Terms of Service
Last Updated November 11, 2022
These Terms of Service and any terms expressly incorporated herein (together, the “Agreement”) apply to any access to, or use of, any Services, as defined herein, made available by RevPartners LLC, a Georgia limited liability company, together with its subsidiaries and affiliates (the “Company”, “we”, “us” or “our”). For the purposes of this Agreement, the terms “Customer”, “you”, “your”, “yourself” and “user” means you as the user of the Services. Additionally, you and Company may be referred to herein together as the “Parties”, and each may be referred to individually as a “Party”.
For the avoidance of doubt, if you are accessing or using the Services on behalf of a business or entity, then the term “Customer” includes you and that business or entity. Additionally, you (a) represent and warrant that you are an authorized representative of the business or entity with the authority to bind the entity to this Agreement, and that you agree to the Agreement on the entity’s behalf, and (b) you understand and acknowledge that your business or entity is legally and financially responsible for your access or use of the Services as well as for the access or use of your account by others affiliated with your entity, including any employees, agents or contractors.
IF YOU DO NOT AGREE TO THIS AGREEMENT, OR IF YOU DO NOT HAVE THE REQUISITE AUTHORITY OR CAPACITY TO ENTER INTO THEM, DO NOT CLICK THE “ACCEPT” BUTTON OR CHECK ANY BOX TO ACCEPT THIS AGREEMENT, AND YOU MUST NOT ACCESS, OR USE THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT DOWNLOADING, ACCESSING OR USING ANY PORTION OF THE SERVICES IN ANY MANNER CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT IN THEIR ENTIRETY.
ARBITRATION NOTICE FOR USERS IN THE UNITED STATES: THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE IN WHICH YOU AND THE COMPANY AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION.
1.1 Nature of Services. The Company provides managed services including, onboarding, data migration, integration, revenue operations enhancements, sales and marketing operations, inbound marketing, and search engine optimization, all with relation to HubSpot, and as reflected in an Order Form or Statement of Work (the “Services”).
1.2 Order Forms and Statements of Work. Company shall provide to Customer the Services set out in one or more order form (each, and “Order Form”) and/or one or more statements of work (each, a “Statement of Work”), agreed by and between the Customer and the Company. Each Order Form or Statement of Work shall describe the Services with such reasonable detail as the Parties may determine to be necessary and appropriate, with such details to include (but not be limited to), as applicable: description of Services, expected deliverables, anticipated timeframes, and associated fees.
1.3 Third-Party Licenses. The Services may include, incorporate, utilize or work with other software, tools, applications, content, data or other materials, including related documentation, that are owned by persons other than the Company and that are provided to Customer on license terms that are in addition to and/or different from those contained in this Agreement, including but not limited to HubSpot’s license terms (“Third-Party Licenses”). Customer agrees to be bound by and shall comply with all Third-Party Licenses. Any breach by the Customer or any of its authorized users of any Third-Party License shall be considered a breach of this Agreement as well.
1.4 Amendments to Statement of Work.
(a) Either Party may request, in writing, changes to the Services, or to a specific Statement of Work (a “Change Request”), as further described in Section 1.4(b). Material changes to a Statement of Work include, but are not limited to, requests for changes in scope, risks, specifications, costs, schedule, designs, deliverables or other similar requirements. The Company shall not be obligated to perform tasks described in any such Change Request unless and until the Parties agree, in writing, to the proposed change. The Parties agree that they shall evaluate any duly served Change Request in good faith, and, if agreed, implement all such changes, and, upon any such agreement and implementation, any fees which have been agreed to be adjusted shall, thereafter, be so adjusted, in accordance with such written change order.
(b) Any Change Request that a Party wishes to be considered shall be in writing, shall reference this Agreement, and any applicable Statement of Work (if applicable), and shall contain a reasonable and sufficient level of detail to allow the other Party to evaluate the same. The Company may prescribe a written form for purposes of the same, and, if so, each Party agrees to use such form. For the avoidance of doubt, e-mail shall suffice for provision and acceptance of written notice with respect to Change Requests but shall specifically state in the same writing that the request is a “Change Request.”
(c) In addition to the foregoing, external project dependencies, which are not met and are not the responsibility of the Service Provider, may result in additional costs.
2. Company Obligations. Promptly following the effective date of an Order Form or Statement of Work and in accordance with the terms of this Agreement, the Company shall perform Services set forth in each Order Form or Statement of Work.
3. Customer Obligations.
3.1 Customer Resources and Cooperation. The Customer will, in accordance with any Order Form or Statement of Work issued hereunder:
(a) provide the Customer Materials and all such other resources as may be necessary to provide the Services;
(b) participate in meetings (scheduled with at least two (2) business days advance notice) to review and discuss the Services, Deliverables, and such other matters as may be relevant to this Agreement; and
(c) provide reasonable cooperation and assistance that the Company may reasonably request, to enable the Company to provide the Services and otherwise perform its obligations under this Agreement.
3.2 Customer Delays. This Agreement contemplates that each Statement of Work may provide estimated start dates, estimated completion dates, and, if applicable, milestone dates for providing Services (and Deliverables, as applicable). As used in this Agreement, a “Customer Delay” means any action or inaction by Customer or its officers, employees, or agents, that causes Company to delay providing Services or tendering Deliverables to Customer or to otherwise deviate from the delivery schedule or completion date set forth in a Statement of Work. In the event of any Customer Delay or failure by the Customer to comply with Section 3.1 above, the Company may, by written notice to the Customer, suspend the Services until it receives the information or materials reasonably required for it to continue with the Services. Customer acknowledges and agrees that Customer Delays may result in additional costs and expenses for Company, and that Customer shall be responsible for the payment of all such additional costs and expenses that result from Customer Delays.
3.3 Compliance and Security. Customer acknowledges and agrees that it will comply with all applicable laws, regulations, rules, orders, and other requirements related to the Services and its obligations under this Agreement. Customer shall take all precautions to ensure the use of data or software related to the Services are not used in breach of any laws or intentionally used to transmit or disseminate viruses or other harmful programs or features.
3.4 Customer Materials.
(a) In the course of providing Services, Customer may provide to Company data (including data populated into HubSpot), documents, written works, design, layouts, technologies, software, systems, information, files, artwork, graphics, video, audio, reports or other proprietary information (the “Customer Materials”), that may be utilized by Company in the course of providing Services. As between the Parties, the Customer is and will remain, the sole and exclusive owner of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein, subject only to the license granted under Section 3.4(b). All other rights in and to the Customer Materials are expressly reserved by the Customer.
(b) The Customer hereby grants to the Company a fully paid-up and royalty-free, non-exclusive right and license to use, reproduce, perform, display, distribute, modify, and create derivative works and improvements of the Customer Materials solely to develop the Deliverables and otherwise as necessary to perform the Services for the exclusive benefit of the Customer. The term of such license will commence upon the Customer’s first delivery of Customer Materials to the Company, and shall expire automatically upon the earlier of (i) termination of this Agreement; or (ii) completion of the Order Form or Statement(s) of Work that require the Company to utilize Customer Materials.
4. Fees and Expenses.
4.1 Fees. The Customer will compensate the Company for the Services at the agreed rate(s), and on the terms and conditions of payment provided on the applicable Order form and/or Statement of Work (the “Fees”).
4.2 Reimbursement of Expenses. Customer shall reimburse Company for all reasonable expenses incurred in performing Services hereunder (each, a “Reimbursement”) within thirty (30) days of receipt by Customer of an invoice from Company or as otherwise agreed upon by the Company. Company agrees to obtain approval from Customer, in advance, before incurring expenses on the Customer’s behalf.
4.3 Taxes. Customer shall be responsible for all sales, use, VAT, and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any national, federal, state, provincial, or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Company’s income, revenues, gross receipts, personnel or real or personal property or other assets. In connection with this Section 4.3, Customer expressly represents and warrants that its principal business address is the address shown on the Order Form, unless such address has been changed, by prior notice to Company.
4.4 Order Form Payments; Invoicing. Unless otherwise provided on an Order Form, the Customer will be issued an invoice for the initial month’s Fees and Reimbursements (inclusive of any implementation or setup Fees) on the Kickoff Date. Fees for subsequent months will be invoiced monthly thereafter. The Customer shall pay all invoices within fifteen (15) days of the invoice date. For the purpose this Agreement, “Kickoff Date” means the earlier date of the kickoff meeting between the Company and Customer or thirty (30) days from the effective date of the Order Form or Statement of Work, as applicable.
4.5 Statement of Work Payments; Invoicing. Unless otherwise provided on a Statement of Work, the Customer will be issued three equal invoices, together amounting to the total Fees and Reimbursements (inclusive of any implementation or setup Fees) reflected on the Statement of Work, on each the Kickoff Date, thirty (30) days from the Kickoff Date, and sixty (60) days from the Kickoff Date. The Customer shall pay all invoices within fifteen (15) days of the invoice date.
4.6 Payment Procedures. The Customer will make all payments hereunder in US Dollars ($) via Credit Card or ACH Bank Transfer, or other such method that may be specified by the Company from time to time. The Customer will make payments to the address or account specified in the applicable Order Form or Statement of Work, or such other address or account as is specified by the Company, in writing, from time to time.
4.7 Late Payments. All late payments shall bear interest at the lesser of the rate of one and one-half percent (1.5%) per month or the highest rate permissible under applicable law (not to exceed sixteen percent (16.0%) per annum under any circumstance), calculated daily and compounded monthly. Customer shall also reimburse Company for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Company does not waive by the exercise of any rights hereunder), Company shall be entitled to suspend the provision of any Services if Customer fails to pay any undisputed amounts when due hereunder, and such failure continues for fifteen (15) days. Company will give five (5) days prior written notice to Customer prior to suspending the Services for late payment.
5. Limited Warranty and Limitation of Liability.
5.1 Limited Warranty. Company warrants that it shall perform the Services:
(a) using personnel of industry standard skill, experience and qualifications;
(b) in a workmanlike and professional manner in accordance with generally recognized industry standards for similar services; and
(d) in compliance with all applicable laws and relevant statutory requirements.
5.2 Exclusive Remedies for Breach of Warranties. Company’s sole and exclusive liability and Customer’s sole and exclusive remedy for breach of this warranty shall be as follows:
(a) Company shall use reasonable commercial efforts to promptly cure any such breach; provided, that if Company cannot cure such breach within a reasonable time (but no more than thirty (30) days) after Customer’s written notice of such breach, Customer may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 9.4.
(b) In the event that this Agreement is terminated pursuant to this Section 5.2, Company shall, within thirty (30) days after the effective date of termination, refund to Customer any fees paid by Customer for Service not yet provided or Deliverables (as defined below) not yet delivered to Customer up to and including the date of termination on a pro-rated basis.
(c) The foregoing remedy shall not be available unless Customer provides written notice of such breach within thirty (30) days after delivery of such Service or Deliverable to Customer.
5.3 No Other Warranties.
(a) OTHER THAN AS PROVIDED IN SECTION 5.1, THE COMPANY MAKES NO OTHER WARRANTIES. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILTY OR NON INFRINGMENT, ARE EXPRESSLY DISCLAIMED, AND THE SAME SHALL BE CONSIDERED AS DELIVERED “AS IS” AND “WHERE IS”.
(b) IN ADDITION TO, AND IN NO WAY LIMITING THE FOREGOING, THE COMPANY MAKES NO GUARANTEES OF SUCCESS RELATED TO THE GOALS OF THE CLIENT IN CONTRACTING FOR PROVISION OF THE SERVICES, IN ANY MANNER. FAILURE TO ACHIEVE STATED GOALS OF THE CUSTOMER, WHETHER RECTIED IN AN ORDER FORM OR STATEMENT OF WORK, OR OTHERWISE, SHALL NOT CONSITUTE A BREACH OF THIS AGREEMENT BY THE COMPANY, IN ANY RESPECT, AND NO REFUND OF ANY FEES WHICH ARE PAID, OR DUE AND PAYABLE, SHALL BE MADE IN ANY SUCH EVENT.
5.4 Limitations of Liability.
(a) IN NO EVENT SHALL THE COMPANY BE LIABLE TO THE CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO THE COMPANY PURSUANT TO THE APPLICABLE ORDER FORM OR STATEMENT OF WORK FOR THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
6. Intellectual Property.
6.1 Company Intellectual Property Rights. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) that are owned by Company shall always remain the exclusive property of Company (or of its suppliers or licensors, if and when applicable). Nothing in this Agreement grants Customer a license to Company’s Intellectual Property Rights.
6.2 Customer Intellectual Property Rights. All Intellectual Property Rights in and to the Customer Materials shall always remain the exclusive property of Customer (or its suppliers or licensors, if and when applicable). Nothing in this Agreement grants Company a license to Customer’s Intellectual Property Rights.
6.3 Deliverables. All Intellectual Property Rights in and to documents, final work products and other materials that are delivered to Customer under this Agreement, as identified in an Order Form or Statement of Work (collectively, the “Deliverables”) shall be owned by Customer; provided, however, Customer agrees that the Company may produce similar deliverables for other customers using proprietary templates, workflow, and processes developed by the Company, all of which shall remain intellectual property of the Company. Intellectual Property Rights to all other items not identified as Deliverables in an Order Form or Statement of Work shall be owned by Company; provided, however, Company shall not incorporate any of the Customer Materials into its intellectual property.
6.4 Derivative Works. Notwithstanding anything to the contrary in this Section 6, to the extent that any Deliverables or the results of any Services by Company are additions, amendments, enhancements, modifications, or other changes to any intellectual property owned or otherwise provided by Company (the “Derivative Works”), all of the right, title, and interest to the Intellectual Property Rights to such Derivative Works shall remain solely and exclusively with Company.
6.5 Residuals. Notwithstanding any other provision in this Agreement, the Customer understands, acknowledges and agrees that the Company shall have the right to retain, use and disclose, without accounting to the Customer, any Residual Knowledge obtained by the Company in the performance of Services hereunder. “Residual Knowledge” shall mean and include information, other than the Confidential Information of the Customer, of the type that applicable law would permit an employee or other affiliate of the Company to retain and use in subsequent employment or engagement with a third party. This exception to the obligations of confidentiality and non-use is intended only to alleviate the possibility of inadvertent breach of this Agreement arising from routine, unaided memory retention by employees or other affiliates of the Company and is not intended to permit the Company to use or disclose information known to the Company to be Deliverables or Confidential Information subject to this Agreement.
6.6 Feedback. If Customer provides the Company with any feedback or suggestions about the Services or the Company’s business operations (the “Feedback”), the Company may use the Feedback without obligation to the Customer, and the Customer irrevocably assigns to the Company all right, title, and interest in and to the Feedback. This Agreement is not a sale and does not give Customer any rights of ownership in, or related to, the Services or the Company’s Intellectual Property Rights.
7.1 Confidential Information and Non-Disclosure. From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public proprietary and confidential information of the Disclosing Party that is either marked as confidential or proprietary or that, given the nature of the information or the circumstances of the disclosure, reasonably ought to be considered to be confidential (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of the Receiving Party’s breach of this Section 7; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in the Receiving Party’s possession prior to the Disclosing Party's disclosure hereunder; or (d) was or is independently developed by the Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
7.2 Required Disclosure. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify the Disclosing Party of such requirements to afford the Disclosing Party the opportunity to seek, at the Disclosing Party’s sole cost and expense, a protective order or other remedy.
7.3 Publicity. Notwithstanding anything in this Section 7 to the contrary, Customer grants the Company the limited right to use the other Customer’s name and logo on customer lists and informational or promotional materials. Neither Party will issue any public communications concerning the specifics of this relationship without the prior written consent of the other Party.
8.1 Relationship of the Parties. Neither Party shall have, nor shall represent that it has, any power, right or authority to bind the other Party, or to assume or create any obligation or responsibility, express or implied, on behalf of the other Party or in the other Party’s name, except as herein expressly provided. Nothing stated in this Agreement shall be construed as constituting the Parties hereto as partners or as creating the relationships of employer / employee, franchisor / franchisee, or principal / agent between the parties. Company is performing services for Customer as an independent contractor. Neither Party can bind the other to any agreement with any third party.
8.2 No Exclusive Duty. The Company shall not be required to participate in the provision of Services to the Customer hereunder as its sole and exclusive function, and the Customer understands and acknowledges that the Company may have other business interests and may engage in other activities, in addition to those relating to the Customer, including the provision of the same or similar services to other customers and clients of the Company. The Customer further understands and acknowledges that some such persons may otherwise be considered competitors of the Customer, and such fact shall not alter the foregoing presumption and permission; provided that the Company is otherwise abiding by its obligations hereunder (including its obligations of confidentiality).
8.3 Third-Party Service Providers. Company may fulfill its obligation to provide Services hereunder through the assignment and use of one or more subcontractors (each, a “Subcontractor”). To the extent that Company uses any Subcontractor to perform any portion of the Services hereunder, it shall remain fully responsible and liable for all actions of such Subcontractor and use of the same shall not relieve the Company of any of its obligations under this Agreement. The Company is under no obligation to notify Customer prior to its assignment or use of Subcontractors. In addition to the foregoing, in the case of any use of Subcontractors by the Company, the Company shall ensure that any such Subcontractor is under contractual obligations with respect to the handling of the Customer’s Confidential Information that are at least as stringent as those obligations of the Company hereunder.
8.4 Hosting Services. During the Term, the Company may offer hosting services to the Customer (the “Hosting Services”). The Company may fulfill its obligation to provide Hosting Services through the assignment and use of one or more Subcontractors. Order Forms for Hosting Services may contain additional Subcontractor terms and conditions.
9. Term, Termination and Survival.
9.1 MSA Term. This Agreement shall commence as of the Effective Date and will remain in effect until the later of (i) the date this Agreement is terminated pursuant to Sections 9.4 or 9.5, or (ii) six (6) months after the completion or expiration of all the Order Forms or Statements of Works issued hereunder (the “MSA Term”). In the event that this Agreement is terminated, but Company is still providing Services pursuant to an Order Form or Statement of Work, then the terms of this Agreement shall apply to the Parties until the completion or termination of the corresponding Order Form or Statement of Work.
9.2 Order Form Term. Unless otherwise provide on an Order Form, each individual Order Form shall commence on the Kickoff Date (the “Kickoff Date”) reflected therein and will continue for six (6) months (the “Initial Order Form Term”). Unless the Customer provides the Company with a written termination notice within the Initial Order Form Term, the Order Form will continue in full effect in perpetuity until the Customer provides the Company with ninety (90) days written notice of termination.
9.3 SOW Term. Each individual Statement of Work shall commence on the Kickoff Date reflected therein and will continue until the earlier of (i) the expiry of the term reflected on the Statement of Work (where applicable), or (ii) the completion of all material obligations of the Parties pursuant thereto.
9.4 Termination by Either Party. Either Party may terminate this Agreement, an Order Form, or Statement of Work, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party:
(a) Materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; or
(b) Becomes insolvent or admits its inability to pay its debts generally as they become due; or
(c) Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) days or is not dismissed or vacated within forty-five (45) days after filing; or
(d) Is dissolved or liquidated or takes any corporate action for such purpose; or
(e) Makes a general assignment for the benefit of creditors; or
(f) Has 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.
9.5 Termination by Company. Company may terminate this Agreement, an Order Form, or Statement of Work, upon written notice if Customer fails to pay any amount when due hereunder: (a) and such failure continues for ten (10) days after Customer’s receipt of written notice of nonpayment; or (b) more than two (2) times in any rolling twelve (12) month period.
9.6 Effect of Termination. The rights and obligations of the parties set forth in this Section 9, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement. In the event of termination, Customer shall be responsible for, and shall promptly pay, all Fees for Services provided by Company through the date of termination.
10. Indemnification. Each Party (an “Indemnifying Party”) shall indemnify, defend and hold harmless the other Party and its and their respective representatives, officers, directors, employees, agents, affiliates, successors and assigns (collectively,the “Indemnified Parties”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party (collectively, “Losses”), to the extent arising out of or resulting from any claim of a third party alleging: (a) any grossly negligent or more culpable act or omission of Indemnifying Party or its personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; (b) any bodily injury, death of any person or damage to real or tangible personal property caused by the negligent acts or omissions of Indemnifying Party or Indemnifying Party’s personnel; (c) any infringement of the Intellectual Property Rights of any third-party by the Indemnifying Party; (d) any violation of Third-Party Licenses, or (e) any failure by Indemnifying Party or its personnel to comply with applicable laws, as the interpretation of which are reasonably understood by such Party, acting in good faith.
11.1 Entire Agreement. This Agreement, including and together with any related Statements of Work, exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The Parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Order Form or Statement of Work, the terms and conditions of the Order Form or Statement of Work shall control.
11.2 Notices. All notices, requests, consents, claims, demands, waivers and other communications to Company or Customer hereunder shall be in writing to the respective address of each Party and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by an internationally recognized courier (with tracking confirmation); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient. Company or Customer may change its address from time to time by giving written notice to the other Party. The address of the Company and Customer are set forth on the signature page hereto.
11.3 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
11.4 Amendments. No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of this Agreement and signed by an authorized representative of each Party.
11.5 Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
11.6 Assignment. Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Company. Any purported assignment or delegation in violation of this Section 11.6 shall be null and void. No assignment or delegation shall relieve Customer of any of its obligations under this Agreement. Company may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of Company’s assets without Customer’s consent.
11.7 Successors and Assigns. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
11.8 No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
11.9 Dispute Resolution. Customer acknowledges and agrees that any controversy or claim arising out of, or in any way related to, this Agreement, will be settled by exclusively by binding arbitration, before a single, neutral arbitrator, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (AAA). The arbitrator will be appointed by agreement of the parties, but in the event that the parties fail to agree on the arbitrator, the AAA shall appoint an arbitrator with sufficient understanding of the business and technology issues relevant to resolving the dispute. The arbitrator shall have the sole power to rule on matters of jurisdiction, arbitrability, timeliness of claims, issue preclusion, and to grant permanent equitable relief. The arbitration will take place in Fulton County, Georgia (or another location if mutually agreed upon by the parties). The arbitration award will be valid and binding upon the parties, and judgment thereon may be entered and enforced as a final judgment in any court with competent jurisdiction.
11.10 Equitable Relief. Customer acknowledges and agrees a breach of this Agreement would cause Company irreparable harm for which money damages alone would be inadequate. In addition to damages and any other remedies to which Company may be entitled, Customer acknowledges and agrees that Company may, seek injunctive relief to prevent the actual, threatened or continued breach of this Agreement. Claims by Company for injunctive relief or other equitable relief may be filed in the state or federal courts of Georgia (or any other jurisdiction selected by Company for such action) for an order effective until the conclusion of arbitration and enforcement of the arbitration award, and such claims may be filed without a good faith attempt to resolve the issues underlying such claims.
11.11 Choice of Forum. If it is determined for any reason that a legal action between the parties must be commenced in a court of law instead of arbitration, Customer acknowledges and agrees to bring any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder solely in the courts of Fulton County, Georgia or the United States District Court for the Northern District of Georgia, Atlanta Division. Company and Customer each agree to submit to the exclusive jurisdiction of such Georgia courts in any such suit, action or proceeding. This Section 11.11 shall not modify or supplant the Dispute Resolution provision set forth in Section 11.11 of this Agreement, which is intended to be the primary and exclusive means of resolving all disputes between the Parties.
11.12 Choice of Law. This Agreement, including all cover pages, exhibits, schedules, attachments and appendices attached to this Agreement, and all matters arising out of or relating to this Agreement, is governed by, and is to be construed in accordance with the internal laws of the State of Georgia, USA without regard for its conflict of laws principles.
11.13 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
11.14 Force Majeure.
(a) In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control (a “Force Majeure Event”), including (i) acts of God; (ii) flood, fire, earthquake, public health emergencies, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, regulations or actions to the contrary of the purposes of this Agreement; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (viii) shortage of adequate power or transportation facilities.
(b) In the event of any failure or delay caused by a Force Majeure Event, the affected Party shall give prompt notice to the other Party, stating the period of time the occurrence is expected to continue and use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event. Either Party may terminate this Agreement, by notice and without further liability to either Party, if a Force Majeure Event affecting the other Party continues, substantially uninterrupted, for a period of thirty (30) days or more.
11.15 Publicity. Customer agrees that Company may publish a brief description highlighting Customer use of the Services, identify Customer as Company customer on any of Company’s websites, client lists, press releases, and/or other marketing materials.
[End of Terms of Service]