suspension is required to comply with any applicable law; or (iv) Client is in breach of Sections 2.6.2 (Restrictions) or 11.1(Violations). Company will lift any such suspension when the circumstances giving rise to the suspension have been resolved, provided that nothing in this Section will in any way limit Company’s rights under this Agreement or at law or in equity. At Client’s request, Company will, unless prohibited by applicable law, notify Client of the basis for the suspension as soon as is reasonably possible.

 

12. General

12.1. Compliance with Laws. Each party shall perform all of its obligations under this Agreement in compliance at all times with all applicable foreign, federal, state and local statutes, orders and regulations, including those relating to privacy and data protection and applicable export and import control laws and regulations.

12.2. Governing Law. 

(a) For U.S. City, County, and State Government Entities. If Client is a U.S. city, county, or state government entity, then the Agreement will be silent regarding governing law and venue.

(b) For U.S. Federal Government Entities. If Client is a U.S. federal government entity, then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES OF AMERICA, EXCLUDING ITS CONFLICT OF LAWS RULES. SOLELY TO THE EXTENT PERMITTED BY FEDERAL LAW, (I) THE LAWS OF THE STATE OF CALIFORNIA (EXCLUDING CALIFORNIA’S CONFLICT OF LAWS RULES) WILL APPLY IN THE ABSENCE OF APPLICABLE FEDERAL LAW; AND (II) FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN SANTA CLARA COUNTY, CALIFORNIA.

(c) For All Other Entities. If Client is any entity not identified in Sections 12.2 (a) (U.S. Governing Law for U.S. City, County, and State Government Entities) or (b) (U.S. Governing Law for Federal Government Entities), then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING THAT STATE’S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.

12.3. Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.

12.4. Assignment. Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where (a) the assignee has agreed in writing to be bound by the terms of this Agreement, and (b) the assigning party has notified the other party of the assignment. Any other attempt to assign is void. 

12.5. Notices. Under this Agreement, notices to Client must be sent to the email provided on Client’s latest order form, or other notification email address provided in writing by Client to Company, and notices to Company must be sent to [email protected]. Notice will be treated as received when the email is sent. Client is responsible for keeping its notification email address current. Either party may change its email for notices by providing written notice to the other party as set forth in this Section

12.6. Amendments. Except as stated in Section 2.7(b) (Modifications: To the Agreement) or in the Data Processing Addendum, any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.

12.7. Waivers. No delay or failure of a party to exercise any of its rights, powers or remedies or to require satisfaction of a condition under this Agreement will impair any such right, power, remedy, or condition, nor will any delay or omission be construed to be a waiver of any breach, default or noncompliance under this Agreement. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of the same provision on any other occasion. To be effective, a waiver must be in writing signed by the party granting the waiver and will be effective only to the extent specifically set forth in such writing.

12.8. Severability. If a provision of this Agreement is unenforceable, invalid, or illegal, then the intent of the parties is that (a) the validity, legality, and enforceability of the remaining provisions of the Agreement are not affected or impacted in any way and the remainder of this Agreement is enforceable between the parties, and (b) the unenforceable, invalid, or illegal provision will be modified and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law.

12.9 No Agency. This Agreement does not create any agency, partnership, or joint venture between the parties.

12.10 Change of Control. If a party experiences a change of control other than as part of an internal restructuring or reorganization (for example, through a stock purchase or sale, merger, or other form of corporate transaction), that party will give written notice to the other party within 30 days after the change of control. Nothing in this Section 12.10 will limit Company’s rights under Section 4.3(d). 

12.11 Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, or war.

12.12 Subcontracting. Company may subcontract obligations under the Agreement but will remain liable to Client for any subcontracted obligations.

12.13 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.

12.14. Construction. The headings of sections of this Agreement are for convenience purposes only and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”

12.15. Emails. The parties may use emails to satisfy written approval, notice, and consent requirements under the Agreement.

12.16. Publicity. Company may use Client’s name and trademarks, service marks, logos and other distinctive brand features in online or offline promotional materials of the Services. Any such use will inure to the benefit of Client. 

12.17.  Entire Agreement. This Agreement, together with all Orders and other documents incorporated herein by reference, constitutes the final agreement between the parties and is the complete and exclusive expression of the parties’ agreement to the matters contained in the Agreement. The Agreement terminates any Prior Agreement (as set forth in Section 1.3) and supersedes and merges all other prior and contemporaneous understandings, agreements or representations by or among the parties, written or oral, that may have related in any way to the subject matter hereof. 

12.18 Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order (of decreasing precedence): the Data Processing Addendum, the remainder of the Agreement (excluding the URL Terms), any Order (subject to Section 1.2), and the URL Terms . 

12.19 Conflicting Languages. If this Agreement is translated into any language other than English, and there is a discrepancy between the English text and the translated text, the English text will govern unless expressly stated otherwise in the translation.

13. Regional Terms. Client agrees to the following modifications to the Agreement if Client’s billing address is in the applicable region as described below:

Asia Pacific (all regions excluding Australia, Japan, India, New Zealand, Singapore) and Latin America

Section 12.2 (Governing Law) is replaced as follows:

12.2 Governing Law; Arbitration.

(a) ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED COMPANY PRODUCTS OR SERVICES (INCLUDING ANY DISPUTE REGARDING THE INTERPRETATION OR PERFORMANCE OF THE AGREEMENT) (“Dispute“) WILL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, USA, EXCLUDING CALIFORNIA’S CONFLICTS OF LAWS RULES.

(b) The parties will try in good faith to settle any Dispute within 30 days after the Dispute arises. If the Dispute is not resolved within 30 days, it must be resolved by arbitration by the American Arbitration Association’s International Centre for Dispute Resolution in accordance with its Expedited Commercial Rules in force as of the date of this Agreement (“Rules“).

(c) The parties will mutually select one arbitrator. The arbitration will be conducted in English in Santa Clara County, California, USA.

(d) Either party may apply to any competent court for injunctive relief necessary to protect its rights pending resolution of the arbitration. The arbitrator may order equitable or injunctive relief consistent with the remedies and limitations in the Agreement.

(e) Subject to the confidentiality requirements in Subsection (g), either party may petition any competent court to issue any order necessary to protect that party’s rights or property; this petition will not be considered a violation or waiver of this governing law and arbitration section and will not affect the arbitrator’s powers, including the power to review the judicial decision. The parties stipulate that the courts of Santa Clara County, California, USA, are competent to grant any order under this Subsection 12.2(e).

(f) The arbitral award will be final and binding on the parties and its execution may be presented in any competent court, including any court with jurisdiction over either party or any of its property.

(g) Any arbitration proceeding conducted in accordance with this Section 12.2 (Governing Law; Arbitration) will be considered Confidential Information under Section 6 (Confidentiality and Customer Data), including: (i) the existence of, (ii) any information disclosed during, and (iii) any oral communications or documents related to, the arbitration proceedings. In addition to the disclosure rights under Section 6 (Confidentiality and Customer Data), the parties may disclose the information described in this Subsection 12.2(g) to a competent court as may be necessary to file any order under Subsection 12.2(e) or execute any arbitral decision, but the parties must request that those judicial proceedings be conducted in camera (in private).

(h) The parties will pay the arbitrator’s fees, the arbitrator’s appointed experts’ fees and expenses, and the arbitration center’s administrative expenses in accordance with the Rules. In its final decision, the arbitrator will determine the non-prevailing party’s obligation to reimburse the amount paid in advance by the prevailing party for these fees.

(i) Each party will bear its own lawyers’ and experts’ fees and expenses, regardless of the arbitrator’s final decision regarding the Dispute.

Asia Pacific – Australia:

A new Section 8.4(a) is added as follows:

8.4(a)  This Section 8.4(a) applies only if the Services are subject to statutory guarantees under the Australian Competition and Consumer Act 2010 (“ACCA”). Applicable laws, including the ACCA, may confer rights and remedies into this Agreement that cannot be excluded, and which are not excluded by this Agreement. To the extent that the applicable laws permit Company to limit their operation, Company’s and its Affiliates’ liability under those laws will be limited at its option, to the supply of the services again, or payment of the cost of having the services supplied again. 

Section 10.2 (Limitation on Amount of Liability) is replaced with the following: 

10.2. Limitation on Amount of Liability. SUBJECT TO SECTION 10.3 (UNLIMITED LIABILITIES), IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID OR PAYABLE TO COMPANY HEREUNDER IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY OR AUD$1,000 (WHICHEVER IS GREATER); PROVIDED, HOWEVER, THAT (A) WITH RESPECT TO EITHER PARTY’S LIABILITY FOR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, OR TO ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, THE CAP ON EACH PARTY’S TOTAL AGGREGATE LIABILITY WILL INSTEAD BE EQUAL TO FIVE TIMES (5X) THE FEES PAID OR PAYABLE TO COMPANY HEREUNDER IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY OR AUD$1,000 (WHICHEVER IS GREATER), AND (B) WITH RESPECT TO ANY CLAIMS OR DAMAGES ARISING OUT OF OR RELATING TO SERVICES OR SOFTWARE OFFERED FREE OF CHARGE, COMPANY’S TOTAL AGGREGATE LIABILITY WILL BE LIMITED TO FIVE THOUSAND U.S. DOLLARS ($5,000). 

Section 12.2(c) (Governing Law) is amended by inserting the following text at the end of that Section: “IF APPLICABLE LAW PREVENTS A DISPUTE FROM BEING RESOLVED IN A CALIFORNIA COURT, THEN CLIENT MAY FILE THE DISPUTE IN CLIENT’S LOCAL COURTS. IF APPLICABLE LAW PREVENTS CLIENT’S LOCAL COURT FROM APPLYING CALIFORNIA LAW TO RESOLVE A DISPUTE, THEN THE DISPUTE WILL BE GOVERNED BY THE APPLICABLE LOCAL LAWS OF CUSTOMER’S COUNTRY, STATE, OR OTHER PLACE OF RESIDENCE.” 

Section 12.17 (Entire Agreement) is amended by inserting the following text at the end of that Section: “Nothing in this Agreement excludes a party’s liability for prior written or oral misrepresentation.”

Europe, Middle East, Africa – Algeria, Bahrain, Jordan, Kuwait, Libya, Mauritania, Morocco, Oman, Palestine, Qatar, Tunisia, Yemen, Egypt, Israel, United Arab Emirates and Lebanon:

A new Section 4.6 is added as follows:

4.6 No requirement for Court Order. Both parties acknowledge and agree that a court order will not be required to give effect to any termination or amendment of the Agreement or to give effect to any other section of the Agreement.

Section 12.2 (Governing Law) is replaced as follows:

12.2  Governing Law; Arbitration.

(a) ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED COMPANY PRODUCTS OR SERVICES (INCLUDING ANY DISPUTE REGARDING THE INTERPRETATION OR PERFORMANCE OF THE AGREEMENT) (“Dispute“) WILL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, USA, EXCLUDING CALIFORNIA’S CONFLICTS OF LAWS RULES.

(b) The parties will try in good faith to settle any Dispute within 30 days after the Dispute arises. If the Dispute is not resolved within 30 days, it must be resolved by arbitration under the Arbitration Rules of the London Court of International Arbitration (LCIA) (“Rules“), which Rules are deemed to be incorporated by reference to this Section.

(c) The parties will mutually select one arbitrator. The arbitration will be conducted in English and the place and the legal seat of the arbitration will be the Dubai International Financial Center, DIFC, Dubai UAE.

(d) Either party may apply to any competent court for injunctive relief necessary to protect its rights pending resolution of the arbitration. The arbitrator may order equitable or injunctive relief consistent with the remedies and limitations in the Agreement.

(e) The arbitral award will be final and binding on the parties and its execution may be presented in any competent court, including any court with jurisdiction over either party or any of its property.

(f) Any arbitration proceeding conducted in accordance with this Section 6 (Governing Law; Arbitration) will be considered Confidential Information under Section 6 (Confidentiality and Customer Data) including: (i) the existence of, (ii) any information disclosed during, and (iii) any oral communications or documents related to, the arbitration proceedings. In addition to the disclosure rights under Section 6 (Confidentiality and Customer Data), the parties may disclose the information described in this Subsection 12.2(f) to a competent court as may be necessary to execute any arbitral decision, but the parties must request that those judicial proceedings be conducted in camera (in private).

(g) The parties will pay the arbitrator’s fees, the arbitrator’s appointed experts’ fees and expenses, and the arbitration center’s administrative expenses in accordance with the Rules. In its final decision, the arbitrator will determine the non-prevailing party’s obligation to reimburse the amount paid in advance by the prevailing party for these fees.

(h) Each party will bear its own lawyers’ and experts’ fees and expenses, regardless of the arbitrator’s final decision regarding the Dispute.