Software as a Service
Terms and Conditions
This Software as a Service Terms and Conditions (these “Terms and Conditions”) set forth the terms and conditions governing one or more Statements of Work (each, an “SOW”), between PILOT, Inc. (the “Company”) and the Customer specified in the applicable SOW (the “Customer”) (the SOW, any SOW Amendment, and these Terms and Conditions, collectively, the “Agreement”). Any capitalized terms in these Terms and Conditions that are not defined herein shall have the meaning ascribed to them in the SOW.
Customer hereby acknowledges and agrees that Customer’s use of the Services constitutes acceptance of these Terms and Conditions.
1. SUBSCRIPTION SERVICES
a. Overview. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to make the Services available to Customer (i.e., the Licensed End Users up to the Service Capacity) in accordance with the terms (and subject to the conditions) of this Agreement. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
b. License. Subject to Customer’s compliance with this Agreement, Company grants to Customer a non-exclusive, non-assignable (except as permitted in Section 11(b) below) license to use the Services, including any related services and deliverables, described in each SOW, in the form provided by Company, during the applicable Program Term specified in the SOW, and subject to any additional limitations specified in each SOW. The foregoing license includes the right for Customer to permit the Licensed End Users to access the Services within the scope of the foregoing license granted to Customer, and otherwise subject to this Agreement.
c. Updates and Changes to Services. Company reserves the right, in its sole discretion, to update the Services and the applicable details and specifications from time to time, including to change, modify, add, or remove portions of the Services, or to reflect changes in laws, regulations, rules, technology, industry practices, and availability of third-party services or content. Customer will reasonably cooperate with Company to help secure the delivery of Services as requested by Company from time to time.
d. Additional Services. From time to time, Customer may request Company to amend the Services, Term, or to perform certain nonrecurring services or deliver certain customized deliverables (“Additional Services”) that is not captured in the SOW. In such cases, Customer and Company will negotiate in good faith the scope of work and the pricing for such Additional Services, which may be captured in one more amendments to the SOW executed by Company and Customer (“SOW Amendments”). Upon Customer and Company entering into a specific SOW Amendment, the SOW Amendment will become a part of this Agreement and will be subject to the terms and conditions of this Agreement except to the extent expressly provided otherwise in such SOW Amendment. For any SOW Amendment executed by both Company and Customer, Company will perform the specified Additional Services and Customer will make the payments specified in such SOW Amendment.
2. RESTRICTIONS AND RESPONSIBILITIES
a. Prohibited Modification or Reverse Engineering. Customer, including without limitation, any and all Licensed End Users, will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or the Software (as defined below); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company pursuant to the terms of this Agreement, or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. As used herein, “Software” shall mean any software, documentation or data related to the Services or the PILOT Program (as defined in the SOW), including but not limited to any (i) computer software and code, in the form made available by Company (whether in source code or object code), including any and all software implementations of algorithms, models and methodologies, assemblers, scripts, macros, applets, compilers; development tools, design tools and user interfaces; (ii) databases and compilations, including any and all data (including technology, image and sound data), whether machine readable or otherwise; (iii) descriptions, flow-charts and other work product used to design, plan, organize and develop any of the foregoing; and (iv) all documentation, including user manuals and training materials, relating to any of the foregoing. Examples of Software include cloud-based Software providing SAAS functionality, mobile apps, client device software, edge computing software modules, and applicable programming interfaces (APIs).
b. Export Restrictions. Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority and/or other applicable laws and regulations.
c. Compliance with Company Policies. Customer represents, covenants, and warrants that Customer (on behalf of itself and its Licensed End Users) will use the Services only in compliance with Company’s standard published policies-as the same may be amended from time-to-time, including without limitation Company’s Terms of Use, then in effect located on Company’s website, which terms are incorporated herein (the “Policies”) and all applicable laws, rules and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s (or Licensed End Users) use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
d. Indemnification for Compliance. Customer hereby agrees to indemnify and fully and completely hold harmless Company against any and all damages, losses, liabilities, settlement, and expenses (including, without limitation, all related costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of the Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
e. Equipment and Ancillary Services. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent. Customer is solely responsible for obtaining all consents necessary for its Licensed End Users to utilize the Services and Software in the manner contemplated by this Agreement.
3. CONFIDENTIALITY
a. Confidential Information. As used herein, “Confidential Information” means any information disclosed by either Party to the other Party in connection with this Agreement (each a “Discloser” or “Recipient” of Confidential Information, as applicable). Confidential Information includes all information that is communicated orally, or that is in written, electronic, graphic, machine readable or in other tangible form, provided that such information is identified as “Confidential”, “Proprietary” or in some other manner to indicate its confidential nature, or that it should be reasonably known under the circumstances as being confidential. Confidential Information will include all technology, technical and business information, and all other tangible items and electronically stored data, including materials, formulations, compositions, prototypes, structures, designs, software, documentation, systems, files, records, databases, drawings, artwork, designs, displays, audio-visual works, manuals, specifications, flow charts, web pages, customer lists, test cases, customer support information, electronic and other data, tangible embodiments of technical or business data, marketing collateral, market requirement documentation, R&D development specifications, protocol specifications, and any other similar technology, information, data, materials and tangible or intangible items. The Services and any modifications or extensions made in connection with this Agreement will be the Confidential Information of Company. The Customer’s technology, and any modifications or extensions made in connection with this Agreement to Customer’s technology, will be the Confidential Information of the respective Customer. Notwithstanding the foregoing, Confidential Information will exclude any information that (i) was at the time of disclosure, or later becomes generally known and available in the public domain, through no fault of the Recipient; (ii) was known to the Recipient at the time of disclosure; (iii) is publicly disclosed with the prior written approval of the Recipient; (iv) was, or is later independently developed by the Recipient without any use of the Discloser’s Confidential Information; or (v) becomes known to the Recipient from a source other than the Discloser and not in violation of the Discloser’s rights.
b. Confidentiality Obligations. With respect to any Confidential Information disclosed under this Agreement by Discloser:
i. Recipient will treat such Confidential Information as confidential and will handle it using at least the same procedures and degree of care which it uses to prevent the misuse and disclosure of its own confidential information of like importance, but in no event less than reasonable care;
ii. Recipient will only use such Confidential Information as expressly permitted under this Agreement and only to the extent necessary;
iii. Recipient will not disclose any such Confidential Information to any of its employees, consultants or other individuals or entities except to the extent necessary for the purposes of this Agreement and subject to confidentiality and nonuse obligations at least as protective of the Discloser as those set forth in this Agreement (in which case Discloser will remain responsible for any noncompliance by such employees, consultants or other individuals or entities); and
iv. Recipient will keep confidential the terms of this Agreement. Recipient will not reverse engineer, disassemble or decompile any Services or other technology made available by the Discloser under this Agreement, except to the extent that this clause is not enforceable under applicable laws.
v. Recipient hereby agrees that the confidentiality obligations set forth in this Section 3(b) shall be effective for five (5) years following the disclosure thereof or any information that the Receiving Party can document.
4. CUSTOMER DATA
c. Customer Data.
i. Customer will own and retain all right, title, and interest relating to non-public data provided by Customer and Licensed End Users to Company to enable the provision of the Services under the Agreement, including, without limitation, Individual User Data (as defined below) (such data, collectively, the “Customer Data”). As used herein, “Individual User Data” shall mean User Feedback (as defined below), and any other individual feedback, responses, or data collected from Licensed End Users based on their interactions with the Software.
ii. Company shall own and retain all right, title and interest in and to (1) the Services and Software, all improvements, enhancements or modifications thereto, (b) any suggestions, ideas, enhancement requests, feedback, testimonials, recommendations or other information provided by Customer or any other party (including, without limitation, Licensed End Users) relating to the Services, and (c) all intellectual property rights related to any of the foregoing.
iii. Customer hereby acknowledges and agrees that (1) Customer Data shall not be exported by Customer once submitted to Company, (2) Customer will only receive access to the aggregated Customer Data specified in the SOW, during the applicable Program Term, and in accordance with the terms, of this Agreement, and (3) Company shall not share de-anonymized Individual User Data with Customer.
iv. Customer will comply with all applicable privacy laws in the course of collecting, storing and using the Consumer Data. Customer grants to Company a perpetual and irrevocable license, with the right to sublicense to Company’s affiliates, to use the Consumer Data in connection with Company’s business, including to assist Customer to configure and use the Services, to operate Customer’s business and to provide to Customer the analytics, sales reporting, and other services as specified in the SOW and any SOW Amendments.
v. Company will comply with all privacy laws applicable to Company in connection with the Customer Data to the extent that Company maintains access to or retains such Customer Data.
d. Company use of Customer Data. Notwithstanding anything to the contrary contained in this Agreement, Company shall have the right to use Customer Data as set forth below. No other rights or licenses are granted except as expressly set forth herein.
i. Company may collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom)
ii. Company shall have the right to use Customer Data for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings.
iii. Company may use and disclose Customer Data in an aggregate and anonymized format (without uniquely identifying individuals or entities) in the course of its business and to improve the Services; provided that, Company shall make available to Customer the services and deliverables using such aggregated metrics and data as set forth in the SOW; provided further that, the aggregated and anonymized Customer Data specified in the foregoing shall be made available by the Company to the Customer only during the Program Term applicable to such Customer Data.
e. Deletion of Data. Upon any termination or termination of this Agreement or upon request from the Discloser, Recipient will delete all of the Confidential Information received from the Discloser under this Agreement (together with all copies and derivatives of such Confidential Information), except that (a) Recipient may continue to temporarily hold a copy of such information for data retention purposes in accordance with its data retention policy or as required by applicable laws (e.g., as required by PCI DSS data retention requirements), and (b) Recipient may continue to hold and use any Confidential Information received from the Discloser to the extent that such Confidential Information is anonymized and used in accordance with all applicable laws and regulations.
f. Company Marketing. Customer hereby agrees that during the Term and any subsequent Renewal Term, and following the expiration or termination thereof, Company shall have the right to use: (a) Customer’s name and logo in connection with a listing of its customers on Company’s website for marketing and promotional purposes; and (b) testimonials from Customer or any of its officers, employees, agents (including, without limitation, Licensed End Users), generally in connection with its marketing and promotional purposes (including reference to Customer’s name), and the same shall be at no additional cost to Company.
g. Insights & Feedback. In order to provide an understanding of how Users are realizing and taking action during their Program Term, Company will share an aggregated view of User response and participation data with Customer at various points throughout the Program Term[1] (“User Feedback”). In order to maximize the efficacy of the Company’s products and protect the confidentiality of individual Users, all User Feedback delivered by the Company to the Customer shall be in an aggregate and anonymous form. Such User Feedback may include the following:
i. Coaching Insights: At various points during each User’s Program Term, the Company will provide aggregated analytics to Customer in the form of reports, along with Company’s customized insights and suggestions.
ii. Feedback From Users: Also, at various points during each User’s Program Term, Company will solicit User feedback regarding their coaching experience and will gather User insights and actions being taken as a result of the coaching activities. The Company will then aggregate the response data received from the foregoing, and provide the Customer with the Company’s feedback and insights
5. INTELLECTUAL PROPERTY
a. Company IP Rights. Except for the right to use the Services as set forth in this Agreement, Company owns and will retain all right, title and interest in and to the Services and all related Software and other technology used to deliver the Services, and to all IP Rights (as defined below) in and to all such Services, Software and other technology. Company will retain ownership of its own respective technology (including software and hardware), services and IP Rights.
i. As used herein, “IP Rights” shall mean any and all intellectual property rights anywhere in the world, including all (a) patents, including utility patents, design patents, utility models, industrial designs, statutory registrations and all other equivalent or similar rights anywhere in the world in inventions and discoveries, together with any applications thereof, (b) copyrights and all other similar rights in Software, documentation, and other works of authorship, (c) mask work rights, (d) trade secrets rights and other similar rights in oral and written confidential information, know-how, documentation, technology and Software, (e) rights in all trade names, logos, common law trademarks and service marks, trademark and service mark registrations, and applications therefore, (f) rights in mask works, chip topographies, and chip or product layouts and designs; (g) rights in all moral and economic rights of authors and inventors, however denominated; and (h) any other similar, corresponding or equivalent rights to any of the foregoing related to any technology, hardware, software or services.
b. Individual IP Rights. To the extent that Customer or Company develops any new IP Rights and/or any new work product in connection with this Agreement, solely or jointly with the other Party, then the following will apply:
i. Customer will be the sole owner of any IP Rights and new work product that relate to the Customer’s technology and services, including any improvements, modifications or extensions of such technology and services;
ii. Company will be the sole owner of any IP Rights and new work product that relate to Company’s technology and services (including the Services and Software), including any improvements, modifications or extensions of such technology and services.
c. No Other IP Rights. Neither Party intends to grant, and neither Party does actually grant in connection with this Agreement any license or other right that is not expressly stated in this Agreement with respect to any IP Rights, Service, or Software, whether by implication, statute, inducement, estoppel or otherwise, and Company and Customer each hereby reserves all of its rights other than the rights expressly granted in this Agreement.
d. IP Rights Assignment. Each Party agrees to assign to the other Party the IP Rights developed by that Party, and does assign such IP Rights upon their creation, to the extent required under the foregoing clauses of this Section 5. Each Party will reasonably collaborate with the other Party to assist the other Party to perfect its ownership and rights to any IP Rights assigned to the other Party under this Agreement.
6. PAYMENT OF FEES
a. Fees.
i. In exchange for the Services, the Customer will pay to Company the applicable Fees as set forth in the SOW and any SOW Amendment, and any applicable ancillary charges and fees related thereto (the “Fees”).
ii. Company reserves the right to change the Fees or and to institute new Fees during the Term or any subsequent Renewal Term upon thirty (30) days prior notice to Customer.
b. Payment of Fees.
i. The Company shall issue to Customer an invoice for Fees as set forth in the SOW (the “Fee Invoice”).
ii. Except as set forth in the SOW or any SOW Amendment, Customer hereby acknowledges and agrees that full payment for any Fee Invoice for the Implementation Fee and Service Fee must be received by Company no later than thirty (30) days of the mailing date of the Fee Invoice for such Fees.
iii. Except as set forth in the SOW or any SOW Amendment, Customer hereby acknowledges and agrees that full payment for any Fee Invoice for any Additional Service Fee, if any, must be received by the Company no later than five (5) business days after the Customer’s receipt of the Fee Invoice for any such Fees.
iv. Payments for Fee Invoices will be set up by via check, ACH/bank wire (Company bank wire instructions are available upon request).
v. If any part of the Fees charged to Customer’s credit card or paid via ACH or similar electronic payment method are declined, reversed, charged back or for any other reason is not paid in full via such electronic payment method, Company shall have the right, exercisable in its sole discretion and without prejudice to any of its other rights or remedies under this Agreement, to either resubmit such charges to Customer’s form of payment or invoice Customer for the amount of such charges (with payment due within five (5) days after receipt of such invoice), in each case, plus a returned payment charge of $35.00 or the maximum permitted by applicable law, if less. All unpaid amounts 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 (including, without limitation, reasonable attorneys fees) and may result in immediate termination of Service.
vi. Any applicable sales tax will be added to Fee Invoices. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company's net income.
vii. In the event any amounts owed by Customer pursuant to the terms of this Agreement are not received by Company when due, Company shall have the right to suspend any and all Services upon written notice to Customer until any and all such past-due amounts are paid in full. All remedies contained herein shall be in addition to (and not in lieu of) any and all remedies available to Company pursuant to this Agreement and/or applicable law.
c. Fee Disputes. If Customer would like to dispute any Fees or amounts set forth in the Fee Invoice(s), then Customer must send to Company a written notice of such dispute (the “Fee Dispute”) no later than thirty (30) days after the mailing date of the Fee Invoice containing any alleged errors. All Fee Disputes should be directed to Company’s customer support department.
7. TERM; TERMINATION; AND SURVIVAL
a. Term. This Agreement shall begin as of the Effective Date and shall continue to be effective until it is expired or terminated in accordance with the terms of the SOW, an SOW Amendment, or this Section 7 (collectively, the “Term”).
b. Renewal. At the expiration of the Initial Service Term or any then-current Term, this Agreement shall automatically renew for additional one (1) year terms (collectively, a “Renewal Term”).
c. Termination for Convenience. Company may terminate this Agreement, in whole or in part, at any time, by giving prior written notice of termination to the Customer, and Customer may terminate this Agreement, in whole or in part, at any time, by giving thirty (30) days’ prior written notice of termination to the Company.
d. Termination for Cause. Customer may terminate this Agreement upon thirty (30) days’ written notice reasonably specifying the alleged breach (or without written notice in the case of nonpayment), if the Company materially breaches any of the terms or conditions of this Agreement and such breach remains uncured during the thirty (30) day period following the Company’s receipt of the notice.
e. Effect of Termination.
i. In the event of a termination by Company or Customer pursuant to this Section 7, in addition to (and not in lieu of) any other remedies available to Company in accordance with this Agreement and/or applicable law, Company shall be entitled to receive (or retain) all Fees specified in any SOW (or SOW Amendment) in-full.
ii. Upon the termination or expiration of this Agreement, the following terms will survive: Section 2 (Restrictions and Responsibilities), Section 3 (Confidentiality), Section 4 (Customer Data), Section 5 (Intellectual Property), Section 6 (Payment of Fees), Section 7 (Term and Termination), Section 8 (Warranty and Disclaimer), Section 9 (Indemnity), Section 10 (Limitation of Liability), and Section 11 (Miscellaneous).
8. WARRANTY AND DISCLAIMER
a. Company shall use its commercially reasonable efforts to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third- party providers, or because of other causes beyond Company’s reasonable control, but Company shall use commercially reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
b. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANT AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
9. INDEMNITY
Company shall hold Customer harmless from liability to third parties resulting directly and exclusively from Company’s knowing infringement of any United States patent or any copyright or knowing misappropriation of any trade secret with respect to the Services provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Company will not be responsible for any settlement it does not approve in writing.
10. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. (I) IN NO CASE SHALL COMPANY (OR ANY OF ITS SUPPLIERS AFFILIATES, PARTNERS OR ANY OF THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, SUCCESSORS AND ASSIGNS) BE LIABLE TO ANY CUSTOMER OR ANY THIRD PARTIES FOR ANY CONSEQUENTIAL, INDIRECT PUNITIVE, EXEMPLARY, INCIDENTAL, OR SPECIAL DAMAGES PURSUANT TO THIS AGREEMENT OR THE SERVICES TO BE RENDERED BY COMPANY HEREUNDER; AND (II) IN NO EVENT WILL THE TOTAL AGGREGATE MAXIMUM LIABILITY INCURRED BY COMPANY (AND COMPANY'S SUPPLIERS, AFFILIATES, PARTNERS OR ANY OF THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, SUCCESSORS AND ASSIGNS) PURSUANT TO THE TERMS OF THIS AGREEMENT ACTUALLY EXCEED THE AMOUNT ACTUALLY PAID TO COMPANY BY CUSTOMER AS A FEE IN CONNECTION WITH THE SERVICES PURSUANT TO ANY SOW OR SOW AMENDMENT UNDER WHICH THE CLAIM ACTUALLY AROSE.
11. MISCELLANEOUS
a. Severance. If any provision in this Agreement is held to be invalid or unenforceable for any reason, such provision will, to the extent of such invalidity or unenforceability, be severed, but without in any way affecting the remainder of such provision or any other clause in this Agreement, and the provision will be replaced with a provision which, to the extent permitted by applicable law, achieves the purposes intended by the invalid or unenforceable provision.
b. Assignment. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may assign this Agreement (together with all SOWs) without consent in connection with a corporate reorganization or a sale or transfer of all or substantially all of its stock, assets or business relating to this Agreement.
c. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
d. Relationship between Parties. It is expressly acknowledged and agreed to by the parties hereto that Company is an independent contractor and nothing in this Agreement is intended or shall be construed to create an employer/employee relationship, or to allow Customer to exercise control or direction over the manner or method by which Company performs the services which are the subject matter of this Agreement. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.
e. Authority. Each Party represents to the other Party that it has the power to enter into this Agreement and that the same shall not conflict with any other written obligation entered into by such Party and that each Party’s signatory has the proper authority to enter into this Agreement on behalf of such Party.
f. Notices. All notices or other communications relating to the performance, enforcement, or other legal aspects of this Agreement will be in writing and will be considered received by each Party upon the following: (i) upon personal delivery, or (ii) (A) if sent by overnight courier, upon electronic confirmation of delivery, or (B) if sent by certified or registered mail, return receipt requested, upon receipt of the return receipt, at the address for each Party set forth in the SOW. Any other communications between Customer and Company, including relating to the technical and business collaboration under specific Orders or SOWs, may be conducted over telephone, email, or by other means reasonable under the circumstances and mutually acceptable to Customer and Company.
g. Injunctive Relief. The parties recognize that Section 2 and Section 3 are necessary for the protection of the business and goodwill of the parties and are considered by the parties to be reasonable for such purpose. The parties agree that any breach of such Sections would cause the other party substantial and irreparable damage and therefore, in the event of any such breach, in addition to other remedies which may be available, the non-breaching party shall have the right to seek specific performance and other injunctive and equitable relief in a court of law.
h. Interpretation. The parties acknowledge that each party has reviewed this Agreement and that normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.
i. Construction. For purposes of this Agreement, unless otherwise required by the context: the singular number will include the plural, and vice versa; the verb “may” indicates a legal right to perform the respective activity but does not establish a legal obligation to perform that activity; and the words “include,” “including” and “for example,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” The headings in this Agreement are for convenience of reference only and will not be referred to in connection with the construction or interpretation of this Agreement. English is the official language of this Agreement. This Agreement may be translated and/or executed in languages other than English, but the Parties agree that the English version will control. Each Party waives any rights that it may have under the laws of any country or jurisdiction to have this Agreement written in any local language, or interpreted or superseded by local law in those countries.
j. Amendments. These Terms and Conditions may be amended from time to time upon the Company’s sole discretion. Company will notify the Customer of any material changes to these Terms and Conditions as required by applicable law. Customer’s hereby knowledges and agrees that its continued use of the Services will constitute acceptance of the revised Terms and Conditions. No amendment or modification of the SOW will be valid or binding upon the Parties unless made in writing and executed by authorized representatives of each Party, except as otherwise expressly provided in this Agreement.
k. Entire Agreement. This Agreement includes all SOWs and SOW Amendments (if any), and any schedules, attachments, and amendments thereto, each of which are expressly incorporated and made a part of this Agreement. This Agreement supersedes all prior agreements and understandings, including oral representations, between the Parties relating to its subject matter.
l. Order of Precedence. In case of any conflict between these Terms and Conditions and any SOW, SOW Amendment (if any), or other document, the terms of the SOW or SOW Amendment (as applicable) will prevail unless otherwise expressly stated in such SOW, SOW Amendment, or other document.
m. Waivers. Waiver of breach of any provision of this Agreement on any occasion will not be deemed a waiver of that provision or of any other provision on any other occasion, nor will such waiver affect the right of either party to terminate this Agreement.
n. Force Majeure. Each Party will be excused from performance and will not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond the reasonable control of that Party, including but not limited to, war (whether an actual declaration thereof is made), sabotage, insurrection, riot or other act of civil disobedience, actual or threatened act of terrorism or of any other public enemy, pandemic or other large-scale health-related events, hacking or other cyber-attacks, failure or delay in transportation, act of any government or any agency or subdivision thereof affecting the terms of this contract or otherwise, judicial action, labor dispute, accident, defaults or suppliers, fires, explosion, flood, storm or other act of nature, shortage of labor, fuel, raw material or machinery or technical or yield failures.
o. Governing Law. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in New York County, New York and each party consents to the jurisdiction thereof.
p. Counterparts. This Agreement may be executed in counterparts, all of which shall constitute one single agreement between the parties hereto. This Agreement may be executed and delivered by facsimile or by email in portable document format (.pdf), and delivery of the signature page by either such method will be deemed to have the same effect as if the original signature had been delivered to the other party.
[5] Note: all User data is kept confidential and is shared in aggregate form with the Customer.