Customer Terms and Conditions
Last Updated: December 8, 2020
These Customer Terms and Conditions (the “Terms“) apply to, and govern, the executed ordering document (such as an Order Form, Sales Order, Proposal, or Quote) to which they are attached, hyperlinked, or otherwise incorporated (the “Order“). These Terms are hereby incorporated by reference into, and made a part of, such Order. These Terms and the Order are collectively referred to as this “Agreement“. To the extent of any conflict or inconsistency between a provision in these Terms and a provision in the Order, the former shall prevail, unless the Order specifically states otherwise.
The Agreement constitutes a binding agreement between Approve.com Ltd. (or the other Approve.com entity specified in the Order, if applicable) (“Company“) and the customer specified in the Order (“Customer“). An individual entering into this Agreement on behalf of the Customer, represents that he/she has the right, authority and capacity to act on behalf of the Customer and to bind the Customer to this Agreement. Company and Customer may be collectively referred to herein as the “Parties“, and each individually as a “Party“.
“Content” means any text, data, information, reports, files, images, graphics, software code, or other content.
“Customer Content” means any Content and/or Confidential Information submitted or uploaded to, or transmitted through, the Platform, or otherwise provided or made available to Company, by or on behalf of Customer.
“Company Content” means any Content (excluding Customer Content) appearing on or in, or otherwise provided or made available via, the Platform.
“Intellectual Property Rights” means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, whether registered or unregistered, and whether vested, contingent, or future) in and to inventions, discoveries, works of authorship, designs, software, technical information, databases, know-how, mask works, methods, technology, and other intellectual property, and includes but is not limited to patents, copyrights and similar authorship rights, moral (and similar personal) rights, mask work rights, data and database rights, trade secret rights and similar rights in confidential information and other non-public information, design rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing.
“Platform” means the Company’s vendor management and procurement automation software-as-a-service (SaaS).
“Subscription Scope” means any Platform usage or consumption limitations and parameters (for example, as to the volume of Users, vendors, available features and functionalities, etc.) specified in the Order.
“Sensitive Data” means any (i) categories of data enumerated in Article 9(1) of the European Union’s General Data Protection Regulation (Regulation 2016/679, aka the GDPR) or any successor law; (ii) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS“); (iii) Nonpublic Personal Information (NPI) (as defined by the Gramm-Leach-Bliley Act and its implementing rules and regulations) or Personal Health Information (PHI) data (as defined by the Health Insurance Portability and Accountability Act and its implementing rules and regulations); or (iv) any data similar to the foregoing that is protected under foreign or domestic laws.
“Usage Statistics” means any non-Customer-identifying information, data, reporting, suggestions, analyses, and/or intelligence relating to the operation, support, and/or Customer’s use, of the Platform and/or Company Content (such as metadata, aggregated data, analytics, security findings or discoveries, etc.).
“Users” means Customer’s employees who are authorized by Customer to use the Platform, and for whom Customer (or Company, at Customer’s request) has supplied a user identification and password for the Platform. Customer shall remain primarily responsible and liable for its Users’ compliance with the terms and conditions of this Agreement.
Subject to the terms and conditions of this Agreement (including without limitation Customer’s payment of all applicable Fees), Company grants Customer a limited, personal, non-exclusive, non-transferable, non-sublicensable right and license, during the Subscription Term (defined below), to internally access and use the Platform and Company Content for its end-use (collectively, the “Subscription“). Except for the Subscription, Customer is granted no other right or license in or to the Platform or Company Content, and any right not expressly granted is hereby reserved by Company and its licensors. Company may, but is not obligated to, monitor Customer’s use of the Platform. The Subscription is subject to the Subscription Scope, and Customer shall not use any technical or other means within, or external to, the Platform to exceed or circumvent the Subscription Scope. Company may, from time to time, modify and replace the features and functionalities (but not material functionalities to which Customer is entitled under the Order, unless it improves the material functionality), as well as the user interface, of the Platform.
3. ACCOUNT; DELIVERY AND HOSTING
3.2 Delivery and Hosting. The Platform is made available to Customer via Company’s website (currently www.approve.com). The hosting of the Platform (and related processing) will be provided by a third-party cloud hosting provider selected by Company (“Hosting Provider“).
4. USAGE RESTRICTIONS
As a condition to (and except as expressly permitted by) the Subscription, Customer shall not do (or permit or encourage to be done) any of the following Subscription restrictions (in whole or in part): (a) copy, manufacture, “frame” or “mirror” the Platform or Company Content; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Platform or Company Content to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Platform or Company Content; (d) modify, adapt, translate, or create a derivative work of the Platform or Company Content; (e) decompile, disassemble, decrypt, reverse engineer, or extract or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) or internal composition of, the Platform or Company Content; (f) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Platform or Company Content; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Platform or Company Content; (h) use the Platform or Company Content to develop any service or product that is the same as (or substantially similar to), or otherwise competitive with, the Platform or Company Content; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Platform or Company Content; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of servers/machines, Users, vendors, or endpoints that directly access or use the Platform or Company Content (sometimes referred to as ‘virtualisation’, ‘multiplexing’ or ‘pooling’); (k) forge or manipulate identifiers in order to disguise the origin of any Customer Content; (l) take any action that imposes or may impose (as determined in Company’s reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Platform or Company Content, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure; or (m) use the Platform or Company Content in connection with any internal performance testing or benchmark studies of which the results are designed or likely to be published in any form or media, or otherwise made available to the public, without Company’s prior express written approval, or otherwise disclose or publish such results.
5.1 Support Services. Subject to Customer remaining current all payment obligations under this Agreement, Customer will be entitled to receive the Platform technical support and maintenance services specified in the Service Level Agreement (SLA) set forth in Schedule A hereto ( the “Support Services” and “SLA“, respectively).
5.2 Professional Services. Company shall provide whatever professional services are specified in the Order (if any); otherwise, Company is not obligated to provide any professional services. The professional services may be further described in sequential Professional Services Statements of Work referencing the Order, which, once mutually signed, will be deemed attached to this Agreement (each, a “Professional Services SOW“).
5.3 General. Services hereunder (“Services“) will be performed by Company and/or its corporate affiliates (each, an “Affiliate“), and are provided for the benefit of Customer only. With Customer’s prior written approval (not to be unreasonably withheld, conditioned, or delayed) Company may subcontract Services (in whole or in part) to a third party contractor, and Company shall remain primarily responsible for such contractor’s performance of the Services.
6.1 Fees. Customer shall pay Company the fees and other charges set forth in the Order (the “Fees“).
6.2 Payment Terms. Except as may be expressly stated otherwise in the Order or these Terms: (a) all Fees are stated, and are to be paid, in US Dollars; (b) all Fees are payable in advance (except for Fees for overages, which are charged in arrears), and shall be paid within thirty (30) days of receipt of invoice; (c) all payments and payment obligations under this Agreement are non-refundable, and are without any right of set-off or cancellation; and (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of the rate of one and a half percent (1.5%) per month and the highest amount permitted by applicable law.
6.3 Taxes. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges (except for taxes based upon Company’s net income), as well as transportation or insurance. Customer must provide a valid tax exemption certificate if claiming a tax exemption. In the event that Customer is required by any law applicable to it to withhold or deduct taxes for any payment under this Agreement, then the amounts due to Company shall be increased by the amount necessary so that Company receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction.
7.1 Company Materials. Company (and/or its licensors and suppliers, as applicable) is, and shall be, the sole and exclusive owner of all right, title and interest (including without limitation all Intellectual Property Rights) in and to: (a) the Platform; (b) Company Content; (c) Company’s Confidential Information; (d) any feedback, suggestions, or ideas for or about the Platform or Company Content (collectively, “Feedback“); (e) Usage Statistics; and (f) any improvements, derivative works, and/or modifications of/to any of the foregoing, regardless of inventorship or authorship. For the avoidance of doubt, it is acknowledged and agreed that Company (alone and/or together with its Affiliates and service providers) may generate and commercially exploit Usage Statistics, as well as use Customer Content for the purpose of enhancing the Platform, and nothing in this Agreement shall be deemed to prohibit or otherwise limit such activities.
Customer shall make, and hereby irrevocably makes, all assignments and/or waivers necessary or reasonably requested by Company to ensure and/or provide Company (and/or its designee(s)) the ownership rights set forth in this paragraph.
7.2 Customer Content. As between the Parties, Customer is, and shall be, the sole and exclusive owner of all Customer Content.
- Unless the Platform specifically requests otherwise, Customer shall ensure that no Customer Content includes or links to Sensitive Data.
- Customer represents and warrants that: (a) no processing of Customer Content under this Agreement (whether by Company, its Affiliates, or the Hosting Provider) will violate any law or regulation, proprietary right, or privacy right; and (b) it has obtained and will maintain all required consents and licenses, and will maintain all ongoing legal bases under relevant privacy laws or regulations (if applicable), necessary to provide, make available, and otherwise expose Customer Content to Company, its Affiliates, and the Hosting Provider.
- The Platform is not intended to, and will not, operate as a data storage or archiving product or service, and Customer agrees not to rely on the Platform for the storage of any Customer Content whatsoever. Customer is solely responsible and liable for the maintenance and backup of all Customer Content.
8.1 Each Party shall protect the other’s Confidential Information (defined below) from unauthorized use, access or disclosure in the same manner as each Party protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each Party may use the other Party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement, and may disclose such Confidential Information:
- solely to its employees and contractors who have a need to know such Confidential Information for the foregoing purposes, and who are bound by terms of confidentiality substantially similar to those set forth herein (and the receiving Party shall be primarily liable for any breach by such persons);
- as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; and/or
- as reasonably necessary to comply with any applicable law or regulation.
8.2 Notwithstanding anything to the foregoing: (i) Company shall be entitled to disclose Customer’s Confidential Information to Company’s Affiliates, as well as to the Hosting Provider (defined below) and to Company’s subcontractors under this Agreement; and (iii) pricing and payment terms under this Agreement are confidential to Company, and Customer shall not disclose such Confidential Information to any third party (except to its professional advisors with a need to know), without Company’s prior express written consent.
8.3 “Confidential Information” means any information disclosed by one Party (and/or its Affiliates) to the other Party (and/or its Affiliates), regardless of form, which is identified as confidential or proprietary, and/or which a reasonable business person would understand to be confidential given the nature of the information and/or the circumstances of disclosure, and includes, but is not limited to, technical data, computer programs and software code (including firmware and source code), ideas, inventions, algorithms, know-how, analyses, specifications, processes, techniques, formulas, designs and drawings, and other technology and intellectual property. Confidential Information shall not include information that: (A) was already known (without restriction) to the receiving Party at the time of disclosure by the disclosing Party; (B) was or is obtained by the receiving Party from 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 the use of the disclosing Party’s Confidential Information.
THE PLATFORM (INCLUDING WITHOUT LIMITATION ANY REPORTS OR OUTPUT), COMPANY CONTENT, SERVICES, OUTPUT, AS WELL AS ANY OTHER GOODS AND SERVICES PROVIDED OR MADE AVAILABLE BY COMPANY OR ITS AFFILIATES HEREUNDER (COLLECTIVELY, THE “COMPANY MATERIALS“) ARE PROVIDED AND MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL DEFECTS, AND ALL EXPRESS, IMPLIED AND STATUTORY CONDITIONS AND WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION, NON-INFRINGEMENT, OR QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE) ARE HEREBY DISCLAIMED BY COMPANY AND ITS SUPPLIERS AND LICENSORS; AND
COMPANY DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION: (A) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, TIMELINESS, COMPLETENESS, OR QUALITY OF COMPANY MATERIALS; (B) THAT CUSTOMER’S USE OF COMPANY MATERIALS WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; (C) REGARDING THE OPERATION OF ANY CELLULAR NETWORKS, THE PASSING OR TRANSMISSION OF DATA VIA ANY NETWORKS OR THE CLOUD, OR ANY OTHER CELLULAR OR DATA CONNECTIVITY PROBLEMS; OR (D) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY LAWS, REGULATIONS, OR OTHER GOVERNMENT OR INDUSTRY RULES OR STANDARDS. COMPANY WILL NOT BE LIABLE OR OBLIGATED IN RESPECT OF DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO HOSTING PROVIDERS OR PUBLIC NETWORKS.
10. LIMITATION OF LIABILITY
10.1 EXCEPT FOR BREACHES OF CONFIDENTIALITY UNDER SECTION 6 (CONFIDENTIALITY) AND/OR A BREACH OF THE SUBSCRIPTION (SUCH AS A BREACH UNDER SECTION 2.4 (RESTRICTIONS), IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, SUPPLIERS, OR LICENSORS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR:
- ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE LOSSES OR DAMAGES;
- ANY LOSS OF PROFITS, BUSINESS, OPPORTUNITY, REVENUE, CONTRACTS, ANTICIPATED SAVINGS, OR WASTED EXPENDITURE;
- ANY LOSS OF, OR DAMAGE OR INTERRUPTION TO, DATA, NETWORKS, INFORMATION SYSTEMS, REPUTATION, OR GOODWILL; AND/OR
- THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
10.2 THE COMBINED AGGREGATE LIABILITY OF COMPANY AND ALL COMPANY AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.
10.3 THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), STRICT LIABILITY, MISREPRESENTATION, RESTITUTION, OR OTHERWISE.
11.1 Company Indemnity. In the event that, during the term of this Agreement or the six (6) month period thereafter, a third party makes or institutes any claim, action, or proceeding against Customer alleging that Customer’s authorized access and use of the Platform infringes such third party’s copyright or patent (an “Infringement Claim“), Company shall:
- at its own expense, defend Customer against the Infringement Claim; and
- indemnify and hold harmless Customer for any amount finally awarded against or imposed upon Customer by the court (or otherwise agreed in settlement) under the Infringement Claim (provided, however, that any insurance recoveries and/or indemnity or contribution amounts received by the Customer prior to receipt of indemnification by Company shall reduce the indemnifiable amount to be paid by Company by the amount of such recovery).
Company will have no obligation or liability under this Section (Indemnification) to the extent that the Infringement Claim is based on or results from: (i) a modification to the Platform not made by Company; (ii) the combination of the Platform with any third party product or service; and/or (iii) any Customer instructions or specifications.
Should the Platform (in whole or in part) become, or in Company’s opinion be likely to become, the subject of an Infringement Claim, then Customer permits Company, at Company’s option and expense, to either: (x) obtain for Customer the right to continue using the Platform (or part thereof); or (y) replace or modify the Platform (or part thereof) so that it’s use hereunder becomes non-infringing; provided, however, that if (x) and (y) are not, in Company’s opinion, commercially feasible, Company may terminate this Agreement upon written notice to Customer, following which Customer shall be entitled to receive a pro-rated refund of any prepaid Subscription Fees hereunder based remaining period of the Subscription Term.
11.2 Customer Indemnity. Customer shall: (a) at its own expense defend Company, its Affiliates and their respective directors, officers, employees and representatives (each, a “Company Indemnitee“) against any third party demand or claim made against a Company Indemnitee resulting from Customer’s misuse or unauthorized use of any Company Materials and/or for any breach of the Subscription or under Section 2 (Usage Restrictions) above (each, a “Misuse Claim“); and (b) indemnify and hold harmless the Company Indemnitee for any amounts finally awarded against or imposed upon the Company Indemnitee (or otherwise agreed in settlement) under the Misuse Claim, as well as for any out-of-pocket legal expenses (including reasonable attorney’s fees) reasonably incurred by Company under the Misuse Claim.
11.3 Indemnity Procedure. As a condition to the foregoing, the indemnified Party agrees: (A) to provide the indemnifying Party with prompt written notice of the Infringement Claim or Misuse Claim, as applicable (the “Claim“); (B) to cede to the indemnifying Party sole control of the defense and settlement of the Claim (except that any settlement shall require the indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned or delayed); (C) to provide the indemnifying Party with all information and assistance reasonably requested by it; and (D) not to admit any liability under (or otherwise compromise the defense of) the Claim. The indemnified Party may participate in the defense of the Claim at its own cost and expense.
11.4 Sole Remedy. This Section represents the indemnifying Party’s sole obligation and liability, and the indemnified Party’s sole remedy, for the Claim.
12. TERM AND TERMINATION
12.1 Term. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue for the duration of the Subscription Term (defined below). “Effective Date” means the date the Order is signed by both Parties, unless the Order itself specifies a different start or effective date.
12.2 Renewal. Unless specified otherwise in the Order, upon expiration of the initial Subscription term specified in the Order (the “Initial Subscription Term“), the Subscription shall automatically renew for successive renewal terms of twelve (12) months each (each a “Renewal Subscription Term“, and together with the Initial Subscription Term, the “Subscription Term“), unless either Party notifies the other Party in writing that it chooses not to renew (“Non-Renewal Notice“); provided, however, that the Non-Renewal Notice is given at least sixty (60) days prior to the end of the then-current Subscription Term. At the commencement of each Renewal Subscription Term, Company shall be entitled to invoice Customer for the applicable Fees therefor.
12.3 Termination for Cause. Either Party may terminate this Agreement upon written notice to the other Party:
- If the other Party commits a material breach under this Agreement, and fails to cure such breach within forty-five (45) days after receiving written notice from the other Party alleging the breach (except that for payment breaches, the cure period shall be fourteen (14) days); or
- Upon the occurrence of any of the following events in respect of such other Party: (i) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (ii) the other Party makes a general assignment for the benefit of its creditors; (iii) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within sixty (60) days; or (iv) the other Party is liquidating, dissolving or ceasing normal business operations.
12.4 Suspension. Company reserves the right to temporarily suspend provision of the Platform: (a) if Customer is seven (7) days or more overdue on a payment; (b) if Company deems such suspension necessary as a result of Customer’s breach of the Subscription (such as a breach under Section 4 (Usage Restrictions)); (c) if Company reasonably determines suspension is necessary to avoid material harm to Company, to its other customers, or to the Platform, including without limitation if the Platform’s cloud infrastructure is experiencing denial of service attacks or other attacks or disruptions outside of Company’s control, or (d) as required by law, regulation, or at the request of a governmental entity.
12.5 Effect of Termination; Survival. Upon termination of this Agreement for any reason: (a) the Subscription shall automatically terminate; (b) Customer shall cease all access and use of the Platform (and Company shall be entitled to verify same) and certify in a signed writing that it has done so; and (c) Customer shall pay any outstanding Fees and other charges that accrued as of termination, which shall become immediately due and payable, and, if necessary Company shall issue a final invoice therefor. Customer acknowledges that following termination it will have no further access to any Customer Content within the Platform, and that Company may (but shall not be obligated to) delete any Customer Content as may have been stored by Company at any time. Sections 7 (Ownership) through 13 (Miscellaneous) shall survive termination of this Agreement, as shall any provision that is expressly stated to so survive or that ought by its nature to survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.
13.1 Entire Agreement. This Agreement (together with its Schedule(s)) represents the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the Parties with respect to such subject matter. In entering into this Agreement, neither Party is relying on any representation or statement not expressly specified in this Agreement. Without limiting the generality of the foregoing, this Agreement supersedes the following, each of which shall be deemed rejected, void and of no effect: (i) any shrink-wrap, click-wrap, or similar terms and conditions that accompany, or are included within, the Platform, even if use of the Platform requires an affirmative “acceptance” thereof, and (ii) any terms or conditions (whether printed, hyperlinked, or otherwise) in any purchase order or other standardized business forms, which purport to supersede, modify or supplement this Agreement. The section headings used in this Agreement are for convenience of reading only. This Agreement may be executed in any number of counterparts (including digitally, electronically scanned and e-mailed PDF copies, and any similarly signed and electronically or digitally transmitted copies) each of which will be considered an original, but all of which together will constitute one and the same instrument. For the avoidance of doubt, any Order Form, Sales Order, Proposal, or Quote furnished by Company to Customer does not constitute an offer for the supply of good or services.
13.2 Amendment. This Agreement may only be modified or supplemented by a written instrument duly signed by each Party.
13.3 Assignment. This Agreement may not be assigned, in whole or in part, by either Party without the prior express written consent of the other Party; except, however, that either Party may, upon written notice, assign this Agreement in whole to: (A) an Affiliate; or (B) a successor in connection with a merger, consolidation, or acquisition of all or substantially all of the assigning Party’s assets or business relating to this Agreement. Any prohibited assignment will be null and void. Subject to the provisions of this Section (Assignment), this Agreement will bind and inure to the benefit of each Party and its respective successors and assigns. Furthermore, any Company obligation hereunder may be performed (in whole or in part), and any Company right (including invoice and payment rights) or remedy may be exercised (in whole or in part), by an Affiliate of Company.
13.4 Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Israel without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. If, however, Company is Approve.com, Inc., then the aforesaid governing law shall be substituted with the “State of New York, USA“, and the Uniform Computer Information Transactions Act (UCITA) (regardless of where or when adopted), shall also not apply to this Agreement and is hereby disclaimed.
Any claim, dispute or controversy between the Parties will be subject to the exclusive jurisdiction and venue of the courts located in Tel Aviv, Israel and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, each Party may seek equitable relief in any court of competent jurisdiction. If, however, Company is Approve.com, Inc., then the aforesaid courts shall be substituted with the “courts located in New York County, New York, USA“, AND EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO TRIAL OF ANY ISSUE BY JURY.
EXCEPT TO SEEK EQUITABLE RELIEF, PAYMENT OF FEES, OR TO OTHERWISE PROTECT OR ENFORCE A PARTY’S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, NO ACTION, REGARDLESS OF FORM, UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE DATE ON WHICH THE CORRESPONDING LIABILITY AROSE. Any claims or damages that Customer may have against Company shall only be enforceable against Company, and not any other entity or Company’s officers, directors, representatives, or agents.
13.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) the Parties agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction (and only to the extent of such illegality, invalidity or unenforceability), and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
13.6 Publicity. Company may, with Customer’s prior written consent, use Customer’s name and logo on Company’s website and in its promotional materials to state that Customer is a customer of Company.
13.7 Third Party Content. The Platform may present, or otherwise allow Customer to view, access, link to, and/or interact with, Content from third parties and other sources that are not owned or controlled by Company (such Content, “Third Party Content“). The Platform may also enable Customer to communicate with the related third parties. The display or communication to Customer of such Third Party Content does not (and shall not be construed to) in any way imply, suggest, or constitute any sponsorship, endorsement, or approval by Company of such Third Party Content or third party, nor any affiliation between Company and such third party. Company shall have no obligation or liability of any kind whatsoever for Third Party Content or for the third party’s policies, practices, actions, or omissions. Third Party Content is owned by the applicable third party (and/or its licensors, as applicable), and no right, title, or interest in or to Third Party Content is granted or conveyed to Customer.
13.8 Waiver and Remedies. No failure or delay on the part of either Party in exercising any right or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof, or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing, duly signed by the waiving Party, and will be valid only in the specific instance in which given. Except as may be expressly provided otherwise in this Agreement, no right or remedy conferred upon or reserved by either Party under this Agreement is intended to be, or will be deemed, exclusive of any other right or remedy under this Agreement, at law, or in equity, but will be cumulative of such other rights and remedies.
13.9 No Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement (such as Company’s Affiliates), there shall be no third-party beneficiaries of or under this Agreement.
13.10 Relationship. The relationship of the Parties is solely that of independent contractors, neither Party nor its employees are the servants, agents, or employees of the other, and no exclusivities arise out of this Agreement. Nothing in this Agreement shall be construed to create a relationship of employer and employee, principal and agent, joint venture, franchise, fiduciary, partnership, association, or otherwise between the Parties. Neither Party has any authority to enter into agreements of any kind on behalf of the other Party and neither Party will create or attempt to create any obligation, express or implied, on behalf of the other Party.
13.11 Force Majeure. Neither Party shall have any liability, or otherwise be deemed in breach, for any performance (excluding payment obligations) under this Agreement that is prevented, hindered, or delayed by reason of an event of Force Majeure (defined below). The Party so affected shall be excused from such performance to the extent that, and for so long as, performance is prevented, interrupted, or delayed by the Force Majeure. If and when performance is resumed, all dates specified under this Agreement shall be automatically adjusted to reflect the period of such prevention, interruption, or delay by reason of such Force Majeure. For purposes of this Agreement, an event of “Force Majeure” shall be defined as: (a) fire, flood, earthquake, explosion, pandemic or epidemic (or similar regional health crisis), or act of God; (b) strikes, lockouts, picketing, concerted labor action, work stoppages, other labor or industrial disturbances, or shortages of materials or equipment, or failure of (or delay in) delivery by Company’s suppliers or carriers; (c) invasion, war (declared or undeclared), terrorism, riot, insurrection, or civil commotion; (d) an act of governmental or quasi-governmental authorities; (e) failure of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, shortage of adequate power or transportation facilities; and/or (f) any matter beyond the reasonable control of the affected Party. Notwithstanding the foregoing, Customer shall not be entitled to use, or rely on, this Section (Force Majeure) in connection with any Customer breach of the Subscription and/or of Company’s Intellectual Property Rights. For the avoidance of doubt, any problems relating to hosting of the Platform by a third party is beyond the reasonable control of Company.
13.12 Notices. Except as may be specified otherwise in this Agreement, all notices, consents, or other communications provided for in connection with this Agreement shall be in writing, and shall be deemed given upon: (a) personal delivery; (b) the second business day after mailing via either U.S. mail or mailing via registered or certified mail with postage prepaid and return receipt requested; (c) upon delivery confirmation by nationally recognized overnight delivery service (“Courier“); (d) the second business day after sending confirmed by facsimile; (e) the first business day after sending by email.
13.13 Export Compliance. Customer shall not transfer, export, re-export, import, re-import or divert Company Materials in violation of any Export Control Laws (defined below), and shall not transfer, export, re-export, import, re-import or divert Company Materials to Lebanon, Syria, Iran, Iraq, Sudan, Yemen, Cuba, or North Korea (or other countries specifically designated in writing by Company from time to time). In the event of a breach under this Section (Export Compliance), Customer agrees to indemnify and hold harmless Company and all Company Affiliates (and their respective directors, officers, and employees) for any fines and/or penalties imposed upon Company or a Company Affiliate (or such persons) as a result of such breach. “Export Control Laws” means all applicable export and re-export control Laws applicable to Customer and/or Company or its Affiliates, as well as the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.
13.14 Expense. Except as expressly stated otherwise in this Agreement, each Party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of this Agreement (and any documents referred to in it).
13.15 Government Users. If Customer is a U.S. government entity, or this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that the Platform constitutes “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212, DFARS 252.227-7014 and DFARS 227.7202. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Platform shall be as provided in this Agreement. If a government agency needs additional rights, it must negotiate a mutually acceptable signed written addendum to this Agreement specifically granting those rights.
13.16 Anti-Corruption. Customer acknowledges and agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value from any of Company’s or its Affiliates’ employees, partners, representatives, or agents, in connection with this Agreement.
13.17 Customer Resources. Except for the Platform, Customer shall be solely responsible: (a) for providing all hardware, software, systems, assets, facilities, and ancillary goods and services needed for Customer to access and use the Platform; (b) for ensuring their compatibility with the Platform; and (c) for obtaining (and maintaining) all consents and licenses necessary to exercise Customer’s rights under the Subscription.
13.18 Technical Advice. Company shall have no obligation or liability for any technical advice furnished to Customer, including without limitation technical advice with respect to the use of the Platform, all such technical advice being given and accepted at Customer’s risk.
Company will use commercially reasonable efforts to make the Platform available to Customer at the Uptime Commitment.
“Uptime Commitment” means a Monthly Uptime Percentage of at least 99.9%.
“Monthly Uptime Percentage” means a percentage of the availability of the Platform during a Measured Period, calculated by dividing the number of minutes (at least 10 consecutive minutes each or longer) in which the Platform is Unavailable, by the total number of minutes in the Measured Period. Measurement of Monthly Uptime Percentage excludes Unavailability resulting directly or indirectly from any Unavailability Exclusions.
“Measured Period” means the total number of minutes in a calendar month.
“Unavailable/Unavailability“ refers to a period of time during which Customer’s Users cannot login or access the Platform, for a consecutive period of ten minutes or more.
“Unavailability Exclusions” means any cases of Unavailability resulting from any of the following: (a) Scheduled Unavailability; (b) factors outside of Company’s reasonable control, including without limitation any Event of Force Majeure or limitation or slowdown of Internet access; (c) Customer’s (or third party) equipment, software, or other technology; and/or (d) Company’s suspension or termination of Customer’s right to access the Platform.
“Scheduled Unavailability” means any Unavailability (a) of which Customer is notified at least forty-eight (48) hours in advance; and/or (b) during a standard maintenance window, as published by Company from time to time. In either of the foregoing two situations, Company will use commercially reasonable efforts to ensure that the Scheduled Unavailability falls between the hours of Friday 19:00 PM and Monday 07:00 AM US Eastern time.
2. Technical Support
During the Company’s working hours (“Business Hours“), Company’s helpdesk personnel shall receive Customer email and phone support requests in connection with Errors (each, a “Support Request“). “Error” means any verifiable and reproducible failure of the Platform to materially perform the functions described in the Platform’s documentation. Once Company has determined that the Support Request is covered by a valid support contract, Company will:
(A) respond to such Support Request based on the Severity Levels (as determined by Company) set out in the table below; and
(B) Company will use commercially reasonable efforts to get to Problem Resolution or to provide a workaround for the Error.
“Problem Resolution” means the use of commercially reasonable efforts to resolve the reported Error. These efforts may include (but are not limited to): configuration changes, patches that fix an issue, and redeploying the Platform.
In order to be addressed by Company, Errors must be verifiable and reproducible. Furthermore, in order for Company to address a Support Request, Customer must provide Company with all information, documentation, assistance and access as Company might reasonably require, including, without limitation:
- setup information,
- application knowledge,
- listing of any output,
- detailed steps required to enable Company to replicate the Error,
- exact wording of Error messages, and
- any other data that Company may reasonably request in order to reproduce operating conditions similar to those present when the Error occurred.
Each Error for which a Support Request is received by Company, shall be classified by Company and assigned a level of severity (“Severity Level”), in accordance with the following criteria:
|Severity Level||Criteria||Response Time (measured after Company receipt of Support Request)|
|Severity 1 Critical||A complete failure or inability to access the Platform for an extended period of time (more than 30 consecutive minutes) during Business Hours||4 hours|
|Severity 2 Major||A complete failure or inability to access or use the Platform for a brief period of time (fewer than 30 consecutive minutes) during Business Hours, or the failure of one or more key features of the Platform for an extended period of time (more than 30 consecutive minutes) during Business Hours||8 hours|
|Severity 3 Minor||A partial, temporary or intermittent failure of one or more features of the Platform lasting for fewer than 30 consecutive minutes during Business Hours||12 hours|
|Severity 4 Low||A Error that is cosmetic in nature (e.g., UI) or that can be readily circumvented through use of alternate functionality in the Platform.||48 hours|
The technical support described above shall exclude Errors resulting from:
- any modifications of the Platform that have not been approved by Company in advance and in writing;
- Customer’s failure to implement in a reasonably timely manner any update or upgrade made available by Company (or its representative);
- Customer’s written instructions to Company, or installation or set up adjustments made solely by Customer;
- Customer’s use of the Platform in violation of the Agreement or of any applicable Laws;
- any fault in any Customer (or third party) equipment, programs, or other goods or services used in conjunction with the Platform; and/or
- Customer’s negligence or willful misconduct.
4. Customer Responsibilities
- Customer agrees to receive from Company communications via e-mail, telephone, and other reasonable formats;
- Customer’s technical support contact shall cooperate with Company at all times during the provision of Support Services;
- Customer shall report to Company all material problems with the Platform and shall implement any reasonable corrective procedures provided by Company reasonably promptly after receipt; and
- Customer will make available to Company a remote access solution (“Remote Access“) allowing Company’s Customer Success (or similar) team to remotely connect to the Platform and Customer systems. Such Remote Access requires that, inter alia, Customer make available a Virtual Private Network (“VPN”) or Virtual Desktop Infrastructure (“VDI”) facilitating access from Company’s offices.