Terms of Service

Summary 
These Terms and Conditions (together with any attachments thereto, these “T&Cs”) set forth the terms for the provision of Products and Services by Kibo Software, Inc. (“Kibo” or “Partner”) for the entity utilizing the Service (“Customer”).

Terms and Conditions

By using the Services, you agree to be bound by the following terms and conditions. Please read them carefully as Kibo’s Services are diverse, and sometimes additional terms or product requirements, including age requirements, may apply. If additional terms are applicable, they will be available with the relevant Services and become part of your agreement with Kibo upon using those Services.

1. Definitions

“Access Credentials” refers to any method or technology used to verify an individual’s identity and authorization to access and use the Services, including but not limited to usernames, identification numbers, passwords, licenses or security keys, security tokens, personal identification numbers (PIN), or other security codes or devices.

“Aggregated Statistics” refers to data and information related to Customer’s use of the Services that are used by Provider in an aggregate and anonymized manner, including the compilation of statistical and performance information related to the provision and operation of the Services.

“Authorized User” refers to Customer’s employees, consultants, contractors, agents, customers, or clients who (i) are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (ii) for whom access to the Services has been purchased hereunder.

“Confidential Information” has the meaning set forth in Section 9.

“Customer Data” refers to 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, other than Aggregated Statistics.

“Customer Systems” refer to Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), networks, and Internet connectivity, whether operated directly by Customer or through the use of third-party services.

“Documentation” refers to 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.

“Feedback” has the meaning set forth in Section 10(c).

“Fees” has the meaning set forth in Section 8(a).

“Law” refers to any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, provincial, territorial, municipal, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

“Initial Term” shall mean the initial term of this Agreement as defined in Section 14(a).

“Losses” shall mean the losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) as defined in Section 12(a)(i).

“Notice” shall mean the notice provided in accordance with Section 16(b).

“Participant” shall mean those requesting, participating in and receiving the Services.

“Provider IP” shall mean the Services, the Documentation, and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.

“Provider Materials” shall mean the Services, specifications, Documentation and Provider Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include any information, data or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.

“Provider Systems” shall mean the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Provider or through the use of third-party services.

“Renewal Term” shall mean the renewal term of this Agreement as defined in Section 14(a).

“Service Suspension” shall mean the suspension of Services in accordance with Section 5(e).

“Services” shall mean the software-as-a-service offerings offered by Kibo and purchased by Customer.

“Kibo Account” shall mean the Customer’s individual user account, as provided to it by Provider.

“Term” shall mean the term of this Agreement as defined in Section 14(a).

“Third-Party Claim” shall mean the third-party claim as defined in Section 12(a)(i).

“Third-Party Products” shall mean any third-party products provided with or incorporated into the Services.

2. Registration
   • (a) Participant must meet the business email registration requirement in advance to receive Services offered by Kibo.
   • (b) Registration by the Participant must be made via submitting an online form at https://academy.kibocommerce.com/by creating a personal user account (“User Account”). With respect to the User Account, the following applies: The Participant i) uses their professional email address to create an account ii) chooses a secure password, keeps it secret and keeps it confidential; iii) does not transfer any part of its account to others (for example, to contacts); and iv) complies with applicable laws. The Participant is responsible for all actions taken through their User Account, unless the Participant has closed the account or reported abuse. Creating a User Account by providing false information is a violation of Academy T&C.
   • (c) If the requirements for a successful registration by the Participant are met, Kibo will approve and confirm the Participant’s registration. Upon successful completion of the registration by the Participant, Kibo Learning will send a confirmation e-mail to Participant.
   • (d) Upon its registration, Participant can select such Services it would like to receive by Kibo and has the opportunity to enroll for such Services at https://academy.kibocommerce.com/(“Academy Website”).  Upon enrollment in a Service and full payment , an agreement on the provision of the Services by Kibo and the receipt of such by the Participant shall come into effect (“Agreement on Services”).
   • (e) Kibo reserves the right to change or discontinue any Services or change the cost associatedfor them in the future.
   • (f) Participant uses the content and information made available in connection with Kibo’s Services at its own risk and Kibo makes no warranties as to completeness or accuracy of such content and information.
3. Training Courses
   • (a) As part of its offering on Services, Kibo provides courses on trainings (“Training Course(s)”) for Participants according to the conditions listed for each Training Course on the Academy Website.
   • (b) Kibo is responsible for the provision and content of such Training Courses under the Agreement on Services.
   • (c) Kibo shall be authorized to engage a third party to provide all or individual Services for Training Courses Kibo is obligated to provide.
   • (d) Training Courses can be heldon-site at Kibo’s business premises, the Participant’s premises, as self-paced online / e-learning course, as an instructor-led online training via a video communications app or web conferencing tool, or as otherwise mutually agreed between the Parties (“Training Course Location(s)”) at an agreed date and time. Kibo may change the Training Course Location, date and time of the Training Course by giving an appropriate period of notice.
   • (e) If a Training Course is held on-site at Kibo’s business premises, Participant shall be responsible for out-of pocket, travel and accommodation expenses incurred.
   • (f) If a Training Course is held on-site at the Participant‘s premises, Participant shall reimburse Kibo for all training, travel, and accommodation related expenses incurred (including travel to and from the Participant’s premises and accommodation at the location). All travel and subsistence expenses to be reimbursed must be of a reasonable scale and amount and, where possible, agreed between the Parties beforehand. Unless otherwise specified, Participant shall reimburse Kibo for travel time in connection with the Training Course held on-site at the Participant’s premises (both travel to and from the Participant’s premises) i addition to the charges for the Training Course.
4. Certification Program
   • (a) Kibo provides a program on certifications (“Certification Program”) for Participants according to the conditions listed for the Certification Program on the Academy Website.
   • (b) Through the Certification Program, the Participant has the opportunity to take final exams to obtain certification on a specific subject area (“Comprehensive Exams”), which, if passed successfully, qualifies the Participant as a specialist according to the knowledge acquired through the respective Training Course, and is therefore evidenced by a certificate valid for two (2) years (“Certificate”). Merely taking the Comprehensive Exams without meeting the relevant conditions to successfully pass such does not entitle the Participant to obtain the certificate.
   • (c) The conditions for passing the Certification Program shall be determined at Kibo’s discretion and may be amended by Kibo at any time.
   • (d) Certification Exams can be heldon-site at Kibo’s business premises, the Participant’s premises, as online Certification Exam, or as otherwise mutually agreed between the Parties (“Certification Exam Location(s)”) at an agreed date and time. Kibo may change the Certification Exam Location, date and time of the Certification Exam by giving an appropriate period of notice.
   • (e) Participant may only use any material and tools not provided by Kibo during the Certification Exams to the extent Kibo explicitly allows it. Within forty-eight (48) hours after taking the Certification Exams, Kibo will inform the Participant of the results of the Certification Exams.
   • (f) The Participant is allowed to re-take the Certification Exams multiple times.
   • (g) Participant may undertake re-certification to maintain its certification status. Without having an effective certification status in place, the Participant is prohibited from showing a successful certification status.
5. Access and Use
   • (a) Provision of Access. Provided that the Customer has paid the Fees and complied with all other terms and conditions of this agreement, the Provider hereby grants to the Customer a non-exclusive, non-transferable (except as permitted under Section 13(j)) right to access and use the Services during the Term, exclusively for use by Authorized Users in accordance with the terms and conditions herein. Such usage is restricted to internal use by the Customer. The Provider shall furnish the Customer with the requisite passwords and network links or connections to enable access to the Services. The aggregate number of Authorized Users shall not surpass the number specified in the plan purchased by the Customer, unless mutually agreed upon in writing by the Parties and subject to the appropriate adjustment of the Fees payable hereunder.
   • (b) Documentation License. Pursuant to the provisions set forth in this Agreement, the Provider hereby confers upon the Customer a non-exclusive, non-sublicensable, non-transferable (except as in conformity with Section 13(j)) license to employ the Documentation solely for the Customer’s internal business purposes associated with the utilization of the Services during the Term.
   • (c) Use Restrictions. The Customer is prohibited from utilizing the Services for any purposes beyond the access granted in this Agreement. The Customer shall not, at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation 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.
   • (d) Reservation of Rights. The Provider retains all rights not explicitly granted to the Customer under this Agreement. With the exception of the restricted rights and licenses expressly granted under this Agreement, nothing in this Agreement confers, by implication, waiver, estoppel, or any other means, any intellectual property rights or other right, title, or interest in or to the Provider’s intellectual property to the Customer or any third party.
   • (e) Suspension. Notwithstanding any provision to the contrary in this Agreement, the Provider may temporarily suspend Customer’s or any Authorized User’s access to any part or all of the Services if: (i) the Provider reasonably determines that (A) there is a threat of or misuse of any of the Provider’s intellectual property, (B) Customer’s or any Authorized User’s use of the Provider’s intellectual property disrupts or poses a security risk to the Provider’s intellectual property or to any other customer or vendor of the Provider, (C) Customer or any Authorized User is using the Provider’s intellectual property for fraudulent or illegal activities, (D) subject to applicable law, Customer has stopped doing business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, (E) the Provider’s provision of the Services to Customer or any Authorized User is prohibited by applicable law, or (F) technical repairs or maintenance are required for the Provider’s systems; (ii) any Provider vendor 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 (iii) in accordance with Section 5(a) (each such suspension described in sub-clauses (i), (ii), or (iii), a “Service Suspension”). The Provider will make commercially reasonable efforts to provide written notice of any Service Suspension to the Customer and to provide updates regarding the resumption of access to the Services following any Service Suspension. The Provider will use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after curing the event giving rise to the Service Suspension. The Provider will not be liable for any damages, liabilities, losses (including any loss of data or profits), or any other consequences that the Customer or any Authorized User may suffer as a result of a Service Suspension.
   • (f) Changes. Provider retains the exclusive right to modify or alter the Services and Provider Materials, as deemed necessary or useful, to maintain, improve or upgrade the quality or delivery of its services, to improve the competitive strength or marketability of Provider’s services, or to enhance the performance and cost efficiency of the Services, or to comply with any applicable law. Any such changes or modifications will be made at the sole discretion of the Provider. The Provider shall inform the Customer in advance of any significant changes or modifications to the Services or Provider Materials, if feasible, and shall provide the Customer with any necessary assistance to enable the Customer to adapt to such changes or modifications.
   • (g) Subcontractors. A provider may, from time to time, in its discretion engage third parties to perform Services (each, a “Subcontractor”).
   • (h) Aggregated Statistics. Provider has the right to monitor and collect data on Customer’s use of the Services, including Aggregated Statistics. Provider retains all intellectual property rights to Aggregated Statistics and all ownership thereof. Customer acknowledges that Aggregated Statistics may be based on their input data. Provider may publicly share Aggregated Statistics in compliance with applicable Law and use them as permitted by applicable Law, provided that they do not disclose any of Customer’s Confidential Information.
   • (i) Suspension or Termination of Services. Provider has the right, either directly or indirectly, to suspend, terminate or deny access to all or part of the Services or Provider Materials, to Customer, any Authorized User or any other Person, without any resulting obligation or liability, if: (a) Provider receives a Governmental Order that requires Provider to do so; or (b) Provider believes, at its sole discretion, that: (i) Customer or any Authorized User has breached any term of this Agreement, accessed or used the Services beyond the authorized scope or for an unauthorized purpose, or in any way that does not comply with the Specifications; (ii) Customer or any Authorized User has engaged or is likely to engage in fraudulent, misleading, or unlawful activities; or (iii) this Agreement has expired or been terminated. This section does not restrict any of Provider’s other rights or remedies under this Agreement, whether at law or equity. The Provider may use a Provider disabling device or any other lawful means to suspend or terminate access.
6. Customer Responsibilities
   • (a) General. The Customer is solely responsible for any uses of the Services and Documentation that result from access granted by the Customer, whether such access or use is permitted under this Agreement or in violation of it. This responsibility applies to all acts and omissions of Authorized Users, and any breach of this Agreement by an Authorized User will be considered a breach of this Agreement by the Customer. The Customer agrees to inform all Authorized Users of the terms and conditions of this Agreement as it relates to their use of the Services, and shall take all reasonable measures to ensure that Authorized Users comply with these provisions.
   • (b) Customer Obligations. Customer further acknowledges, and agrees that:
     • (i) it will keep all access credentials and passwords provided private and secure;
     • (ii) The Customer shall ensure that all Customer Systems through which the Services are accessed or used are set up, maintained and operated in compliance with the Documentation.
     • (iii) The Customer shall take full responsibility for all Customer Data, content, and information it posts, uploads or provides to the Provider Systems.
     • (iv) The Customer shall not upload any potentially fraudulent, deceitful, defamatory, obscene, violent, hateful, racially discriminatory, illegal or offensive Customer Data, content, or materials, and acknowledges that Provider is not responsible for any such content and cannot be held liable for it. The Customer agrees that any content uploaded to their account is their sole discretion.
     • (v) The Customer acknowledges that any content uploaded or actions performed through their Kibo Account are done so at their own risk.
     • (vi) The Customer is solely responsible for all correspondence and dealings with users of their Kibo Account or website.
     • (vii) The Customer warrants that they have express permission to use all content and images on their Kibo Account.
     • (viii) The Customer shall provide all reasonable cooperation and assistance to enable Provider to exercise its rights and perform its obligations under this Agreement.
   • (c) Third-Party Products. Provider may make available Third-Party Products to the Customer, which are subject to their own terms and conditions. The Customer is solely responsible for reviewing and understanding these terms and conditions. Provider does not own or operate these Third-Party Products, has no control over them, and makes no representations or warranties regarding them. If the Customer cannot or will not comply with the terms and conditions of the Third-Party Products, Provider may prohibit them from using the Services.
7. Service Levels; Support; Data Backup
   Subject to the terms and conditions of this Agreement:
   • (a) Provider will use commercially reasonable efforts to ensure that the Services are available at least 99.5% of the time during each Service Period, as measured over the course of each calendar quarter, excluding the Exceptions specified in this Section 4 (the “Availability Requirement”).
   • (b) The following are Exceptions to the Availability Requirement, and no Service Level Failure will occur in connection with any failure to meet the Availability Requirement or impaired ability of the Customer or its Authorized Users to access or use the Services that is due, in whole or in part, to any:
     • (i) act or omission by Customer or any Authorized User, including access to or use of the Services by Customer or any Authorized User using their Access Credentials that do not comply with this Agreement and the Services;
     • (ii) delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement;
     • (iii) Internet connectivity issues experienced by the Customer or its Authorized Users;
     • (iv) Force Majeure Event;
     • (v) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Provider under this Agreement;
     • (vi) scheduled downtime; ordisabling, suspension, or termination of the Services under Section 5(i).
   • (c) Technical Support. Provider offers technical support to Customers solely for issues directly related to the Services during weekday business hours between 10:00 and 18:00 Eastern Standard Time (excluding Holidays). In the event of server downtime caused by a server issue, the matter will receive top priority to ensure expedient access is made available. Support requests will be addressed in the order received as long as they comply with the guidelines specified in this Section 4(c). If a request is made outside of business hours, Provider will respond at the earliest possible time during business hours. The level of support a customer is entitled to depends on their subscription plan and Provider may refuse support if contacted through an unsupported means of communication. Support will only be provided to Authorized Users and not to other individuals, including non-administrators, unverified administrators, and employees or executives of the Customer who are not Authorized Users. Before seeking support from Provider, the Customer must have made reasonable efforts to troubleshoot and solve their problem independently, including consulting the Provider’s help center. The Customer agrees to use Provider’s support services reasonably and only when necessary. Provider reserves the right to terminate or suspend support services for Customers who fail to comply with the terms of this Section 7(c).
   • (d) Data Backup. Provider will take standard industry precautions to regularly maintain and back up Customer data. Provider takes daily snapshots to ensure that Customer data is recoverable in the unlikely event of server downtime. However, the Services do not replace the need for the Customer to maintain regular data backups or redundant data archives. Provider assumes no responsibility or liability for any loss, alteration, destruction, damage, corruption, or recovery of Customer data.
8. Fees & Plans, Payments, and Refunds
   • (a) The Customer shall pay the Provider the Fees as set forth in the plan purchased by the Customer. The Customer shall make all payments in USD prior to utilizing the Services. In case of non-payment, the Provider may charge interest on the past-due amount at the rate of 1.5% per month, or if lower, the maximum amount permitted under applicable Law in addition to withholding access to the products and services herein.The Provider may charge a $50 service fee per chargeback made by the Customers against the Provider, in addition to the existing amount charged back and owed to the Provider and any legal fees incurred.
   • (b) If at the end of any Term, the plan that the Customer had purchased during said Term is no longer available, the Customer shall be automatically migrated to the most similar plan then available, unless the Customer advises the Provider in writing of another choice. Any applicable discounts and promotions expire at the end of the Term.
   • (c) The Provider will not provide refunds to Customers who cancel their service during their billing cycle. Customers on monthly plans will be charged at the end of each billing cycle in arrears for the previous month to account for overages, if applicable. Customers on yearly plans who cancel prior to the end of any given Term will not be provided with a refund but will be permitted to continue using the Services until the end of the then-current Term.
   • (d) All Fees and other amounts payable by the Customer under this Agreement are exclusive of taxes and similar assessments (except for Customers in Canada). The Customer is responsible for all value-added tax, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, territorial, or local governmental entity on any amounts payable by the Customer hereunder, other than any taxes imposed on the Provider’s income.
9. Confidentiality

During the term of the Agreement, either party may disclose confidential information about its business, products, intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information (collectively, “Confidential Information”). Confidential Information does not include information that is: already publicly available;

2. • (a) already known by the receiving party at the time of disclosure;
   • (b) obtained by the receiving party from a third party on a non-confidential basis; or
   • (c) independently developed by the receiving party. The receiving party agrees not to disclose the disclosing party’s Confidential Information to any third party, except to its employees who have a need to know such information in order for the receiving party to fulfill its obligations under the Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the extent necessary to comply with a court order or other governmental requirement, provided that the disclosing party provides notice to the other party and makes reasonable efforts to obtain a protective order. Upon expiration or termination of the Agreement, the receiving party shall promptly return or destroy all copies of the disclosing party’s Confidential Information. The parties’ obligations of confidentiality with respect to Confidential Information will expire ten (10) years from the date of disclosure, except for trade secrets, which will remain confidential for as long as they remain protected by law.

10. Intellectual Property Ownership; Feedback
    • (a) The Customer acknowledges that the Provider owns all rights, title, and interest in and to the Provider Intellectual Property, including all intellectual property rights, and the applicable third-party providers own all rights, title, and interest, including all intellectual property rights, in and to the Third-Party Products, as between the Provider and the Customer.
    • (b) The Provider acknowledges that the Customer owns all rights, title, and interest, including all intellectual property rights, in and to the Customer Data. The Customer grants to the Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data for the sole purpose of providing the Services to the Customer. The Customer also grants to the Provider a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. Additionally, the Customer grants permission to the Provider to use the customer’s name and logo in Provider’s marketing and promotional materials.
    • (c) If the Customer, its employees or contractors provide any communications or materials to the Provider, including suggestions or recommendations for changes to the Provider Intellectual Property, Provider may use such Feedback without any obligation or limitation between the Parties governing such Feedback. The Customer assigns to the Provider all right, title, and interest in the Feedback..
11. Limited Warranty and Warranty Disclaimer
    • (a) The remedies outlined in Section 12 are the sole remedies available to the Customer and Provider’s sole liability under the limited warranty described in this Section 11(a). Provider strictly disclaims all warranties, in connection with any third-party products.
    • (b) EXCEPT FOR THE LIMITED WARRANTY SPECIFIED IN SECTION 11(a), THE PROVIDER IP IS PROVIDED “AS IS,” AND THE PROVIDER DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. THE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AS WELL AS ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 11(a), THE 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.
12. Indemnification
    • (a) Provider Indemnification.
      • (i) Provider agrees to indemnify, defend and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable legal fees) (“Losses”) arising out of any third-party claim, suit, action, or proceeding (“Third-Party Claim”) alleging that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights. Provider’s indemnification obligation is subject to the condition that Customer notifies Provider in writing of the claim within fourteen (14) days of receipt, cooperates with Provider and allows Provider sole authority to control the defense and settlement of such claim.
      • (ii) In the event that a claim is made or appears likely, Provider may, at its sole discretion, choose to either (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, it may terminate this Agreement, in its entirety or with respect to the affected component or part, immediately upon written notice to Customer.
      • (iii) Provider’s indemnification obligations under this Section 12(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; (C) Customer Data; or (D) Third-Party Products.
    • (b) Customer agrees to indemnify, 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 data, software, hardware, equipment or technology not provided by Provider or authorized by Provider in writing; 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.
    • (c) Sole Remedy: This Section 12 sets forth the sole remedy for Customer and the sole liability and obligation of Provider with respect to any actual, threatened, or alleged claims that the Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party. Provider’s liability under this Section 12 will not exceed the fees paid by the Customer for the Services.
13. Limitations 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, for any consequential, incidental, indirect, exemplary, special, aggravated, or punitive damages; increased costs, diminution in value, or lost business, production, revenues, or profits; loss of goodwill or reputation; use, inability to use, loss, interruption, delay, or recovery of any data, or breach of data or system security; or cost of replacement goods or services, in each case regardless of whether Provider was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable. In no event will Provider’s aggregate liability 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 one times the total amounts paid and amounts accrued but not yet paid to Provider under this Agreement in the one year period preceding the event giving rise to the claim.
14. Term and Termination
    • (a) The initial term of this Agreement begins on the Effective Date specified in the plan purchased by the Customer and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until the time specified in said plan (the “Initial Term”). This Agreement will automatically renew at the end of each Term or Renewal Term, as applicable, unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal no less than sixty (60) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).
    • (b) Termination: In addition to any other express termination right set forth in this Agreement, Provider may terminate this Agreement, effective on written notice to Customer, if Customer:
      • (i) fails to pay any amount when due hereunder, and such failure continues more than five (5) days after Provider’s delivery of written notice thereof; or (ii) breaches any of its obligations under this Agreement.
      • (ii) Either party may terminate this Agreement by providing written notice to the other party, effective immediately, if the other party: (A) becomes insolvent or is generally unable to pay its debts or fails to pay its debts as they become due; (B) files or has filed against it a voluntary or involuntary bankruptcy petition, or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) 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.
    • (c) Upon expiration or earlier termination of this Agreement, Customer shall immediately cease using the Provider’s intellectual property (“IP”), and in addition to Customer’s obligations under Section 6, Customer shall delete, destroy, or return all copies of the Provider’s IP and certify in writing to the Provider that the Provider’s IP has been deleted or destroyed. Expiration or termination of this Agreement will not affect Customer’s obligation to pay all fees that may have become due before such expiration or termination, nor entitle Customer to any refund.
15. Data Security
    • (a) Information Security Obligations. The Provider shall ensure that security measures are in place and that the data privacy and security policies of the Provider are followed in accordance with applicable laws. These policies may be updated from time to time.
    • (b) Data Breach Procedures. If there is a data breach involving Customer’s personal or business information, the Provider will inform the Customer of the breach and provide relevant details, including the time and place of the breach, the scope and type of the data breach, and any potential risks associated with the breach, in compliance with applicable laws.
    • (c) Customer Control and Responsibility. The Customer is responsible for all Customer Data, including content and use; all information, instructions, and materials provided by the Customer or any Authorized User regarding the Services; all Customer Systems; the security and use of Access Credentials by the Customer and its Authorized Users; and all access and use of the Services and Provider Materials by or through Customer Systems or its Authorized Users’ Access Credentials, regardless of whether Customer was aware of such access or use. The Customer must inform the Provider of any known data breaches within their organization that may affect the security of any information held by the Provider on behalf of the Customer. If the Access Credentials of an Authorized User have been phished, stolen, or otherwise compromised, the Customer must inform the Provider promptly to limit and mitigate any further potential data loss that may affect the Customer’s information.
    • (d) Access and Security. The Customer shall implement appropriate physical, administrative, and technical controls, screening and security procedures, and other safeguards necessary to securely manage the distribution and use of all Access Credentials, prevent unauthorized access or use of the Services, and control the content and use of Customer Data, including the uploading or provision of Customer Data for processing by the Services.
16. Miscellaneous
    • (a) All notices and other communications hereunder (each, a “Notice”) must be in writing (email is sufficient) . Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments contemplated hereunder), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, epidemic, pandemic, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo (each a “Force Majeure Event”).
    • (b) Amendments and Modifications. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
    • (c) Severability. If any provision of this Agreement is found to be invalid, illegal, or unenforceable in any jurisdiction, such finding will not affect the validity, legality, or enforceability of any other provision of this Agreement, nor will it invalidate or render unenforceable such provision in any other jurisdiction.
    • (d) Governing Law. This Agreement and all related documents, including exhibits, are governed by the laws of the State of Texas and the federal laws of the United States, without regard to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Texas
    • (e) Choice of Forum. Any legal action or proceeding arising from or related to this Agreement, including all statements of work, exhibits, schedules, attachments, and appendices attached to this Agreement, the services provided under this Agreement, and all contemplated transactions, shall be brought in the courts of the State of Texas and each Party submits to the exclusive jurisdiction of such courts. Service of process by mail to each Party’s address will be effective for any legal action or proceeding.
    • (f) Assignment. The customer may not assign or delegate any of its rights or obligations under this Agreement without the prior written consent of the Provider. Any attempted assignment or delegation without consent will be null and void. This Agreement is binding upon and inures to the benefit of the Parties and their respective successors and assigns.
    • (g) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.