Master Services Agreement
Version Date: October 11, 2021
This Flowtrics Master Services Agreement (“MSA”) is made between Flowtrics, Inc., a Delaware corporation, (“Flowtrics”) and the Customer identified on the Services Agreement (“Customer”), together referred to as the “Parties” and each individually as a “Party.” Specific services terms, product details, and any applicable license and/or subscription terms will be set forth herein MSA (https://flowtrics.com/master-services-agreement/), and Service Agreement(s), each of which become binding on the Parties and are incorporated into this MSA upon execution of a Service Agreement. Each Service Agreement is governed by and incorporates the following documents in effect as of the date of the last update of such documents, collectively referred to as the “Agreement” that consists of:
- the Services Agreement and/or Statement of Work;
- any attachments and/or appendix(ices) to a Service Agreement;
- this MSA.
MSA Version: October 12, 2021.
Each Party agrees that the following terms and conditions govern each Services Agreement that references this MSA:
TABLE OF CONTENTS
- Usage and Access Rights
- Security and Customer Data
- Payment of Fees
- Term and Termination
- Warranties and Disclaimers
- Third-Party Claims
- Limitation of Liability
- Governing Law and Venue
“Account” means a unique account established by the Customer to enable its Authorized Users to access and use a Flowtrics Service.
“Account Administrator” is an Authorized User who is assigned and expressly authorized by Customer as its agent to manage Customer’s Account, including, without limitation, to configure administration settings, assign access and use authorizations, request different or additional services, provide usage and performance reports, manage templates, execute approved campaigns and events, assist in third-party product integrations, and to receive privacy disclosures. The customer may appoint an employee or a third-party business partner or contractor to act as its Account Administrator and may change its designation at any time through its Account.
“Affiliate” of a Party means any entity that the Party directly or indirectly owns or controls more than fifty percent (50%) of the voting interests of the subject entity. Any legal entity will be considered a Party’s Affiliate as long as that interest is maintained.
“Authorized User” means one individual natural person, whether an employee, business partner, contractor, or agent of Customer or its Affiliates who is registered by Customer to use the Flowtrics Services. An Authorized User must be identified by a unique email address and user name, and two or more persons may not use the Flowtrics Services as the same Authorized User. If the Authorized User is not an employee of Customer, use of the Flowtrics Services will be allowed only if the user is under confidentiality obligations with Customer at least as restrictive as those in this Agreement and is accessing or using the Flowtrics Services solely to support Customer’s and/or Customer Affiliates’ internal business purposes.
“Confidential Information” means (a) for Flowtrics and its Affiliates, the Flowtrics Services and Documentation; (b) for Customer and its Affiliates, Customer Data; (c) any other information of a Party or its Affiliates that is disclosed in writing or orally and is designated as confidential or proprietary at the time of disclosure to the Party, including its Affiliates, receiving Confidential Information (“Recipient”) (and, in the case of oral disclosures, summarized in writing and delivered to the recipient within thirty (30) days of the initial disclosure), or that due to the nature of the information the Recipient would clearly understand it to be confidential information of the disclosing Party; and (d) the specific terms and conditions of this Agreement between the Parties. Confidential Information does not include any information that: (i) was or becomes generally known to the public through no fault or breach of this Agreement by the Recipient; (ii) was rightfully in the Recipient’s possession at the time of disclosure without restriction on use or disclosure; (iii) was independently developed by the Recipient without use of or reference to the disclosing Party’s Confidential Information; or (iv) was rightfully obtained by the Recipient from a third party not under a duty of confidentiality and without restriction on use or disclosure.
“Customer Data” means any content, eDocuments, materials, data, and information that Customer or its Authorized Users enter into the Flowtrics Cloud Services, including, but not limited to, any Customer personal data and information contained in eDocuments. Customer Data does not include any component of the Flowtrics Cloud Services or material provided by or on behalf of Flowtrics.
“Documentation” means Flowtrics’s then-current technical and functional documentation for the Flowtrics Services as made generally available by Flowtrics.
“Flowtrics Cloud Service(s)” means any subscription-based, hosted solution that is supported and operated on demand and provided by Flowtrics under this Agreement.
“Flowtrics Service(s)” means the services identified on the Services Agreement and obtained by Customer pursuant to this Agreement, including but not limited to Flowtrics Cloud Services and Professional Services.
“eDocument” refers to a contract, notice, disclosure, or other record or document deposited into the Flowtrics Cloud Service by Customer for processing.
“Indemnified Party(ies)” means, as the case may be, the Party (whether Flowtrics or Customer) being indemnified for a third-party claim, including its employees, directors, agents, and representatives.
“Indemnifying Party(ies)” means the Party (whether Flowtrics or Customer) that is providing indemnification under Section 9 (Third-Party Claims).
“Services Agreement” means the Services Agreement provided by Flowtrics that sets forth the pricing and options of the Flowtrics Services selected by Customer.
“Order Start Date” means the start date of the applicable Services Agreement as defined in that Services Agreement.
“Professional Services” means any integration, consulting, architecture, training, transition, configuration, administration, and similar ancillary Flowtrics Services that are set forth in an Services Agreement or Statement of Work (“SOW”).
“Service Schedule” means the service-specific terms and conditions applicable to the Flowtrics Service(s).
- USAGE AND ACCESS RIGHTS
2.1 Right to Use. Flowtrics will provide the Flowtrics Services to Customer as set forth in the Services Agreement. Subject to the terms and conditions of this Agreement, Flowtrics grants to Customer a worldwide, limited, non-exclusive, non-transferrable right and license during the Term, solely for its and its Affiliates’ internal business purposes, and in accordance with the Documentation, to: (a) use the Flowtrics Services; (b) implement, configure, and through its Account Administrator, permit its Authorized Users to access and use the Flowtrics Services; and (c) access and use the Documentation. Customer will ensure that its Affiliates and all Authorized Users using the Flowtrics Services under its Account comply with all of Customer’s obligations under this Agreement, and Customer is responsible for their acts and omissions relating to the Agreement as though they were those of Customer.
2.2 Restrictions. Customer shall not, and shall not permit its Authorized Users or others under its control to, do the following with respect to the Flowtrics Services:
(a) use the Flowtrics Services, or allow access to it, in a manner that circumvents contractual usage restrictions or that exceeds Customer’s authorized use or usage metrics set forth in this Agreement, including the applicable Services Agreement or SOW;
(b) license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share or otherwise make any portion of the Flowtrics Services or Documentation available for access by third parties except as otherwise expressly provided in this Agreement;
(c) access or use the Flowtrics Services or Documentation for the purpose of: (i) developing or operating products or services intended to be offered to third parties in competition with the Flowtrics Services, or (ii) allowing access to its Account by a direct competitor of Flowtrics;
(d) reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets from or about any of the Flowtrics Services or technologies, unless and then only to the extent expressly permitted by applicable law, without consent;
(e) use the Flowtrics Services or Documentation in a way that: (i) violates or infringes upon the rights of a third party, including those pertaining to: contract, intellectual property, privacy, or publicity; or (ii) effects or facilitates the storage or transmission of libelous, tortious, or otherwise unlawful material including, but not limited to, material that is harassing, threatening, or obscene;
(f) fail to use commercially reasonable efforts to not interfere with or disrupt the integrity, operation, or performance of the Flowtrics Services or interfere with the use or enjoyment of it by others;
(g) use the Flowtrics Services to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs, or circumvent or disclose the user authentication or security of the Flowtrics Cloud Service or any host, network, or account related thereto or use any aspect of the Flowtrics Services components other than those specifically identified in an Services Agreement or SOW, even if technically possible; or
2.3 Suspension of Access. Flowtrics may suspend any use of the Flowtrics Services, or remove or disable any Account or content that Flowtrics reasonably and in good faith believes violates this Agreement. Flowtrics will use commercially reasonable efforts to notify Customer prior to any such suspension or disablement, unless Flowtrics reasonably believes that: (a) it is prohibited from doing so under applicable law or under legal process (such as court or government administrative agency processes, orders, mandates, and the like); or (b) it is necessary to delay notice in order to prevent imminent harm to the Flowtrics Services or a third party. Under circumstances where notice is delayed, Flowtrics will provide notice if and when the related restrictions in the previous sentence no longer apply.
2.4 Trial Usage. If Customer registers for a free trial, promotional offer, or other type of limited offer for use of the Flowtrics Services (“Free Trial”), Customer may be presented with additional terms and conditions when registering for a Free Trial, and any such additional terms and conditions are hereby incorporated into this Agreement by reference as a Service Schedule and are legally binding upon the Parties. ANY DATA THAT CUSTOMER ENTERS INTO THE Flowtrics SERVICES, AND ANY CONFIGURATIONS MADE BY OR FOR CUSTOMER, DURING THE FREE TRIAL WILL BE PERMANENTLY LOST AT THE END OF THE TRIAL PERIOD UNLESS CUSTOMER: (a) PURCHASES A SUBSCRIPTION TO THE SAME Flowtrics SERVICES AS THOSE COVERED BY THE TRIAL; (b) PURCHASES AN UPGRADED VERSION OF THE FLOWTRICS SERVICES; OR (c) EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD. CUSTOMER CANNOT TRANSFER DATA ENTERED OR CONFIGURATIONS MADE DURING THE FREE TRIAL TO A FLOWTRICS SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, AND IN SUCH SITUATION ANY CUSTOMER DATA OR CUSTOMIZATION WILL BE PERMANENTLY LOST. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION SECTION 8 (WARRANTIES AND DISCLAIMERS), SECTION 9 (THIRD-PARTY CLAIMS), AND SECTION 10 (LIMITATION OF LIABILITY), FREE TRIALS ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, (y) WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY; AND (z) FLOWTRIC’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO CUSTOMER’S USE OF THE FREE TRIAL IS $100.
3.1 Customer Data. Customer Data processed using the Flowtrics Services is and will remain, as between Customer and Flowtrics, owned by Customer. Customer hereby grants Flowtrics the right to process, transmit, store or disclose the Customer Data in order to provide the Flowtrics Services to Customer, subject to the terms of Section 11.2 (Required Disclosure) below.
3.2 Flowtrics Services. Flowtrics, its Affiliates, or its licensors own all right, title, and interest in and to any and all copyrights, trademark rights, patent rights, database rights, and other intellectual property or other rights in and to the Flowtrics Services and Documentation, any improvements, design contributions, or derivative works thereto, and any knowledge or processes related thereto and/or provided hereunder. Unless otherwise specified in the applicable SOW, all deliverables provided by or for Flowtrics in the performance of Professional Services, excluding Customer Data and Customer Confidential Information, are owned by Flowtrics and constitute part of the Flowtrics Service(s) under this Agreement.
3.3 Third-Party Services and Materials. Customer may choose to obtain products, services or materials that are provided or supported by third parties (“Third-Party Services and Materials”) for use with Flowtrics Services. Flowtrics assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any Third-Party Services and Materials that are provided pursuant to the terms of the applicable third-party license or separate agreement between the licensor of the Third-Party Services and Customer. Flowtrics does not represent and/or warrant in any manner that Third-Party Services and Materials are accurate, current, or comply with laws, rules and/or regulations of, or are otherwise valid and enforceable in or appropriate for, the jurisdiction in which the Third-Party Services and Materials are used or for Customer’s purposes.
3.4 Feedback. Flowtrics encourages Customer to provide suggestions, proposals, ideas, recommendations, or other feedback regarding improvements to Flowtrics Services and related resources (“Feedback”). To the extent Customer provides Feedback, Customer grants to Flowtrics a royalty-free, fully paid, sub-licensable, transferable (notwithstanding Section 13.2 (Assignability)), non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import, and otherwise exploit Feedback (including by incorporation of such feedback into the Flowtrics Services) without restriction; provided that such Feedback does not identify Customer, its Affiliates, or Authorized Users, or include any Customer Data without Customer’s prior written consent.
- SECURITY AND CUSTOMER DATA
4.1 Security. Flowtrics will use commercially reasonable industry standard security technologies in providing the Flowtrics Services. Flowtrics has implemented and will maintain appropriate technical and organizational measures to preserve the security, integrity, and confidentiality of Customer Data and personal data and to protect against unauthorized or unlawful disclosure or corruption of or access to personal data. Additional security obligations, if any, shall be set forth or referenced in the applicable Service Schedule, attachment and/or appendix.
4.2 Customer Data. Customer is responsible for Customer Data (including Customer personal data) as entered into, supplied or used by Customer and its Authorized Users in the Flowtrics Services. Further, Customer is solely responsible for determining the suitability of the Flowtrics Services for Customer’s business and complying with any applicable data privacy and protection regulations, laws or conventions applicable to Customer Data and Customer’s use of the Flowtrics Services. Customer grants to Flowtrics the non-exclusive right to process Customer Data (including personal data) in accordance with the applicable data protection provisions and the technical and organizational measures referred to in an applicable Service Schedule, attachment and/or appendix, for the sole purpose of and only to the extent necessary for Flowtrics: (a) to provide the Flowtrics Services; (b) to verify Customer’s compliance with the restrictions set forth in Section 2.2 (Restrictions) if Flowtrics has a reasonable belief of Customer’s non-compliance; and (c) as otherwise set forth in this Agreement.
4.3 Use of Aggregate Data. Customer agrees that Flowtrics may collect, use, and disclose quantitative data derived from the use of the Flowtrics Services for its business purposes, including industry analysis, benchmarking, analytics, and marketing. All data collected, used, and disclosed will be in aggregate and deidentified form only and will not identify Customer, its Authorized Users, Customer Data, or any third parties utilizing the Flowtrics Services.
- PAYMENT OF FEES
5.1 Fees. Except as expressly set forth in the applicable Services Agreement or SOW, Customer will pay all fees set forth in the Services Agreement or SOW in accordance with the following: (a) Flowtrics Services fees are invoiced annually in advance; (b) the first invoice will coincide with the Service Start Date or effective date of a SOW; (c) payment will be due within thirty (30) days from the date of the invoice; and (d) all amounts will be denominated in U.S. dollars. Upon execution by Customer and Flowtrics, each Services Agreement is non-cancellable and non-refundable except as provided in this Agreement, and the Term as set forth in the Services Agreement for Flowtrics Cloud Services is a continuous and non-divisible commitment for the full duration of the Term regardless of any invoice schedule. Customer may withhold from payment any charge or amount disputed by Customer in good faith pending resolution of such dispute, provided that Customer: (i) notifies Flowtrics of the dispute prior to the date such payment is due, specifying in such notice (A) the amount in dispute, and (B) the reason for the dispute set out in sufficient detail to facilitate investigation by Flowtrics and resolution by the parties; (ii) makes timely payment of all undisputed charges and amounts; (iii) works diligently with Flowtrics to resolve the dispute promptly; and (iv) pays all amounts that are determined to be payable by resolution of the dispute (by adversarial proceedings, agreement or otherwise) within ten (10) days following such resolution.
5.2 Purchase Orders. If Customer issues a purchase order, then it shall be for the full amount set forth in the applicable Services Agreement or SOW, and Flowtrics hereby rejects any additional or conflicting terms appearing in a purchase order or any other ordering materials submitted by Customer, and conditions assent solely based on the terms and conditions of this Agreement as offered by Flowtrics. Upon request, Flowtrics shall reference the purchase order number on its invoices, provided, however, that Customer acknowledges that it is Customer’s responsibility to provide the corresponding purchase order information (including a purchase order number) to Flowtrics upon the signing of any Services Agreement. Customer agrees that a failure to provide Flowtrics with the corresponding purchase order shall not relieve Customer of its obligations to provide payment to Flowtrics pursuant to Section 5.1 (Fees) above.
5.3 Offsets; Late Charges; Attorneys’ Fees. If Flowtrics owes any amounts to Customer that are not derived from this Agreement, such amounts will not be withheld or offset against any invoice issued under this Agreement. Flowtrics may assess late charges equal to the lesser of one and one-half percent (1.5%) of the unpaid balance per month or the highest rate permitted by applicable law. Customer will be responsible for any reasonable attorneys’ fees, costs, and expenses incurred by Flowtrics to collect any amounts that are not paid when due. If Customer fails to timely pay any amounts due under this Agreement, then without limitation of any of its other rights or remedies, Flowtrics may suspend performance of those Flowtrics Services until Flowtrics receives all past due amounts from Customer.
6.1 Tax Responsibility. All payments required by this Agreement are stated exclusive of all taxes, duties, levies, imposts, fines or similar governmental assessments, including sales and use taxes, value-added taxes (“VAT”), goods and services taxes (“GST”), excise, business, service, and similar transactional taxes imposed by any jurisdiction and the interest and penalties thereon (collectively, “Taxes”). Customer shall be responsible for and bear Taxes associated with its purchase of, payment for, access to or use of the Flowtrics Services. Taxes shall not be deducted from the payments to Flowtrics, except as required by law, in which case Customer shall increase the amount payable as necessary so that after making all required deductions and withholdings, Flowtrics receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made. If Customer claims tax exempt status for amounts due under this Agreement, it shall provide Flowtrics with a valid tax exemption certificate (authorized by the applicable governmental authority) to avoid application of Taxes to Customer’s invoice. Each Party is responsible for and shall bear Taxes imposed on its net income. Customer hereby confirms that Flowtrics can rely on the ship-to name and address set forth in the Services Agreement(s) or SOW Customer places directly with Flowtrics as being the place of supply for Tax purposes. The Parties’ obligations under this Section 6.1 (Tax Responsibility) shall survive the termination or expiration of this Agreement.
6.2 Invoicing Taxes. If Flowtrics is required to invoice or collect Taxes associated with Customer’s purchase of, payment for, access to or use of the Flowtrics Services, Flowtrics will issue an invoice to Customer including the amount of those Taxes, itemized where required by law. If applicable, Customer shall provide to Flowtrics its VAT, GST or similar tax identification number(s) on the Services Agreement or SOW. Customer shall use the ordered Flowtrics Services for Customer’s business use in the foregoing location(s) in accordance with the provided VAT or GST identification number(s).
- TERM AND TERMINATION
7.1 Term. The term a Services Agreement and any associated Service Schedule(s) is the period of time, including all renewals thereto, that begins on the Order Start Date and, unless terminated sooner as provided herein, will continue until the Order End Date, both dates as specified on the Services Agreement (the “Term”). In the case of a SOW for Professional Services, if no end date is specified in the SOW, then the SOW shall expire upon completion of Professional Services or early termination as permitted by this Agreement. The term of this MSA and this Agreement shall continue as long as a Services Agreement or SOW referencing or incorporated into this MSA remains valid and in effect. Prior to the Order Start Date, Flowtrics may, upon mutual agreement, start providing Professional Services and/or provide Customer access to the Flowtrics Services, which will be governed by this Agreement. Termination or expiration of any Services Agreement or SOW shall leave other Services Agreements or SOWs unaffected.
7.2 Termination for Breach; Termination for Insolvency. If either Party commits a material breach or default in the performance of any of its obligations under this Agreement, then the other Party may terminate this Agreement in its entirety by giving the defaulting Party written notice of termination, unless the material breach or default in performance is cured within thirty (30) days after the defaulting Party receives notice thereof. Either Party may terminate this Agreement in its entirety upon written notice if the other Party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership or liquidation, in any jurisdiction, that is not dismissed within sixty (60) days of its commencement, or an assignment for the benefit of creditors.
7.3 Post-Termination Obligations. If this Agreement expires or is terminated for any reason: (a) Customer will pay to Flowtrics any amounts that have accrued before, and remain unpaid as of, the effective date of the expiration or termination; (b) any and all liabilities of either Party to the other Party that have accrued before the effective date of the expiration or termination will survive; (c) licenses and use rights granted to Customer with respect to Flowtrics Services and intellectual property will immediately terminate; (d) Flowtrics’s obligation to provide any further services to Customer under this Agreement will immediately terminate, except any such services that are expressly to be provided following the expiration or termination of this Agreement; and (e) the Parties’ rights and obligations under Sections 6.1, 7.3, 8.3, and 10 through 13 will survive.
- WARRANTIES AND DISCLAIMERS
8.1 Flowtrics Service Warranties. Flowtrics warrants that during the applicable Term, the Flowtrics Services, when used as authorized under this Agreement, will perform substantially in conformance with the Documentation associated with the applicable Flowtrics Services. Customer’s sole and exclusive remedy for any breach of this warranty by Flowtrics is for Flowtrics to repair or replace the affected Flowtrics Services to make them conform, or, if Flowtrics determines that the foregoing remedy is not commercially reasonable, then either Party may terminate this Agreement.
8.2 Mutual Warranties. Each Party represents and warrants that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against it in accordance with the terms of this Agreement; and (b) no authorization or approval from any third party is required in connection with its execution, delivery, or performance of this Agreement.
8.3 Disclaimer. Except for the express representations and warranties stated in this Section 8 (Warranties and Disclaimers), SOW or a Service Schedule, Flowtrics: (a) makes no additional representation or warranty of any kind — whether express, implied in fact or by operation of law, or statutory — as to any matter whatsoever; (b) disclaims all implied warranties, including but not limited to merchantability, fitness for a particular purpose, and title; and (c) does not warrant that the Flowtrics Services are or will be error-free or meet Customer’s requirements. Customer has no right to make or pass on any representation or warranty on behalf of Flowtrics to any third party.
- THIRD-PARTY CLAIMS
9.1 By Flowtrics. Flowtrics will indemnify Customer, and its employees, directors, agents, and representatives from, and defend the Indemnified Parties against, any actual or threatened: (a) third-party claim; (b) third-party legal action; or (c) administrative agency action or proceeding (“Claim”) to the extent arising from or related to: (i) any alleged breach by Flowtrics of specified security safeguards related to the Flowtrics Services that results in the breach of its confidentiality obligations in Section 11 (Confidentiality); and (ii) any alleged infringement of any third-party intellectual property rights by the Flowtrics Services as provided by Flowtrics, or the Indemnified Party’s use thereof when used as authorized under this Agreement, provided, however, that Flowtrics will not be responsible for alleged infringement that is due to the combination of Flowtrics Services with goods or services provided by third parties.
9.2 By Customer. Customer will indemnify Flowtrics, and its employees, directors, agents, and representatives from, and defend the Indemnified Parties against, any Claim to the extent arising from or related to: (a) use of the Flowtrics Services by Customer or its Account Administrator or Authorized Users in violation of this Agreement, the Documentation, or applicable law; (b) any breach by Customer of its obligations under Section 2.2 (e)-(h) (Restrictions) or Section 11 (Confidentiality); or (c) the nature and content of all Customer Data processed by the Flowtrics Services.
9.3 Procedures. The Parties’ respective indemnification obligations above are conditioned on: (a) the Indemnified Parties giving the Indemnifying Party prompt written notice of the Claim, except that the failure to provide prompt notice will only limit the indemnification obligations to the extent the Indemnifying Party is prejudiced by the delay or failure; (b) the Indemnifying Party being given full and complete control over the defense and settlement of the Claim (as long as the settlement does not include any payment of any amounts by or any admissions of liability, whether civil or criminal, on the part of any of the Indemnified Parties); (c) the relevant Indemnified Parties providing assistance in connection with the defense and settlement of the Claim, as the Indemnifying Party may reasonably request; and (d) the Indemnified Parties’ compliance with any settlement or court order made in connection with the Claim. The Indemnifying Party will indemnify the Indemnified Parties against: (i) all damages, costs, and attorneys’ fees finally awarded against any of them with respect to any Claim; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of the Claim (other than attorneys’ fees and costs incurred without the Indemnifying Party’s consent after it has accepted defense of such Claim); and (iii) all amounts that the Indemnifying Party agreed to pay to any third party in settlement of any Claims arising under this Section 9 (Third-Party Claims) and settled by the Indemnifying Party or with its approval.
9.4 Infringement Remedy. If Customer is enjoined or otherwise prohibited from using any of the Flowtrics Services or a portion thereof based on a Claim covered by Flowtrics’s indemnification obligations under Section 9.1 (By Flowtrics) above, then Flowtrics will, at its sole expense and option, either: (a) obtain for Customer the right to use the allegedly infringing portions of the Flowtrics Services; (b) modify the allegedly infringing portions of the Flowtrics Services so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Flowtrics Services with non-infringing items of substantially similar functionality. If Flowtrics determines that the foregoing remedies are not commercially reasonable, then either Party may terminate this Agreement, and in such case, Flowtrics will provide a prorated refund to Customer for any prepaid fees received by Flowtrics under this Agreement that correspond to the unused portion of the Term. Without limiting Flowtrics’s obligation to indemnify Customer as set forth in Section 9.1 (By Flowtrics) above, the remedy set out in this Section 9.4 (Infringement Remedy) is Customer’s sole and exclusive remedy for any actual or alleged infringement by Flowtrics of any third-party intellectual property rights in the event that Customer is enjoined or otherwise prohibited from using any of the Flowtrics Services or a portion thereof based on a Claim covered by Flowtrics’s indemnification obligations under Section 9.1 (By Flowtrics).
- LIMITATION OF LIABILITY
10.1 Exclusion of Damages. EXCEPT FOR THE PARTIES’ OBLIGATIONS UNDER SECTION 9 (THIRD-PARTY CLAIMS), UNDER NO CIRCUMSTANCES, AND REGARDLESS OF THE NATURE OF THE CLAIM, SHALL EITHER PARTY (OR THEIR RESPECTIVE AFFILIATES) BE LIABLE TO THE OTHER PARTY FOR LOSS OF PROFITS, SALES OR BUSINESS, LOSS OF ANTICIPATED SAVINGS, LOSS OF USE OR CORRUPTION OF SOFTWARE, DATA OR INFORMATION, WORK STOPPAGE OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, COVER, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES.
10.2 Limitation of Liability. EXCEPT FOR: (A) THE PARTIES’ OBLIGATIONS UNDER SECTION 9 (THIRD-PARTY CLAIMS); (B) DAMAGES RESULTING FROM DEATH OR BODILY INJURY ARISING FROM EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND (C) FLOWTRIC’s RIGHT TO COLLECT UNPAID FEES DUE HEREUNDER, TO THE EXTENT PERMITTED BY LAW, THE TOTAL, CUMULATIVE LIABILITY OF EACH PARTY (OR THEIR RESPECTIVE AFFILIATES) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL BE LIMITED TO THE AMOUNTS PAID BY CUSTOMER FOR THE FLOWTRICS SERVICE(S) GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS CUMULATIVE LIMIT.
10.3 Independent Allocations of Risk. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of this Agreement between the Parties. This allocation is reflected in the pricing offered by Flowtrics to Customer and is an essential element of the basis of the bargain between the Parties. Each of these provisions is severable and independent of all other provisions of this Agreement, and each of these provisions will apply even if the warranties in this Agreement have failed of their essential purpose.
11.1 Restricted Use and Nondisclosure. During and after the Term, Recipient will: (a) use the Confidential Information of the other Party solely for the purpose for which it is provided; (b) not disclose such Confidential Information to a third party, except on a need-to-know basis to its Affiliates, attorneys, auditors, consultants, and service providers who are under confidentiality obligations at least as restrictive as those contained herein; and (c) protect such Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
11.2 Required Disclosure. If Recipient is required by law to disclose Confidential Information of the other Party or the terms of this Agreement, Recipient will give prompt written notice to the other Party before making the disclosure, unless prohibited from doing so by the legal or administrative process, and cooperate with the disclosing Party to obtain where reasonably available an order protecting the Confidential Information from public disclosure.
11.3 Ownership. Recipient acknowledges that, as between the Parties, all Confidential Information it receives from the disclosing Party, including all copies thereof in Recipient’s possession or control, in any media, is proprietary to and exclusively owned by the disclosing Party. Nothing in this Agreement grants Recipient any right, title or interest in or to any of the disclosing Party’s Confidential Information. Recipient’s incorporation of the disclosing Party’s Confidential Information into any of its own materials will not render Confidential Information non-confidential.
11.4 Remedies. Recipient acknowledges that any actual or threatened breach of this Section 11 (Confidentiality) may cause irreparable, non-monetary injury to the disclosing Party, the extent of which may be difficult to ascertain. Accordingly, the disclosing Party is entitled to (but not required to) seek injunctive relief in addition to all remedies available to the disclosing Party at law and/or in equity, to prevent or mitigate any breaches of this Agreement or damages that may otherwise result from those breaches. Absent written consent of the disclosing Party to the disclosure, the Recipient, in the case of a breach of this Section 11 (Confidentiality), has the burden of proving that the disclosing Party’s Confidential Information is not, or is no longer, confidential or a trade secret and that the disclosure does not otherwise violate this Section 11 (Confidentiality).
- GOVERNING LAW AND VENUE
12.1 The Parties agree to the following country-specific provisions for governing law and venue for all claims and disputes arising out of or relating to this Agreement. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the following laws based on the ship-to address of the Customer reflected on the Services Agreement.
(a) For all other locations. This Agreement is governed by the laws of the State of California, U.S.A., without reference to its choice of law rules to the contrary. The Parties hereby irrevocably consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in San Francisco County, California, for the purposes of adjudicating any dispute arising out of this Agreement. To the extent permitted by law, choice of law rules, the United Nations Convention on Contracts for the International Sale of Goods, and the Uniform Computer Information Transactions Act as enacted shall not apply. Notwithstanding the foregoing, either Party may at any time seek and obtain appropriate legal or equitable relief in any court of competent jurisdiction for claims regarding such Party’s intellectual property rights. Each Party hereby irrevocably waives, to the fullest extent permitted by law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement.
12.2 To the extent allowed by law, the English version of this Agreement is binding, and other translations are for convenience only.
13.1 Relationship. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Except as set forth in this Agreement, nothing in this Agreement, expressed or implied is intended to give rise to any third-party beneficiary.
13.2 Assignability. Neither Party may assign its rights or obligations under this Agreement without the other Party’s prior written consent. Notwithstanding the foregoing, either Party may assign its rights and obligations under this Agreement to an Affiliate as part of a reorganization, or to a purchaser of its business entity or substantially all of its assets or business to which rights and obligations pertain without the other Party’s consent, provided that: (a) the purchaser is not insolvent or otherwise unable to pay its debts as they become due; (b) the purchaser is not a competitor of the other Party; and (c) any assignee is bound hereby. Other than the foregoing, any attempt by either Party to transfer its rights or obligations under this Agreement will be void.
13.3 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective only if it is in writing and sent using: (a) Flowtrics Services; (b) certified or registered mail; or (c) a nationally recognized overnight courier, to the appropriate Party at the address set forth on the Services Agreement, with a copy, in the case of Flowtrics, legal@Flowtrics.com. Each Party hereto expressly consents to service of process by registered mail. Either Party may change its address for receipt of notice by notice to the other Party through a notice provided in accordance with this Section 13.3 (Notices). Notices are deemed given upon receipt if delivered using Flowtrics Services, two (2) business days following the date of mailing, or one (1) business day following delivery to a courier.
13.4 Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, telecommunications outage not caused by the obligated Party, or other similar causes) (“Force Majeure Event”), the affected Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that the affected Party: (a) provides the other Party with prompt notice of the nature and expected duration of the Force Majeure Event; (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such Force Majeure Event; (c) provides periodic notice of relevant developments; and (d) provides prompt notice of the end of such Force Majeure Event. Obligations to pay are excused only to the extent that payments are entirely prevented by the Force Majeure Event.
13.5 Anti-Corruption. In connection with the services performed under this Agreement and Customer’s use of Flowtrics’s products and services, the Parties agree to comply with all applicable anti-corruption and anti-bribery related laws, statutes, and regulations.
13.6 U.S. Government Rights. All Flowtrics software (including Flowtrics Services) is commercial computer software and all services are commercial items. “Commercial computer software” has the meaning set forth in Federal Acquisition Regulation (“FAR”) 2.101 for civilian agency purchases and the Department of Defense (“DOD”) FAR Supplement (“DFARS”) 252.227-7014(a)(1) for defense agency purchases. If the software is licensed or the Flowtrics Services are acquired by or on behalf of a civilian agency, Flowtrics provides the commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of this Agreement as required in FAR 12.212 (Computer Software) and FAR 12.211 (Technical Data) and their successors. If the software is licensed or the Flowtrics Services are acquired by or on behalf of any agency within the DOD, Flowtrics provides the commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of this Agreement as specified in DFARS 227.7202-3 and its successors. Only if this is a DOD prime contract or DOD subcontract, the Government acquires additional rights in technical data as set forth in DFARS 252.227-7015. Except as otherwise set forth in an applicable Service Schedule, this Section 13.7 (U.S. Government Rights) is in lieu of, and supersedes, any other FAR, DFARS or other clause or provision that addresses U.S. Government rights in computer software or technical data.
13.7 Publicity. Neither Party shall refer to the identity of the other Party in promotional material, publications, or press releases or other forms of publicity relating to the Flowtrics Service unless the prior written consent of the other Party has been obtained, provided, however, that Flowtrics may use Customer’s name and logo for the limited purpose of identifying Customer as a customer of the Flowtrics Service.
13.8 Waiver. The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
13.9 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.
13.10 Entire Agreement. This Agreement is the final, complete, and exclusive expression of the agreement between the Parties regarding the Flowtrics Services provided under this Agreement. This Agreement supersedes and replaces, and the Parties disclaim any reliance on, all previous oral and written communications (including any confidentiality agreements pertaining to the Flowtrics Services under this Agreement), representations, proposals, understandings, undertakings, and negotiations with respect to the subject matter hereof and apply to the exclusion of any other terms that Customer seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing. This Agreement may be changed only by a written agreement signed by an authorized agent of both Parties. This Agreement will prevail over terms and conditions of any Customer-issued purchase order or other ordering documents, which will have no force and effect, even if Flowtrics accepts or does not otherwise reject the purchase order or other ordering document.
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