Services Agreement
Latest Version – July 21, 2022
Previous Versions – https://www.strongdm.com/tos/services-agreement
This Services Agreement (this “Agreement”) is entered into by and between strongDM, Inc., a Delaware corporation with its principal place of business at 20 Park Road Suite J Burlingame, CA 94010 (“strongDM”) and the individual or company identified in the Subscription and/or Invoice, and is effective on the date of the first Invoice (as defined below) (“Effective Date”). This Agreement includes all Invoices and any exhibit or attachment hereto.
1. SERVICES AND SUPPORT
1.1 Access to Services. Subject to the terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the Service Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. In the event the total number of Authorized Users exceeds the number set forth in the UI (as defined below), Customer’s use of the Services will be subject to a pro-rata increase of the Fees payable hereunder in connection with such Authorized Users. “Customer” may include subsidiaries and affiliates of Customer.
1.2 Services. The Services delivered hereunder shall be the following: Provider’s provision to Customer of access to, through the internet, (a) an online platform (as currently provided and as modified and upgraded from time to time) that enables Customer to manage and monitor infrastructure, which may include databases (“Databases”), servers, and any other protocol Provider supports in the future and to utilize such other features that Customer may subscribe from time to time (including, as applicable, the servers, clouds, Kubernetes clusters, web applications and HTTP endpoints employed in the delivery of the Services, the “Platform”) and (b) the software application and any upgrades thereto enabling Customer to access such Platform (“Software” and together with the Platform, the “Services”) and the infrastructure, which may include Databases, servers, and any other protocol Provider supports in the future (collectively, together with any content, data and information contained in such infrastructure) to which the Services apply, the “Infrastructure”. Provider may change, discontinue, or deprecate any part of the Services or change or remove features or functionality of the Services from time to time, and Provider will notify Customer of any material change to or discontinuation of the Service.
1.3 Licensed Documentation. Subject to the terms and conditions herein, Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Service Term solely for Customer’s internal business purposes in connection with its use of the Services. For the purposes of this Agreement, “Documentation” means Provider’s user manuals, handbooks, and guides relating to the Services provided by Provider to Customer either electronically or in hard copy form/end user documentation relating to the Services, including those available at https://www.strongdm.com/docs (as such address may be updated from time to time).
1.4 Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services, or any intellectual property rights. Except for the limited rights expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or license or other right, title, or interest in or to the Provider IP. “Provider IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing, including Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services. Except as expressly set forth herein, Provider alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Provider IP or any suggestions, ideas, enhancement requests, feedback, recommendations or other information in whatever medium or form provided by Customer, Customer Representatives or other party relating to the Services (“Feedback”). Customer hereby assigns to Provider on Customer’s behalf, and on behalf of its Representatives, all right, title and interest in, and Provider is free to use, without any attribution or compensation to any party, all Feedback and contents of the Feedback for any purpose whatsoever.
1.5 Customer Administrator. (i) Customer shall designate at least one (1) employee (“Primary Contact”) who will be responsible for all matters relating to this Agreement and at least one (1) employee (who may also be the Primary Contact) (“Administrator”) who shall manage Infrastructure access for each individual authorized and paid in accordance with the terms herein who will use the Services to access the Infrastructure as an end user (“End Users”; together with the Administrator(s), the “Authorized Users”). For the avoidance of doubt, the reference to “End Users” shall also include the Administrator if the Administrator uses the Services to query any Infrastructure. Customer may change the individual designated as Primary Contact and/or the Administrator at any time.
(ii) The Services shall be accessed and used by the Administrator(s), acting on behalf of Customer, through a single point of entry (“Administrator Account”) via the Provider-hosted user interface (“UI”) or other means provided by Provider through which the Administrator may, on behalf of Customer, select the level of access to any or all Infrastructure by any of its End Users. The Administrator may change Customer’s selections on the UI or as otherwise permitted by the Services. In all cases, however, in the event of any dispute concerning Customer’s selections, the selections as reflected in Provider’s system immediately before such dispute shall be conclusive. The Services shall be accessed and used by each End User through a separate point of entry (“End User Accounts”; together with Administrator Accounts, but excluding any End User Accounts and Administrator Accounts where Provider is the registered Administrator or the registered End User, the “Accounts”) through which such End User can query Infrastructure to which such End User has been given access.
(iii) Access to the Administrator Account(s) by the Administrator(s) shall be enabled by use of username(s) assigned to Administrator(s) by Provider or another Administrator and password(s) selected by Administrator (“Administrator Credentials”). Access to End User Account(s) by each End User shall be enabled by use of username(s) assigned to such End User by Provider or the Administrator(s) and password(s) selected by such End User either via the Service or through an identity provider (“End User Credentials” and together with the Administrator Credentials, the “Credentials”). Customer is responsible for all activities occurring in all Accounts and Provider shall have the right, without further inquiry, to rely on the establishment of the Credentials as sufficient to authenticate Customer’s use of the Service. Customer shall immediately notify Provider of any unauthorized use of the Services or of any other breach of security occurring as a result of any activities of any of its End Users or of any vulnerabilities that Customer believes are contained in or caused by the Services such that Provider may take or recommend appropriate remedial measures. Provider shall have no liability for any loss or damage arising from Customer’s failure to comply with the provisions of this Section 1.5.
1.6 Service and Support. (i) Availability. Subject to the terms and conditions of this Agreement, Provider will undertake commercially reasonable efforts to make the Services available and provide support during the Service Term in accordance with the service levels set out in Provider’s Service Level Agreement located at https://www.strongdm.com/legal/service-level-agreement (which is incorporated herein by reference).
(ii) Security Addendum and DPA. Provider will implement reasonable and appropriate physical, technical, and organizational measures to protect the Services from unauthorized access, unlawful processing, and unauthorized or accidental loss, destruction, or damage as set forth in the Security Addendum located at https://www.strongdm.com/legal/security-exhibit (which is incorporated herein by reference). The parties agree to comply with the terms of the Data Processing Addendum (“DPA”) located at https://www.strongdm.com/legal/data-processing-agreement (which is incorporated herein by reference).
(iii) Suspension of Services. Notwithstanding anything to the contrary in this Agreement, Provider reserves the right to suspend Customer’s access to or use of the Services: (A) for scheduled or emergency maintenance, (B) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Provider, subject to and in accordance with Section 3.1, (C) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Services or (D) if Provider reasonably determines that (1) there is a threat or attack on any of the Provider IP, (2) Customer’s or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (3) Customer, or any Authorized User, is using the Provider IP for fraudulent or illegal activities; or (4) Provider’s provision of the Services to Customer or any Authorized User is prohibited by applicable law. Notwithstanding anything to the contrary in the foregoing, Provider shall use commercially reasonable efforts to suspend only that portion of the Services as is reasonably necessary to prevent the occurrence or continuation of such violation and/or harm.
(iv) In no event shall Provider be liable for any suspension, interruption or errors with respect to the Services resulting from (a) any login error, connection failure or other issues as recorded in Provider’s system as being originated from the Infrastructure and/or Customer’s server (if applicable), which record shall be conclusive or (b) any failure by the Customer, the Administrator or any End User to properly install Software as Provider may instruct from time to time.
(v) Beta Services. Certain aspects of the Services may be in beta form as designated by Provider from time to time (“Beta Services”). In addition to the disclaimers of warranty set out in this Agreement, the Beta Services are provided on an as-is basis with the express understanding that they may not have been tested, have faults, and may not be as secure as other elements of the Services. Any indemnity, representation or warranty that Provider provides herein does not apply to the Beta Services. Provider reserves the right to terminate the Beta Services at any time, even if Customer has relied on them as a material inducement to enter into this Agreement. Provider makes no guarantee that Beta Services will be put into production or will otherwise be offered as a feature to the Services for all customers of Provider.
1.7 Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information. “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services, and includes, but is not limited to, technical information about the Infrastructure, devices, systems, hardware, software, services, or peripherals associated with Customer use of the Services, and logs and log files (including, but not limited to, any Infrastructure query logs), and may include user names, login credentials, contact information and IP addresses. Provider will use Aggregated Statistics solely for purposes of (a) performing the Services, (b) authenticating and providing support and maintenance services to Customer and its users, (c) facilitating updates, modifications and improvements to the Services, (d) communicating with Customer about the Services, (e) performing analytics and obtaining statistics on the use and performance of the Services and (f) detecting, preventing, and responding to fraud, intellectual property infringement, violations of this Agreement, violations of law, or other misuse of the Services. Customer as the data owner and controller shall be responsible for providing any required notices and obtaining any requisite consents of Customer users, as required by applicable law.
2. CUSTOMER RESPONSIBILITIES
2.1 General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
2.2 Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not permit or allow any person other than the Authorized Users to access or use the Services. Customer shall not, and shall ensure that the Administrator, any End User and any third party do not, in each case directly or indirectly: (a) reverse engineer (except to the extent statutory law expressly prohibits or limits restrictions on reverse engineering, but only to the extent required by such statute), decompile, disassemble, decode, adapt or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of, or otherwise attempt to derive or gain access to, the Services, any component thereof or any software, documentation or data related to the Services or other Proprietary Information; (b) sell, resell, license, sublicense, distribute, transfer, rent, lease, lend, assign, public, disclose or otherwise make available the Services or any Proprietary Information to any party not expressly permitted herein, (c) copy, modify, translate, or create derivative works based on the Services or other Proprietary Information, in whole or in part; (d) use the Services or other Proprietary Information for timesharing or service bureau purposes or for any purpose other than its own internal business purposes; (e) remove any proprietary notices from the Services or Documentation; (f) use the Credentials, Services or other Proprietary Information other than in accordance with this Agreement or in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any Applicable Law (as defined below); (g) perform or permit any act which interferes with or disrupts the Services or other Proprietary Information. In connection with the use of the Services and performance of this Agreement, Customer will, and will cause the Administrator and all End Users to, adhere to (a) all applicable international, federal, state and local laws, rules, regulations, directives and other requirements of any governmental authority of competent jurisdiction currently in effect and as they become effective, and (b) any other terms or policies communicated in writing to Customer by Provider from time to time.
2.3 Customer Responsibilities. (i) Installation. Access to the Services by the Administrator and the End Users will require the Customer, the Administrator and the End Users to install the Software as Provider may instruct from time to time, including on workstations and Customer-owned servers. Customer is responsible for installing, or causing the installation of, the Software and any and all components required for the Services on the Administrator’s and each End User’s computers, laptops or other devices (or, if applicable, on the Customer’s server), in each case, in accordance with this Agreement and for obtaining and maintaining all computer hardware, software, servers and communications equipment and services needed to access the Services.
(ii) Further Efforts. Customer will cooperate with Provider in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Provider may reasonably request to implement or give effect to the provisions hereof.
(iii) Access and Security. Customer will establish such means required by Provider for verifying that only designated employees of Customer have access to any administrative functions of the Services. Customer is solely responsible for maintaining the security and confidentiality of all Accounts, all Credentials and files, and for all uses of all Account with or without Customer’s knowledge or consent. Furthermore, Customer is solely responsible for properly configuring and using the Services and taking its own steps to maintain appropriate security, protection and backup of its Infrastructure, which may include the use of encryption technology to protect such Infrastructure from unauthorized access and routine archiving of such Infrastructure. Customer shall be responsible for all use of the Credentials, Infrastructure, Services, all Accounts and the UI by its Administrator and/or End Users as if such use were directly by Customer and shall be liable for any breach of this Agreement by its Administrator and/or End Users, or any other persons that shall have use or access of the foregoing by virtue of Customer’s breach of its obligations herein.
(iv) Export Controls Compliance. Customer will be responsible for compliance with, and shall comply with, U.S. and any other applicable export control rules, regulations, directive or laws with respect to its use of the Services and will not export or re-export the Services or any Customer Data without first obtaining a license from the U.S. Department of Commerce or other applicable export or regulatory agency as required by law.
(v) US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
3. PAYMENT OF FEES
3.1 Fees. Customer shall pay Provider the fees set forth in the Subscription Sign-Up without offset or deduction (collectively, the “Fees”).
For the Initial Term (as defined below), Customer will be invoiced upon sign-up for a pro-rata portion of the Fee for the remainder of the first month of the Initial Term. For all Renewal Terms (as defined below), Customer will be invoiced for the Fees on the first day of the month for each such Renewal Term. Customer shall pay all invoices within thirty (30) days following the date of such invoice. All fees will be charged via the payment information provided by Customer in the Subscription Sign-Up.
All payments hereunder shall be made in US dollars. Provider reserves the right to modify the fees payable for renewal terms at the expiration or termination of this Agreement or if Customer consents in writing to add additional features to the Services. If Customer fails to make any payment when due, any outstanding Fees or other amounts that are due and payable to Provider are subject to a finance charge of one and one-half percent (1.5%) per month, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection of any late payments or interest, including attorneys’ fees, court costs and collection agency fees. If such failure to pay continues for 60 days or more, Provider may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
3.2 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and other similar assessments. Customer shall be solely responsible for any and all sales, use, excise or other taxes or duties, tariffs or charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder (including as invoiced by Provider), other than any taxes imposed on Provider’s income. In the event of a sales tax audit or other actions by a state or any other governmental authority of competent jurisdiction which resulted in a determination that the Services are subject to additional tax assessments, Provider reserves the right to bill Customer, at any time, for the additional tax that Provider is required to pay to such authority.
4. TERM AND TERMINATION
4.1 Term. This Agreement shall enter into force on the Effective Date and shall remain in effect through the end of the month in which Customer completed the Subscription Sign-Up (the “Initial Term”). Thereafter, this Agreement shall automatically renew for subsequent one (1) month periods (each, a “Renewal Term”, and together with the Initial Term, the “Service Term”).
4.2 Termination. In addition to any other express termination right set forth in this Agreement:
(i) Customer may terminate this Agreement at any time upon thirty (30) days’ prior written notice to Provider;
(ii) Provider may terminate this Agreement, effective on written notice to Customer, if Customer (A) fails to pay any amount when due hereunder, and such failure continues for 60 days or more, or (B) breaches any of its obligations under Section 2.2 or Article 10;
(iii) either Party may terminate this Agreement, effective upon written notice to the other Party, if the other Party materially breaches this Agreement, and such breach (A) is reasonably determined by the non-breaching Party to be incapable of cure, or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iv) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, (A) if such other Party becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (B) upon the institution by or against such other Party of insolvency, receivership or bankruptcy proceedings, whether voluntary or involuntary, (C) upon the other Party's making an assignment for the benefit of creditors, (D) if such other Party applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business, or (E) upon the other Party's dissolution or ceasing to do business.
4.3 Effect of Expiration or Termination. In the event of a termination or expiration of this Agreement, all licenses granted under this Agreement and the access rights granted in Article 1 shall terminate automatically. Customer shall immediately discontinue use of the Provider IP and delete, destroy, erase or return all copies of Provider’s Proprietary Information and all copies of any documents (whether written or electronic) related to the Services, and return to Provider or destroy any and all copies of Provider’s Proprietary Information in Customer’s possession or control and an executive officer of Customer shall certify in writing to Provider that it has fully complied with these requirements. No expiration or termination shall affect Customer’s obligation to pay all Fees that may have become due and payable before such expiration or termination, or entitle Customer to any refund. Provider reserves the right, without any liability, to shut off the Services, and terminate Customer’s Account(s), upon the effective date of expiration or termination.
4.4 Survival. The following Sections shall survive any expiration or termination of this Agreement: Section 1.4 and Articles 2, 3, 4 and 7 through 11 (inclusive). No other provisions of this Agreement shall survive the expiration or earlier termination of this Agreement.
5. REPRESENTATIONS AND WARRANTIES
5.1 Provider Representations and Warranties. Provider represents and warrants that (i) it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to enter into this Agreement and to perform its obligations hereunder, (ii) its performance of this Agreement will not breach or violate any other obligation (contractual or otherwise) by which it may be bound, (iii) it will comply with all Applicable Laws, and (iv) the Services, as used by Customer in accordance with this Agreement, does not, and shall not, infringe, violate or misappropriate U.S. intellectual property rights of any third party.
5.2 Customer Representations and Warranties. Customer represents and warrants that (i) it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to enter in this Agreement and to perform is obligations hereunder, (ii) to the extent Customer is an individual entering into this Agreement on behalf of an entity, Customer has the authority to bind such entity to all of the terms and conditions in this Agreement, (iii) its performance of this Agreement will not breach or violate any other obligation (contractual or otherwise) by which it may be bound (including, without limitation, any obligation that Customer may have to any of the Infrastructure), (iv) it will comply with all Applicable Laws, regulations, orders and other requirements of any governmental authority of competent jurisdiction in its performance of this Agreement and (v) any Infrastructure in any form that is uploaded or otherwise transferred to the Services by Customer or on Customer’s behalf is owned, licensed or lawfully obtained by Customer and does not, and shall not, infringe, violate or misappropriate any third party’s rights.
6. WARRANTY DISCLAIMER
PROVIDER DOES NOT MAKE ANY REPRESENTATIONS OR GUARANTEES REGARDING SERVICE LEVELS, UPTIME OR AVAILABILITY OF THE SERVICES UNLESS SPECIFICALLY IDENTIFIED IN THE SERVICE LEVEL AGREEMENT, AND THE REMEDIIES SET FORTH IN THE SERVICE LEVEL AGREEMENT ARE CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY WITH RESPECT TO THE SUBJECT OF THE SERVICE LEVEL AGEEMENT. EXCEPT AS OTHERWISE PROVIDED IN THE SERVICE LEVEL AGREEMENT,] THE PROVIDER IP AND ANYTHING PROVIDED BY PROVIDER IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR OTHERWISE OR THAT THE SERVICES WILL BE UNINTERRUPTED, AS WELL AS ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. NO ADVICE OR INFORMATION OBTAINED BY CUSTOMER FROM PROVIDER SHALL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
7. INDEMNIFICATION
7.1 Provider Indemnity. Provider shall indemnify, defend and hold harmless Customer from and against any losses, damages, liabilities, costs and expenses (including reasonable attorney’s fees) (“Losses”) arising out of or related to any third-party claim, suit, action nor proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights or trade secrets, provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider and allows Provider sole authority to control the defense and settlement of such claim. Notwithstanding anything to the contrary herein, Provider shall have no obligation or liability for any Losses or Third-Party Claim arising from (a) use of the Services other than in accordance with this Agreement; (b) modification of the Services not made by Provider; (c) use of the Services in combination with any other products, services, materials, data, software, hardware, equipment or technology not provided by the Provider or authorized by Provider in writing if the Services would not be infringing in the absence of such combination, (d) failure by Customer to install required updates to the Services as requested by Provider, (e) Customer Data or (f) third-party products. If Provider believes Customer’s use of the Services under the terms of this Agreement may be enjoined, then Provider may, at its sole option and expense and as Customer’s sole remedy, either (i) procure for Customer a license to continue using the Services in accordance with the terms of this Agreement; (ii) replace or modify the allegedly infringing Services, or component or part thereof, to avoid the infringement; or (iii) terminate the licenses and access to the Services, and refund any unearned Fees, effective immediately on written notice to Customer.
7.2 Customer Indemnity. Customer shall indemnify, defend and hold harmless and, at Provider’s option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct, (ii) use of the Services in a manner not authorized by this Agreement, (iii) use of the Services in combination with any other products, services, materials, data, software, hardware, equipment or technology not provided by the Provider or authorized by Provider in writing if the Services would not be infringing in the absence of such combination or (iv) modifications to the Services not made by Provider; provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
7.3 Sole Remedy; Limitation of Indemnity Obligation. This Section 7 sets forth Customer’s sole remedies and Provider’s sole liability and obligation for any actual, threatened or alleged claims that the Services infringe, misappropriate or otherwise violate any intellectual property rights of any third party.
8. LIMITATION OF LIABILITY
IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES OR IF DAMAGES OR LOSSES WERE OTHERWISE FORESEEABLE, FOR ANY: (A) INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY, ENHANCED, PUNITIVE OR CONSEQUENTIAL DAMAGES, (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, LOST SALES, LOST PRODUCTION, LOST REVENUES OR LOST OR ANTICIPATED PROFITS, (C) LOSS OF GOODWILL OR REPUTATION, (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (E) LOSS OR CORRUPTION OF DATA, ERROR OR OMISSION IN THE SERVICES, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST OR (E) COST OF REPLACEMENT OR COVER GOODS OR SERVICES. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF PROVIDER ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THREE (3) TIMES THE TOTAL AMOUNTS PAID (AND AMOUNTS ACCRUED BUT NOT YET PAID) TO PROVIDER UNDER THIS AGREEMENT IN THE SIX (6)-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR $250,000, WHICHEVER IS LESS. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
THE WARRANTIES MADE BY AND OBLIGATIONS OF PROVIDER IN THIS AGREEMENT RUN ONLY TO CUSTOMER AND NOT TO ITS AFFILIATES, IT CLIENTS OR ANY OTHER ENTITY OR THIRD PARTY. UNDER NO CIRCUMSTANCES SHALL ANY AFFILIATE OR CLIENT OF CUSTOMER OR ANY OTHER ENTITY OR THIRD PARTY BE CONSIDERED A THIRD PARTY BENEFICIARY OF THIS AGREEMENT OR OTHERWISE ENTITLED TO ANY RIGHTS OR REMEDIES UNDER THIS AGREEMENT, EVEN IF SUCH AFFILIATES, CLIENTS OR OTHER THIRD PARTY ARE PROVIDED ACCESS TO THE SERVICES OR INFRASTRUCTURE MAINTAINED IN THE SERVICES, INTERNET OR OTHER NETWORKED ENVIRONMENT. CUSTOMER SHALL HAVE NO RIGHTS OR REMEDIES AGAINST PROVIDER EXCEPT AS SPECIFIED IN THIS AGREEMENT.
9. CONFIDENTIALITY AND PUBLICITY
9.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). “Proprietary Information” with respect to Customer shall include, without limitation, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services ( “Customer Data”). “Proprietary Information” with respect to the Provider shall include, without limitation, the Provider IP, provided, “Proprietary Information” with respect to Provider shall not include Customer Data. The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary Information solely to those employees, directors, officers, managers, members, agents, affiliates and advisors (including, without limitation, legal advisors) (collectively, “Representatives”) with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by Provider in order to fulfill its performance obligations under this Agreement or is information that is aggregated and does not identify Customer or its End Users specifically. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirors.
9.2 Provider agrees that, as between Customer and Provider, all Infrastructure and data generated, processed, or stored on the Services (as intended usage of the Services), including Customer’s Infrastructure query logs and machine-generated data produced by applications and systems are Customer’s Proprietary Information. Except for such Proprietary Information, Customer acknowledges that Provider does not wish to receive any Proprietary Information from Customer that is not necessary for Provider to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Provider may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information. Customer may instruct Provider (which instruction must be in writing) to use commercially reasonable efforts to delete any or all Infrastructure query logs, provided, that Customer acknowledges that (a) such deletion may cause certain functions or features of the Services to become unavailable and (b) Provider shall have no obligation or liability with respect to any loss or damage arising from any such deletion or from the unavailability of any functions or features of the Services as a result of such deletion. Notwithstanding the foregoing, Provider shall not be required to return or destroy any computer records or files containing Proprietary Information that have been created pursuant to its standard archiving or backup procedures, or contained in any archived electronic communications (e.g. emails), and may also retain a copy of Proprietary Information if required by Applicable Law. The confidentiality obligations contained in this Agreement shall apply to the archived and legally required copies so long as they exist.
9.3 During the term of Customer's license, provider shall have the right to identify Customer (by name and/or by using the logo provided by Customer to Provider) in any of its general listing of customers or partners or other marketing materials
10. MISCELLANEOUS
10.1 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
10.2 Assignment. This Agreement is not assignable, transferable or sublicensable by either party except with the other party’s prior written consent and any such purported assignment without such prior written consent shall be null and void; provided, however that either party may assign this Agreement without the other party’s consent in connection with a merger, acquisition or sale of all or substantially all its assets to which this Agreement relates, and in such event this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
10.3 Entire Agreement; Integration. Both Parties agree that this Agreement, together any other documents incorporated herein by reference, 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. The waiver by either party of a breach or a default of any provision shall not be construed as a waiver of any succeeding breach of the same or any other provision. In the event of any inconsistency between the statements made in the body of this Agreement and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, any then-applicable Subscription Sign-Up, (ii) second, this Agreement, excluding any exhibits and Policies; (ii) second any other documents incorporated herein by reference (including the exhibits and Policies).
10.4 No Partnership. 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 Provider in any respect whatsoever.
10.5 Recovery of fees. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees.
10.6 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.
10.7 Force Majeure. Neither Party shall be liable for, nor shall either party be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement (other than a failure to pay amounts due) as a result of a cause beyond its control, including any natural calamity, act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, disruption or outage of communications, power or other utility failure, failure to perform by any supplier or other third party, or other cause which could not have been prevented with reasonable care (“Force Majeure Event”); provided, foregoing shall expressly exclude, and Force Majeure Event shall not include, any disruption or failure to perform caused by any pandemic, epidemic, disease outbreak or other public health emergency (including the Coronavirus Disease 2019 (COVID-19) or any similar or related disease caused by the SARS-SoV-2 virus or any mutation or evolution thereof).
10.8 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
10.9 Waiver of Jury Trial. Customer and Provider each waive any right to jury trial in connection with any and all disputes arising out of or related to this Agreement.
10.10 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Article 9 or, in the case of Customer, Section 2.2, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
10.11 Governing Law; Submission to Jurisdiction. This Agreement will be governed by the laws of the State of New York without regard to its conflict of laws provisions. Any and all disputes arising out of or related to this Agreement or performance hereof, shall be brought in the Federal or state courts in the State of New York and the parties hereby agree to the exclusive jurisdiction thereof for such purposes and waive any objection thereto.
10.12 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.