This page includes the Terms of Service for the Greenwich.HR website, and the Service Subscription Agreement for users of Greenwich.HR subscription services.  

 

 

Terms of Service - Website

TERMS AND CONDITIONS OF USE

 

These terms and conditions govern your use of this website and our services; by using this website or our services, you accept these terms and conditions in full.   If you disagree with these terms and conditions or any part of these terms and conditions, you must not use this website or our services. You must be at least 18 years of age to use this website or our services.  By using this website or our services, you warrant and represent that you are at least 18 years of age.

 

License to Use Website and Our Services

Unless otherwise stated, Greenwich.HR and/or its licensors own the intellectual property rights in the website and material on the website.  Subject to the license below, all these intellectual property rights are reserved.

You may view, download for caching purposes only, and print pages or other data presented on the website from the website for your own personal use, subject to the restrictions set out below and elsewhere in these terms and conditions.

You must not:

  • republish material from this website (including republication on another website) without Greenwich.HR's written permission;
  • sell, rent or sub-license material from the website;
  • reproduce, duplicate, copy or otherwise exploit material on this website for a commercial purpose without Greenwich.HR's written permission;
  • edit or otherwise modify any material on the website; or
  • redistribute material from this website outside of your organization.

 

Acceptable Use

You must not use this website or our services in any way that causes, or may cause, damage to the website or impairment of the availability or accessibility of the website; or in any way which is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

You must not use this website to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software.

You must not conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting beyond the built-in functionality of the website) on or in relation to this website without Greenwich.HR's express written consent.

You must not use this website to transmit or send unsolicited commercial communications.

You must not use this website for any purposes related to marketing without Greenwich.HR's express written consent.

 

Restricted Access

Access to certain areas of this website is restricted.  Greenwich.HR reserves the right to restrict access to any areas of this website, or indeed this entire website, at Greenwich.HR's discretion.

If Greenwich.HR provides you with a user ID and password to enable you to access restricted areas of this website or other content or services, you must ensure that the user ID and password are kept confidential.

Greenwich.HR may disable your user ID and password in Greenwich.HR without notice or explanation.

 

User Content

In these terms and conditions, "your user content" means material (including without limitation text, images, audio material, video material and audio-visual material) that you submit to this website, for whatever purpose.

You grant to Greenwich.HR a worldwide, irrevocable, non-exclusive, royalty-free license to use, reproduce, adapt, publish, translate and distribute your user content in any existing or future media.  You also grant to Greenwich.HR the right to sub-license these rights, and the right to bring an action for infringement of these rights.

Your user content must not be illegal or unlawful, must not infringe any third party's legal rights, and must not be capable of giving rise to legal action whether against you or Greenwich.HR or a third party (in each case under any applicable law).

You must not submit any user content to the website that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaint.

Greenwich.HR reserves the right to edit or remove any material submitted to this website, or stored on Greenwich.HR's servers, or hosted or published upon this website.

Notwithstanding Greenwich.HR's rights under these terms and conditions in relation to user content, Greenwich.HR does not undertake to monitor the submission of such content to, or the publication of such content on, this website.

 

No Warranties

This website is provided "as is" without any representations or warranties, express or implied.  Greenwich.HR makes no representations or warranties in relation to this website or the information and materials provided on this website.

Without prejudice to the generality of the foregoing paragraph, Greenwich.HR does not warrant that:

  • this website will be constantly available, or available at all; or
  • the information on this website is complete, true, accurate or non-misleading.

Nothing on this website constitutes, or is meant to constitute, advice of any kind.  If you require advice in relation to any matter you should consult an appropriate professional.

 

Limitations of Liability

Greenwich.HR will not be liable to you (whether under the law of contact, the law of torts or otherwise) in relation to the contents of, or use of, or otherwise in connection with, this website or services:

  • to the extent that the website is provided free-of-charge, for any direct loss;
  • for any indirect, special or consequential loss; or
  • for any business losses, loss of revenue, income, profits or anticipated savings, loss of contracts or business relationships, loss of reputation or goodwill, or loss or corruption of information or data.

These limitations of liability apply even if Greenwich.HR has been expressly advised of the potential loss.

 

Exceptions

Nothing in this website and services disclaimer will exclude or limit any warranty implied by law that it would be unlawful to exclude or limit; and nothing in this website and services disclaimer will exclude or limit Greenwich.HR liability in respect of any:

  • death or personal injury caused by Greenwich.HR'S negligence; or
  • matter which it would be illegal or unlawful for Greenwich.HR to exclude or limit, or to attempt or purport to exclude or limit, its liability.

 

Reasonableness

By using this website and our services, you agree that the exclusions and limitations of liability set out in this website and services disclaimer are reasonable.

If you do not think they are reasonable, you must not use this website or our services.

 

Unenforceable Provisions

If any provision of this website and services disclaimer is, or is found to be, unenforceable under applicable law, that will not affect the enforceability of the other provisions of this website disclaimer.

 

Indemnity

You hereby indemnify Greenwich.HR and undertake to keep Greenwich.HR indemnified against any losses, damages, costs, liabilities and expenses (including without limitation legal expenses and any amounts paid by Greenwich.HR to a third party in settlement of a claim or dispute on the advice of Greenwich.HR's legal advisers) incurred or suffered by Greenwich.HR arising out of any breach by you of any provision of these terms and conditions, or arising out of any claim that you have breached any provision of these terms and conditions.

 

Breaches of these Terms and Conditions

Without prejudice to Greenwich.HR's other rights under these terms and conditions, if you breach these terms and conditions in any way, Greenwich.HR may take such action as Greenwich.HR deems appropriate to deal with the breach, including suspending your access to the website, prohibiting you from accessing the website, blocking computers using your IP address from accessing the website, contacting your internet service provider to request that they block your access to the website and/or bringing court proceedings against you.

 

Variation

Greenwich.HR may revise these terms and conditions from time-to-time.  Revised terms and conditions will apply to the use of this website from the date of the publication of the revised terms and conditions on this website.  Please check this page regularly to ensure you are familiar with the current version.

 

Credit

This document was created using a Contractology template available at http://www.freenetlaw.com.

 

Assignment

Greenwich.HR may transfer, sub-contract or otherwise deal with Greenwich.HR's rights and/or obligations under these terms and conditions without notifying you or obtaining your consent.

You may not transfer, sub-contract or otherwise deal with your rights and/or obligations under these terms and conditions.

 

Severability

If a provision of these terms and conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.  If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

 

Entire Agreement

These terms and conditions  constitute the entire agreement between you and Greenwich.HR in relation to your use of this website, and supersede all previous agreements in respect of your use of this website.

 

Law and Jurisdiction

These terms and conditions will be governed by and construed in accordance with the laws of the State of Delaware, and any disputes relating to these terms and conditions will be subject to the exclusive jurisdiction of the courts of the State of Delaware.

 

 

 

Terms of Service - Service Subscription Agreement

 

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

This Service Subscription Agreement is made and entered into as of the signature or acceptance date on the Service Subscription Order (“Effective Date”), between Market Advantage, Inc. doing business as Greenwich.HR (“Provider”) and the undersigned subscriber (“Subscriber”). This Agreement sets forth the terms pursuant to which Subscriber will be permitted to use certain of Provider’s data services.

The parties agree as follows:

DEFINITIONS

  1. Account” means a unique account created for Subscriber to access the Subscription Services.
  2. Add-On Services” means additional services that may be added to a base subscription to the Subscription Services.
  3. Client” means a customer of Subscriber for whom Subscriber is purchasing and/or using the Provider Services (if applicable).
  4. Group” means a unit of usage rights for the Subscription Services. Groups may be set for individual Clients, specific campaigns, etc.
  5. Professional Services” means time-and-materials services provided to Subscriber, such as consulting services, onboarding support, etc.
  6. Scope Limitations” means the limitations on Subscriber’s use of the Subscription Services specified in one or more applicable Service Orders. Scope Limitations may include limits on the volume of data processed by the Subscription Services, and/or a maximum number of user profiles, or such other limits as are set forth in the Service Order.
  7. Service Order” means a document setting out the specific details of one or more specific Provider Services to be provided to Subscriber, which is agreed upon and signed by both parties. A service order may include an online form.
  8. “Provider Services” means, collectively, Data Services, Data, Add-On Services, and Professional Services.
  9. Subscription Services” means the base subscription services provided by Provider to Subscriber, as identified in one or more Service Orders.

SERVICE ORDERS

  1. Service Orders. Subscriber must enter into a separate Service Order for each Group. Once executed by both parties, each Service Order will be a unique agreement that incorporates the terms of this Agreement and stands alone with respect to all other Service Orders. If there is a conflict between the terms of this Agreement and the terms of a Service Order, the terms of this Agreement will control unless the Service Order states that a specific provision of this Agreement will be superseded by a specific provision of the Service Order. Provider will provide, and Subscriber will pay for, all Provider Services set out in each Service Order, subject to the terms of the Service Order and this Agreement.
  2. Service Orders must be executed by both parties to be valid.

USE OF THE PROVIDER’S SERVICES

  1. Use of the Provider Services. Subject to the terms and conditions of this Agreement, Provider grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 11.3) right during the term of each Service Order to use the Provider Services set out therein. Subscriber’s right to use the Provider Services is subject to the Scope Limitations and contingent upon Subscriber’s compliance with the Scope Limitations, the terms of the Service Order and this Agreement. If the Service Order permits usage by Clients, such Clients may use the Provider Services in accordance with the terms of this Agreement. Subscriber will be liable for all use of the Provider Services by its Clients.
  2. Access and Users; Groups. Subscriber is responsible for managing access to its Account. Subscriber may permit its agents or service providers to access the Provider Services through its Account, provided that Subscriber ensures that any person or entity using its Account comply with the terms of this Agreement, and that Subscriber remains responsible for any action taken using its Account. If the Scope Limitations include limits on the number of users, Subscriber will ensure that each user is issued its own credentials and that credentials are not shared by more than one user. If Subscriber uses the Provider Services on behalf of its Clients or if it grants access to the Provider Services to its Clients, Subscriber will be responsible for ensuring that such Clients are not able to access confidential or proprietary information of another Client. Subscriber may only assign one Client to a Group and may not grant access to one Client’s Group to another Client or third party without the assigned Client’s consent.
  3. Technical Support Services. For so long as Subscriber is current with its payment of the fees specified in the applicable Service Order, Provider will provide Subscriber with technical support services relating to the Provider Services by email from 9am-5pm Central Time, Monday through Friday, excluding U.S. holidays.
  4. Use Restrictions. Subscriber may use the Provider Services solely for its own internal business operations or on behalf of Subscriber’s Clients. Subscriber may not resell Provider Services to third parties. Except as otherwise explicitly provided in this Agreement and/or applicable Service Order, or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties to use the Provider Services; (b) use the Provider Services to provide services to third parties (e.g., as a service bureau); (c) circumvent or disable any security or other technological features or measures of the Provider Services, or (d) reverse engineer any element of the Provider Service, or use the Provider Services or any of Provider’s Confidential Information (as defined below) to create a product that competes with the Provider Services.
  5. Compliance with Laws. Subscriber will use the Provider Services in compliance with all applicable laws and regulations and in a manner that does not infringe on the rights of any third party.
  6. Protection Against Unauthorized Use. Subscriber will use reasonable efforts to prevent any unauthorized use of the Provider Services and immediately notify Provider in writing of any unauthorized use that comes to Subscriber’s attention. If there is unauthorized use by anyone who obtained access to the Provider Services directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by Provider to prevent or terminate unauthorized use of the Provider Services.
  7. Right to Suspend Services. Provider may suspend Subscriber’s or any Client’s use of the Provider Services if Provider reasonably and in good faith believes such suspension is necessary to prevent unauthorized use of the Provider Services or to prevent an ongoing violation of any applicable laws or regulations.  Provider will use commercially reasonable efforts to notify Subscriber prior to any such suspension and will only suspend the Provider Services to the extent necessary to prevent such unauthorized use or violation. In addition, if Subscriber fails to timely pay any fees in accordance with the terms of this Agreement and/or any Service Order, Provider may, without limitation to any of its other rights or remedies, suspend performance of the Provider Services until it receives all amounts due.
  8. Reservation of Rights. Provider grants to Subscriber a limited right to use the Provider Services under this Agreement. Subscriber will not have any rights to the Provider Services except as expressly granted in this Agreement. Provider reserves to itself and its licensors all rights to the Provider Services not expressly granted to Subscriber in accordance with this Agreement. Provider and its licensors retain all copyright, patent, and other intellectual property rights in and to the Provider Services.

FEES AND PAYMENT

  1. Subscriber will pay Provider the fees specified in each applicable Service Order. If Subscriber orders additional Provider Services or changes the Provider Services it is receiving, the fees for such additional or changed services will commence on the activation date listed in the Service Order and will be reflected on Subscriber’s monthly invoice. Partial months will not be prorated. All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars.
  2. Payment Terms. Unless otherwise specified in the applicable Service Order, Subscriber will pay all amounts due within thirty (30) days of the date of the applicable invoice, except for amounts subject to a good faith dispute, provided that Subscriber notify Provider of any such dispute in writing prior to the date they would otherwise be due, and that Subscriber cooperates with Provider in promptly resolving such dispute. Any amount not paid when due will be subject to finance charges equal to one and one-half percent (1.5%) of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Provider to collect any amount that is not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason.
  3. Other than net income taxes imposed on Provider, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from its purchase or use of the Provider Services. Taxes will not be deducted from or set off against the fees set forth in the applicable Service Order.

TERM AND TERMINATION

  1. Agreement Term. This Agreement commences on the Effective Date and will remain in effect while any Service Orders are outstanding.
  2. Service Order Term. Each Service Order will commence on the specified effective date and will continue for the initial term specified in the applicable Service Order (“Initial Term”) unless the Service Order is terminated earlier in accordance with the terms of this Agreement.
  3. Auto-renewal. If auto-renewal is expressly specified in the Service Order, the Service Order will automatically renew for additional successive one-year terms unless either party provides written notice to the other at least thirty (30) days before the end of the then-current term that it does not want to renew. The Initial Term and any auto-renewal terms shall be, collectively, the “Term.” If auto-renewal is not specified, the Service Order will terminate at the end of the Initial Term.
  4. Termination for Cause. Either party may terminate a Service Order or this Agreement (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately upon written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
  5. Post-Termination Obligations. If this Agreement or a Service Order is terminated for any reason,  Subscriber will pay to Provider any fees or other amounts that have accrued prior to the effective date of the termination,  any and all liabilities accrued prior to the effective date of the termination will survive,  Subscriber will discontinue all use of the Provider Services, and (d) Provider will delete any Subscriber data in its systems related to the terminated Service Order within one hundred eighty (180) days after the effective date of termination. All provisions of this Agreement that, by their nature, are intended to survive termination (including those related to third party claims and limitations on liability) will remain in effect

CONFIDENTIALITY

  1. Definition of Confidential Information. For the purpose of this Agreement, “Confidential Information” means non-public information of Provider or Subscriber disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, or to which the other party may have access, or any other information which a reasonable person would consider confidential and/or which is marked “confidential” or “proprietary” or some similar designation by the disclosing party or which is of a confidential nature even though not specifically so designated. Confidential Information will not, however, include any information that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; (iv) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
  2. Protection of Confidential Information. Each of the parties agrees: (a) not to disclose any of the other party’s Confidential Information to any third parties except as mandated by law and except to those agents, advisors, or subcontractors who have a reasonable need to access such information, and who agree to be bound by confidentiality obligations no less stringent than those set forth in this Agreement; (b) not to use any of the other party’s Confidential Information for any purposes except carrying out such party’s rights and responsibilities under this Agreement; and (c) to keep the other party’s Confidential Information confidential using the same degree of care such party uses to protect its own confidential information; provided, however, that such party shall use at least reasonable care. These obligations shall survive termination of this Agreement. If a party is required by law to disclose the other party’s Confidential Information, it will promptly notify the other party (providing notice prior to disclosure if permitted by law), and provide reasonable assistance in seeking protection of such Confidential Information.

WARRANTIES AND DISCLAIMER

  1. Mutual Warranties. Each party represents and warrants to the other that:  this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and  no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
  2. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, PROVIDER MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. PROVIDER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT ON ITS BEHALF AND ON BEHALF OF ITS LICENSORS. PROVIDER RELIES ON THIRD PARTY DATA SOURCES FOR INFORMATION AND THEREFORE DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE PROVIDER SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE PROVIDER SERVICES OR THIRD PARTY DATA WILL ALWAYS BE AVAILABLE.

INTELLECTUAL PROPERTY INFRINGEMENT

  1. Infringement Remedy.  If Subscriber is enjoined or otherwise prohibited from using the Provider Services or a portion thereof based on an allegation that the Provider Services violate any third party intellectual property right (including a Claim), or if Provider reasonably determines that such prohibition is likely, then Provider will, at its sole expense and option: (a) obtain for Subscriber the right to use the allegedly infringing portions of the Provider Services; (b) modify the allegedly infringing portions of the Provider Services so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Provider Services with non-infringing items of substantially similar functionality.  If Provider determines that the foregoing remedies are not commercially reasonable, then Provider may terminate the impacted Service Order, or portion thereof, and will promptly provide a prorated refund to Subscriber for any prepaid fees received by Provider for any Provider Services that have not yet been performed at the time of termination.
  2. Exclusions from Obligations. Provider will have no obligation under this Section 8 for any infringement or misappropriation to the extent that it arises out of or is based upon use of the Provider Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination;  any aspects of the Provider Services that are provided to comply with designs, requirements, or specifications required by or provided by Subscriber, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications;  use of the Provider Services by Subscriber for purposes not intended or outside the scope of the license granted to Subscriber; Subscriber’s failure to use the Provider Services in accordance with written instructions provided by Provider, if the infringement or misappropriation would not have occurred but for such failure; or  any modification of the Provider Services not made or authorized in writing by Provider where such infringement or misappropriation would not have occurred absent such modification.
  3. Limited Remedy. This Section 8 states Provider’s sole and exclusive liability, and Subscriber’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Provider Services.

SUBSCRIBER INDEMNIFICATION

  1. Subscriber will defend Provider from any actual or threatened third party Claim arising out of or based upon Subscriber’s breach of Section 3, and indemnify Provider from all damages, costs, and attorneys’ fees finally awarded in any such Claim or all amounts that Subscriber agrees to pay to any third party to settle any such Claim. Subscriber’s obligation under this section is contingent on:(a) Provider giving Subscriber prompt written notice of the Claim; (b) Provider granting Subscriber full and complete control over the defense and settlement of the Claim; (c) Provider providing assistance in connection with the defense and settlement of the Claim as Subscriber may reasonably request; and (d) Provider’s compliance with any settlement or court order made in connection with the Claim, provided that Subscriber may not agree to any settlement that imposes any obligation on Provider without Provider’s consent. Provider will not defend or settle any Claim eligible for indemnification under this section without Subscriber’s prior written consent. .

LIMITATIONS OF LIABILITY

  1. Disclaimer of Indirect Damages. EXCEPT FOR LIABILITY ARISING OUT OF A BREACH OF SECTION 6, VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF A PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
  2. Cap on Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO PROVIDER UNDER THE APPLICABLE SERVICE ORDER DURING THE TWELVE MONTHS PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
  3. Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY PROVIDER TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

GENERAL

  1. This Agreement will not be interpreted or construed as: (a) creating or evidencing any association, joint venture, partnership, or franchise between the parties; (b) imposing any partnership or franchise obligation or liability on either party; or (c) prohibiting or restricting either party from collecting, licensing, or otherwise dealing in data or information from any third party.
  2. Export Compliance and Anti-Corruption. The Provider Services may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Subscriber shall not permit users to access or use the Provider Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation. Subscriber further represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value in connection with this Agreement (excluding any reasonable gifts and entertainment provided in the ordinary course of business).
  3. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement.
  4. Provider may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Provider remains responsible for all of its obligations under this Agreement.
  5. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by fax, e-mail, US mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement (or the applicable Service Order). Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier or sending an email or fax.
  6. Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
  7. Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Delaware, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each of the parties hereto irrevocably and unconditionally confirms and agrees that it is and shall continue to be (i) subject to the jurisdiction of the state courts of the State of Delaware, and (ii) subject to service of process in the State of Delaware. Each party hereto hereby irrevocably and unconditionally (a) consents and submits to the exclusive jurisdiction of any state court located in the State of Delaware (the “Delaware Courts”), including the Delaware Court of Chancery in and for New Castle County, for any actions, suits or proceedings arising out of or relating to this Agreement or the transactions contemplated by this Agreement (and agrees not to commence any litigation relating thereto except in such courts), (b) waives any objection to the laying of venue of any such litigation in the Delaware Courts and agrees not to plead or claim in any Delaware Court that such litigation brought therein has been brought in any inconvenient forum and (c) acknowledges and agrees that any controversy that may arise under this Agreement is likely to involve complicated and difficult issues, and therefore each such party hereby irrevocably and unconditionally waives any right such party may have to a trial by jury in respect of any litigation directly or indirectly arising or relating to this Agreement or the transactions contemplated by this Agreement. The parties acknowledge and agree that any action arising out of, or related to, this Agreement, the breach or threatened breach of the Agreement, or to enforce its terms shall not be subject to removal to federal court for any reason and each irrevocably waives any such right.
  8. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
  9. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Provider Services under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Provider Services will immediately terminate.
  10. Entire Agreement. This Agreement, including the applicable Service Orders, is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the Provider Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the parties relating to professional services relating to the Provider Services that Provider may provide. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Provider will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Provider specifically agrees to such provision in writing and signed by an authorized agent of Provider. This Agreement may be executed in multiple counterparts, and may be signed electronically or via facsimile.