Terms of Service
Effective as of 10 November 2022. Last Updated: 20 November 2024
BY CLICKING THE “ACCEPT” BUTTON OR USING THE PROMISE.XYZ, INC. (“COMPANY”) SERVICE IDENTIFIED IN THE ORDER FORM THAT REFERENCES THIS TERMS OF SERVICE AGREEMENT (“AGREEMENT”), THE INDIVIDUAL OR ENTITY OBTAINING THE RIGHT TO ACCESS SUCH SERVICES (“CUSTOMER”) IS AGREEING TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CUSTOMER MUST NOT, AND MAY NOT, ACCESS OR USE THE COMPANY SOLUTION OR SERVICE.
1. DEFINITIONS. Capitalized terms will have the meanings set forth in this Section 1, or in the section in which they are first used.
1.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Company Solution.
1.2 “Authorized User” means each of Customer’s employees, agents, and independent contractors who are authorized to access the Company Solution pursuant to Customer’s rights under this Agreement.
1.3 “Company Solution” means a Company software-as-a-service application identified in any Order Form that allows Authorized Users to access certain features and functions through a web interface.
1.4 “Connected Account” means any third-party platform connected to, or integrated with, the Services by or on behalf of Customer.
1.5 “Connected Account Data” means any data collected from, or provided by, any Connected Account.
1.6 “Customer Content” means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Services, including without limitation Customer Data.
1.7 “Customer Data” means all data stored by Customer in, or transmitted by Customer by or through, the Service, and data contained in Service-generated documents.
1.8 “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.9 “Order Form” means a physical or electronic order form, which may include the pricing page on Company’s website, identifying the services to be made available by Company pursuant to this Agreement.
1.10 “Performance Data” means any log files, metadata, telemetry data and other technical performance data automatically generated by the Service relating to the use, performance, efficacy, reliability and/or accuracy of the Company Solution, which does not contain any personally identifiable information or Customer Data.
1.11 “Services” means any services provided by Company to Customer under this Agreement as set forth in an Order Form, including, but not limited to, provision of the Company Solution.
2. PROVISION OF SERVICES
2.1 Access. Subject to Customer’s payment of the fees set forth in the Order Form (“Fees”), Company will provide Customer with access to the Company Solution in accordance with the terms of the Order Form. On or as soon as reasonably practicable after the date the parties enter into an Order Form, Company will provide to Customer the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Customer and its Authorized Users to access the Company Solution in accordance with the Access Protocols. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Company Solution, and notify Company promptly of any such unauthorized use known to Customer. In addition to its other rights under this Section 2.1, Company may suspend or terminate Customer’s access to the Company Solution upon written notice in order to: (a) prevent damage to or degradation of, the Company Solution caused by Customer; or (b) comply with any law, regulation, court order, or other governmental request or order which requires immediate action. If suspended, Company will promptly restore use to Customer as soon as the event giving rise to the suspension has been resolved to Company’s satisfaction.
2.2 Support Services. Subject to the terms and conditions of this Agreement and the applicable Order Form, Company will exercise commercially reasonable efforts to (a) provide support for the use of the Company Solution to Customer, and (b) keep the Company Solution operational and available to Customer, in each case in accordance with its standard policies and procedures. We may modify the Platform and our Website from time to time with or without notice by adding or deleting features to improve the user experience.
2.3 Hosting. Company will, at its own expense, provide for the hosting of the Company Solution, provided that nothing herein will be construed to require Company to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access the Company Solution from the Internet.
2.4 Free Credits. In the event Company provides Customer, free of charge, with credits against subsequent payment obligations (“Free Credits”), Customer’s use of the Company Solution will draw down on such Free Credits first, before any subsequent payment obligations become due. Any Free Credits provided by Company during any particular month will not roll over into any subsequent month(s). Any use of the Company Solution by Customer on a free of charge basis (“Unpaid Basis”), including pursuant to Free Credits, will be on an “as is” and “as available” basis. NOTWITHSTANDING ANYTHING CONTAINED HEREIN, THE COMPANY WILL HAVE NO WARRANTY, INDEMNITY, OR SUPPORT OBLIGATIONS WITH RESPECT TO ANY USE OF THE COMPANY SOLUTION ON AN UNPAID BASIS.
3. COMPANY SOLUTION AND COMPANY INTELLECTUAL PROPERTY
3.1 License Grant. Subject to the terms and conditions of this Agreement, Company grants to Customer a non-exclusive, non-transferable (except as permitted under Section 11.6) license, solely for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in the Order Form, to access and use the Company Solution. Customer may permit any Authorized Users to access and use the features and functions of the Company Solution as contemplated by this Agreement.
3.2 Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Company Solution, except as expressly allowed herein; (b) modify, adapt, alter or translate the Company Solution; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Company Solution for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Company Solution, except as permitted by law; (e) interfere in any manner with the operation of the Company Solution or the hardware and network used to operate the Company Solution; (f) modify, copy or make derivative works based on any part of the Company Solution; (g) access or use the Company Solution to build a similar or competitive product or service; (h) attempt to access the Company Solution through any unapproved interface; or (i) otherwise use the Company Solution in any manner that exceeds the scope of use permitted under Section 3.1 or in a manner inconsistent with applicable law or this Agreement.
3.3 Ownership. The Company Solution and all worldwide Intellectual Property Rights therein, are the exclusive property of Company and its suppliers. All rights in and to the Company Solution not expressly granted to Customer in this Agreement are reserved by Company and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Company Solution or any part thereof.
3.4 Connected Accounts. In order to access many of the features and functions of the Company Solution, Customer may need to link its Connected Accounts to the Company Solution. By granting the Company access to any Connected Account, (a) Customer represents and warrants that it is entitled to disclose any log-in information provided by Customer in connection therewith and/or to grant Company access to such Connected Accounts, (b) Customer represents and warrants that it is in good standing with respect to such Connected Accounts, and (c) Customer acknowledges that the Company may access Connected Account Data so that it may be used in accordance with the terms of this Agreement. Customer further acknowledges and agrees that each Connected Account, including access to and use thereof and uptimes related thereto, is solely determined by the applicable provider of the relevant Connected Account. Company will have no liability for any unavailability of any Connected Account, or any third-party provider’s decision to discontinue, suspend or terminate any Connected Account.
4. FEES AND EXPENSES; PAYMENTS
4.1 Fees. In consideration for the access rights granted to Customer and the Services performed by Company under this Agreement, Customer will pay to Company the Fees pursuant to the terms set forth on the Order Form. Except as otherwise provided in the Order Form, all Fees will be paid by ACH/Debit transfer. In the event payment is made by credit card, Company will accept and process such Fees (including renewals) from Customer based on the then-current credit card information provided by Customer to Company. Customer’s credit card agreement governs its use of the designated credit card or account. By providing Company with credit card information, Customer agrees that Company is authorized to invoice and charge Customer’s account for all Fees due and payable to Company and that no additional notice or consent is required. If Customer’s credit card issuer rejects any amount charged on Customer’s credit card, then Company will notify Customer thereof and Customer will pay the Fees by check or wire transfer within thirty (30) days of the date of the notice. Company reserves the right to modify the Fees payable hereunder upon written notice to Customer at least ninety (90) days prior to the end of the then-current annual term. Company will be reimbursed only for expenses that are expressly provided for in an Order Form or that have been approved in advance in writing by Customer, provided Company has furnished such documentation for authorized expenses as Customer may reasonably request. Company reserves the right (in addition to any other rights or remedies Company may have) to discontinue the Company Solution and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing, payment and contact information at all times. Except as expressly set forth herein or in an Order Form, all Fees are fully earned and non-refundable when due. Payments will be made without right of set-off or chargeback. All dollar amounts referred to in this Agreement are in United States Dollars.
4.2 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Company’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the Company Solution to Customer. Customer will make all payments of Fees to Company free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Company will be Customer’s sole responsibility, and Customer will provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as the Company may reasonably request, to establish that such taxes have been paid.
4.3 Interest. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
5. CUSTOMER CONTENT, PROHIBITED CONTENT AND RESPONSIBILITIES
5.1 License; Ownership; Data Ingestion. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third party licenses, consents and permissions needed for Company to use the Customer Content to provide the Services and to exercise the licenses granted herein. Customer grants Company a non-exclusive, worldwide, royalty-free and fully paid license during the Term to use the Customer Content as necessary for purposes of providing the Services to Customer. For clarity, Company owns all Performance Data and Company may freely and perpetually use Performance Data, during and after the term hereof, for commercial uses including e.g., developing aggregate statistical analyses, improving the Company’s products and services, and sharing with third parties. Customer also hereby grants to Company a non-exclusive, sub-licensable, royalty-free, worldwide, perpetual, irrevocable and fully transferable right and license to: use or incorporate into the Service any suggestions, ideas, feedback, recommendations or other information provided by Customer or its Authorized Users with respect to the Service or Company Solution (“Feedback”) and to reproduce, distribute, modify, create derivative works of, publicly perform and display, and sub-license Feedback. Performance Data and Feedback are not Confidential Information of Customer. The Customer Content, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. All rights in and to the Customer Content not expressly granted to Company in this Agreement are reserved by Customer. Without limiting the generality of Section 5.1, Customer will facilitate and allow Company’s access to Customer Data in the manner(s) necessary for the effective ingestion of the Customer Data into the Company Solution as determined by Company.
5.2 Customer Content Warranty. Customer represents and warrants that any Customer Content will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Company’s system or data; and (e) otherwise violate the rights of a third party. Company is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer agrees that any use of the Company Solution contrary to or in violation of the representations and warranties of Customer in this Section 5.2 constitutes unauthorized and improper use of the Company Solution.
5.3 Prohibited Content. Customer acknowledges and agrees that it will not upload, post, transmit or disclose to Company or the Company Solution, any Customer Data that constitutes cardholder data, including any primary account numbers, credit or debit card numbers, personal identification number (PIN), or service codes (e.g. CVV, CSC, CAV and PAN CVC), social security numbers, driver’s license number, financial account numbers or access codes, consumer report information, employer issued system credentials, DNA profiles, individually identifiable biometric data, health information, protected health information (as defined by the Health Insurance Portability and Accountability Act of 1996, as amended), patient information, or any information related to any individual’s race, ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health or sexual orientation, or employee compensation, performance ratings or disciplinary records, without the prior written consent of Company. In the event Company agrees in writing to process any protected health information on behalf of Customer, the Company and Customer will enter into the Company’s standard form of Business Associate Agreement.
5.4 Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order to access the Company Solution. Customer will have the ability to export Customer Content out of the Company Solution and is encouraged to make its own back-ups of the Customer Content. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
5.5 Data Privacy Addendum. To the extent Customer Content includes Personal Information derived from California residents or consumers, the terms of Company's CCPA Addendum shall apply to such Personal Information and be incorporated into the Agreement.
5.6 Privacy Policy. Customer acknowledges that the Company may collect and process personal information in accordance with its privacy policy available at: [INSERT], as may be amended by Company from time to time.
6. DISCLAIMERS
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS,” AND COMPANY MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT ANY ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE COMPANY SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE.
7. LIMITATION OF LIABILITY
7.1 Types of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
7.2 Amount of Damages. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, INCLUDING THE PERFORMANCE OF COMPANY’S INDEMNIFICATION OBLIGATIONS, WILL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL COMPANY’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
7.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 8 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
8. CONFIDENTIALITY
8.1 Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving party”) knows or should have reasonably known is the confidential or proprietary information of the Disclosing party. The Services, and all enhancements and improvements thereto, will be considered Confidential Information of Company.
8.2 Protection of Confidential Information. The Receiving party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing party, except as expressly permitted under this Agreement. The Receiving party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Company). In addition, the Receiving party will protect the Disclosing party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing party’s request or upon termination or expiration of this Agreement, the Receiving party will return to the Disclosing party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving party does not have a continuing right to use under this Agreement, and the Receiving party will, upon request, certify to the Disclosing party its compliance with this sentence.
8.3 Exceptions. The confidentiality obligations set forth in Section 8.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving party; (b) is lawfully provided to the Receiving party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving party who had no access to the Confidential Information. In addition, the Receiving party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving party promptly notifies the Disclosing party in writing of such required disclosure and cooperates with the Disclosing party if the Disclosing party seeks an appropriate protective order.
9. INDENTIFICATION
9.1 By Company. Company will defend at its expense any suit brought against Customer, and will pay any settlement Company makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Company Solution infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Company Solution becomes, or in Company’s opinion is likely to become, the subject of a claim of infringement, Company may, at Company’s option: (a) procure for Customer the right to continue using the Company Solution; (b) replace the Company Solution with non-infringing software or services which do not materially impair the functionality of the Company Solution; (c) modify the Company Solution so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Company Solution. Notwithstanding the foregoing, Company will have no obligation under this Section 9.1 or otherwise with respect to any infringement claim based upon (i) any use of the Company Solution not in accordance with this Agreement; (ii) any use of the Company Solution in combination with other products, equipment, software or data not supplied by Company; or (iii) any modification of the Company Solution by any person other than Company or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This Section 9.1 states the sole and exclusive remedy of Customer and the entire liability of Company, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
9.2 By Customer. Customer will defend at its expense any suit brought against Company, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, or (b) Customer’s breach or alleged breach of Sections 5.2 or 5.3. This Section 9.2 states the sole and exclusive remedy of Company and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
9.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
10. TERM AND TERMINATION
10.1 Term. This Agreement will begin on the date Company accepts Customer’s initial Order Form and continue in full force and effect as long as any Order Form remains in effect, unless earlier terminated in accordance with the Agreement (the “Term”). Unless otherwise stated in the applicable Order Form, the term of an Order Form will begin on the effective date of the Order Form and continue in full force and effect for one (1) calendar month, unless earlier terminated in accordance with the Agreement. Thereafter, the Order Form will automatically renew for additional terms of one (1) calendar month unless either party gives written notice of non-renewal to the other party prior to the expiration of the then-current term.
10.2 Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
10.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in Section 9; and (c) any amounts owed to Company under this Agreement will become immediately due and payable. Sections 1, 3.2, 3.3, 4, 7, 8, 9, 10.3, and 11 will survive expiration or termination of this Agreement for any reason.
11. MISCELLANEOUS
11.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Subject to Section 11.2, Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for Los Angeles County, California for any lawsuit filed there against Customer by Company arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
11.2 Dispute Resolution; Mediation; Arbitration. In the event of any dispute hereunder, the parties shall engage in informal, good faith discussions to resolve it. If the parties are unable to resolve the dispute, then the parties agree to comply with the following procedures. The dispute shall first be submitted to mediation on an expedited basis in Seattle, Washington, administered by JAMS, or its successor, in accordance with the JAMS rules and procedures then in effect. Either party may commence mediation by providing to JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested, with the expectation that the first mediation session shall occur within forty-five (45) days of such written request. The parties will cooperate in selecting an appropriate neutral mediator from the JAMS panel of neutrals and in scheduling the mediation proceedings. If the parties are unable to select the mediator within ten (10) business days after receipt of the mediation notice by JAMS, then JAMS shall designate the mediator. The parties will share equally in the costs of the mediator and related JAMS administrative costs, and pay in advance the estimated reasonable fees and costs of the mediation, as may be specified in advance by the mediator. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator, are confidential, privileged and inadmissible for any purpose, including impeachment, in any reference, arbitration, litigation or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Either party may seek equitable relief in the Superior Court of Los Angeles County prior to the mediation to preserve the status quo pending the completion of that process. If necessary, any party may file a motion in the Superior Court of Los Angeles County to compel the other party to participate in the mediation and the prevailing party shall be awarded its costs and expenses, including reasonable attorneys’ fees in connection with such motion. If the dispute is not resolved within ten (10) business days after the first mediation session, either party may give written notice to JAMS and the other party that the mediation is terminated and may submit the dispute to final and binding arbitration in Los Angeles County, California, administered by JAMS, or its successor, in accordance with the rules and procedures of JAMS (including JAMS Comprehensive Rules) then in effect. A party may commence the arbitration process called for in this Agreement by filing a written demand for arbitration with JAMS, with a copy to the other party. Any and all disputes that are so submitted to arbitration shall be decided by three (3) neutral and appropriate arbitrators. Each party shall select one (1) arbitrator and those party-selected arbitrators shall jointly select the third arbitrator, who shall act as Chairman of the arbitral tribunal. If the party-selected arbitrators are unable to select the third arbitrator, JAMS shall designate the third arbitrator. The parties will cooperate in selecting such arbitrators and in scheduling the arbitration proceedings. The parties will share equally in the administrative costs and arbitrator’s fees associated with the arbitration; provided, however, that each party will bear its own attorneys’ fees and costs associated with the arbitration. The arbitrator shall apply California law without reference to conflicts of laws principles. Any award issued as a result of such arbitration shall be final and binding between the parties thereto and shall be enforceable by any court having jurisdiction over the party against whom enforcement is sought. The parties expressly acknowledge that by entering into this Agreement, they each are waiving their respective rights to have any Dispute between the parties hereto adjudicated by a court or by a jury.
11.3 Government End-Users. The Company Solution is deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Company Solution by the U.S. Government shall be governed solely by the terms of this Agreement. This product was developed fully at private expense. All other use is prohibited.
11.4 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
11.5 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.6 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement to an affiliate or in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
11.7 Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its performance of its obligations and/or exercise of the rights granted to it hereunder.
11.8 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
11.9 Independent Contractors. Customer’s relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Company.
11.10 Notices. All notices required or permitted under this agreement must be delivered in writing, if to Company, by emailing legal@sdf.com, and if to Customer, by emailing the Customer Point of Contact email address last made available by Customer, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed in the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change
to the other party.
11.11 Precedence. To the extent that a conflict arises between the terms and conditions of an Order Form and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form, expressly states that it supersedes specific language in the Agreement.
11.12 Modifications of this Agreement. Company may modify this Agreement in its sole discretion, at any time. When changes are made, Company will make a new copy of the Agreement available on its website and update the Last Updated date above. Company will also email Customer at the last email address Customer provided to Company. Unless otherwise specified in Company’s notice, any changes will become effective within thirty (30) days of Company’s provision of notice of such updates. Company may require Customer to provide consent to the updated Agreement in a specified manner before further use of the Company Service is permitted.
11.13 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters.
