1.1 “Access Protocols” shall have the meaning set forth in Section 2.2.
1.2 “Access Term” shall have the meaning set forth in Section 2.1.
1.3 “Addendum” means any addendum to this Agreement executed by both Parties, if any, and may include, without limitation, Critical Impact’s standard form of Professional Services Addendum.
1.4 “Application Documentation” will mean text and/or graphical documentation, whether in electronic or printed format, that describe the features, functions and operation of the Application Service, which materials are designed to facilitate use of the Application Service and which are provided by Critical Impact to Customer in accordance with the terms of this Agreement.
1.5 “Application Services” will mean the services and Critical Impact content ordered by Customer through an Order Form and provided by Critical Impact by means of access to certain content and use of the features and functionality of software applications available and accessible within the Critical Impact web sites, solely to the extent set forth and further described in, and as limited by, the Order Forms executed by the Parties.
1.6 “Authorized User” shall mean End Users and Management/Admin Users.
1.7 “Capacity” means the amount of data storage, data transmission and number of page views and/or registered End Users capacity for the Customer Site ordered under a given Order Form.
1.8 “Confidential Information” will mean all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential. Without limiting the foregoing, for purposes of this Agreement, the Application Documentation will be deemed Confidential Information of Critical Impact.
1.9 “Customer Brand” shall mean any one or more of the trademarks, service marks, trade names, domain names, logos, business and product names, slogans, and registrations and applications for registration thereof owned by Customer as of the Effective Date.
1.10 “Customer Content” will mean the data, media and content provided by Customer for use with the Application Service and access through the Application Service.
1.11 “Customer URL(s)” will mean the customer url(s) identified in an Order Form through which End Users may gain access to the Site.
1.12 “End Users” shall mean any customer of Critical Impact who accesses the Customer Content as provided by Critical Impact through the Site via the Customer Login Id’s purchased.
1.13 “Initial Term” shall have the meaning set forth in section 10.1.
1.14 “Order Form” shall mean a document signed by both Parties identifying the type of Application Services to be made available by Critical Impact pursuant to this Agreement, substantially in the same form as Schedule A attached hereto. Each Order Form shall be agreed upon by the Parties as set forth in Section 2.1.
1.15 “Users” shall mean an individual employee of Customer to whom Customer has paid the appropriate access fees and has assigned an identification number for access to the Application Services for Customer’s own internal business purposes. If and when a User no longer has access to the Application Services, Customer may allow an alternate User to assume the initial User’s identification number and access the Application Services in place of the initial User.
1.16 “Site” shall mean the website to which Critical Impact provides customer access, containing the Customer Content accessed through the Customer URL based on a portion of the Application Services.
1.17 “Term” will have the meaning set forth in Section 10.1.
ORDERING; ACCESS AND USE
2.1 “Order Forms.” The Application Services to be provided by Critical Impact under this Agreement will be set forth in one or more Order Forms executed by the Parties from time to time during the Term. The Parties shall negotiate and sign each Order Form separately. Each Order Form shall set out a description of the applicable Application Services, the costs associated with such Application Services, the period of time Customer will have access to the ordered Application Services (the ” Access Term”), the Capacity Level for such Application Services, the schedule of payments for the performance of such Application Services, and any unique additional terms. Each Order Form shall be attached to this Agreement and incorporated in this Agreement by reference.
2.2 “Provision of Access to the Site for End Users.” Subject to the terms and conditions contained in this Agreement, Critical Impact hereby grants to Customer a non-exclusive, non-transferable right to permit access to Site during the Access Term identified in the applicable Order Form, solely for use by Authorized Users in accordance with the terms and conditions of this Agreement. On or as soon as reasonably practicable after the Effective Date, Critical Impact shall provide to Customer the necessary passwords, security protocols and policies and network links or connections (the “Access Protocols”) to allow Customer to access the Site.
2.3 “Provision of Access for Admin Users.” Subject to the terms and conditions contained in this Agreement, Critical Impact hereby grants to Customer a non-exclusive, non-transferable right to access to the features and functions of the Application Service during the Access Term identified in the applicable Order Form, solely for use by Authorized Users in accordance with the terms and conditions of this Agreement. On or as soon as reasonably practicable after the Effective Date, Critical Impact shall provide to Customer the Access Protocols to allow Customer to access the Application Service. Critical Impact shall also provide Customer access to the Application Documentation to be used by Customer in accessing and using the Application Service. Customer shall ensure that all access to the Application Services shall comply with Critical Impact’s privacy policies and e-mail policies provided to Customer from time-to-time by Critical Impact. Customer acknowledges and agrees that, as between Customer and Critical Impact, Customer shall be responsible for all acts and omissions of Authorized and/or Admin Users, and any act or omission by such Admin Users which, if undertaken by Customer, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Customer. Customer shall undertake reasonable efforts to make all such Admin Users aware of the provisions of this Agreement as applicable to such Admin User’s use of the Application Service, and shall cause Admin Users to comply with such provisions.
2.4 “Application Documentation License.” Subject to the terms and conditions contained in this Agreement, Critical Impact hereby grants to Customer a non-exclusive, non-transferable right and license to use the Application Documentation during the Term for Customer’s internal purposes in connection with its use of the Application Service as contemplated in this Agreement.
2.5 “Provision of Capacity for Site.” Subject to the terms and conditions contained in this Agreement, Critical Impact agrees to provide Customer the Capacity for the Site set forth in the applicable Order Form. In the event that Customer exceeds the ordered Capacity, Critical Impact shall use commercially reasonable efforts to provide such additional Capacity as may be required by Customer. In the event Critical Impact provides such additional Capacity, Customer agrees to pay Critical Impact for such additional Capacity provided by Critical Impact in accordance with the terms of Section 5.
2.6 “Usage Restrictions.” Customer will not (i) copy or duplicate the Application; (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Application is compiled or interpreted; (iii) modify the Application Service or the Application Documentation, or create any derivative product from any of the foregoing; or (iv) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under Sections 2.2, 2.3 and 2.4. Customer will ensure that its use of the Application Service and the Application Documentation and all Customer Content complies with all applicable laws, statutes, regulations or rules. Customer shall notify Critical Impact immediately of any unauthorized use of any password or account or any other known or suspected breach of security. Customer will only allow Users who have been assigned a unique user identification to access the Application Services.
2.7 “Retained Rights; Ownership.”
(a) Subject to the rights granted in this Agreement, Customer retains all right, title and interest in and to the Customer Brand and Customer Content, and Critical Impact acknowledges that it neither owns nor acquires any additional rights in and to the Customer Brand or Customer Content not expressly granted by this Agreement. Customer is solely responsible for all Customer Content. Critical Impact further acknowledges that Customer retains the right to use the Customer Brand and Customer Content for any purpose in Customer’s sole discretion. Subject to the foregoing, Customer hereby grants to Critical Impact a non-exclusive, non-transferable right and license to use the Customer Brand and Customer Content during the Term for the limited purposes of performing Critical Impact’s obligations under this Agreement.
(b) Subject to the rights granted in this Agreement, Critical Impact retains all right, title and interest in and to the Application Service and the Application Documentation, including all related patent, copyright, trademark, and other intellectual property rights. In addition, Critical Impact shall own all rights, title, and interest, including all intellectual property rights, in and to any improvements to the Platform or Products, including without limitation those relating to any new programs, upgrades, modifications, refinements, or enhancements (collectively, “Improvements”) developed by or for Critical Impact in connection with providing the Application Service and the Application Documentation to Customer, even when such Improvements results from Customer’s request. To the extent, if any, that ownership in such Improvements does not automatically vest in Critical Impact by virtue of the Agreement or otherwise, Customer hereby transfers and assigns to Critical Impact all rights, title, and interest that Customer may have in and to such Improvements. Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement. Customer further acknowledges that Critical Impact retains the right to use the foregoing for any purpose in Critical Impact’s sole discretion.
(c) In the event you find or believe anyone has posted material that violates any copyright or intellectual property owned by Critical Impact, you or a third party, you may notify us via email at: firstname.lastname@example.org.
CRITICAL IMPACT OBLIGATIONS
3.1 “Technical Support.” Critical Impact provides certain limited support services as part of the Application Service. However, Customer may request for Critical Impact to provide additional technical support services related to Customer’s use of the Application Service. Critical Impact agrees to provide such technical support services as are set forth in an Order Form; provided the Customer has also executed the applicable Technical Support Addendum. Until the Customer has ordered technical support pursuant to an Order Form, Critical Impact shall only provide the limited support it normally provides to its customers generally as part of the Application Services.
3.2 “Training.” Customer may request for Critical Impact to provide training services related to Customer’s use of the Application Service. Critical Impact agrees to provide such training services as are set forth in an Order Form. Until the Customer has ordered training services pursuant to an Order Form, Critical Impact shall have no obligation to provide training services to Customer.
3.3 “Communication with Authorized Users.” As part of the provision of the Site, Critical Impact may need to communicate with Authorized Users from time-to-time. Customer hereby grants Critical Impact the limited right to communicate with Authorized Users as may be necessary as part of the provision of the Site, in Critical Impact’s reasonable discretion.
4.1 “Authorized User Access to Services.” Subject to the terms and conditions herein, Customer may permit any Authorized User to access and use the features and functions of the Application Service only through the Access Protocols. Customer will ensure that any such Authorized User will be bound by a contractual, enforceable agreement, which agreement, will, by its terms, provide substantially the same or greater protections for Critical Impact’s Confidential Information, the Application Service, and the Application Documentation as are provided by the terms hereof.
4.2 “Customer Content.” Customer and its Authorized Users shall have access to the Customer Content and shall 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 Application Services and the Site. Customer hereby represents and warrants that it owns or otherwise has sufficient right to grant Critical Impact access to and use the Customer Content in accordance with the terms of this Agreement. Customer will be solely responsible for the accuracy and completeness of the Customer Content.
4.3 “Use of the Application Services.” Customer agrees that Customer will not use the Applications Services in any manner for spamming, sending chain letters, junk mail, or using a distribution list, news groups, publicly available press or media addresses, and email addresses purchased, rented, or received via a third-party to communicate with a person who has not given Customer specific permission to contact them in such a manner. It is not considered permission or consent to receive email correspondence from you if a person or organization participates in a survey or registers for an event, clicks “Like” on your Facebook® page, or “follows” you on Twitter®. For respondents to your surveys or registrants to your events or people or organizations that interact with you through your social media campaigns, consent to receive other correspondence from you is evidenced by the respondent or registrant opting into the “Join My Mailing List” link in the course of responding to your survey, registering for your event or interacting with you by means of your social media campaigns. Customer agrees not to use the Application Services to display, transmit or otherwise provide access to any unlawful, infringing, libelous, obscene or harassing content of any kind, including, but not limited to Customer Content. Customer agrees to use the Application Services only in a lawful manner and in accordance with Critical Impact’s e-mail and use policies provided to Customer from time-to-time. Customer will be solely responsible for (a) sending or storing material and/or Customer Content containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (b) any act that may interfere with or disrupt the integrity or performance of the Service or the data contained therein; (c) any attempt by any Authorized User or other Customer employee, contractor or agent to gain unauthorized access to the Service or its related systems or networks. Customer shall indemnify Critical Impact for all damages resulting from such Customer responsibilities; or (d) Mass Mailings by sending mass unsolicited e-mail, which is email that is sent to recipients who have not Confirmed Opt-In or Closed-Loop Opt-In in to mailings from the User. All messages sent by means of the Service shall be in compliance with our Anti-Spam Policy. We reserve the right without notice to review all emails and campaigns for compliance and take all measures of any nature (whether legal, technical or otherwise) to prevent unsolicited bulk email and/or other unauthorized email, messages or campaigns from entering, utilizing or remaining within our network; or (e) Vulnerability Testing: Customer shall not attempt to test the vulnerability of Critical Impact’s system or network, or attempt to breach Critical Impact’s security measures, by any means (Customer may conduct vulnerability testing of their Hosted System only with Critical Impact’s prior written consent).
4.4 “Prohibited Content.” Conduct prohibited by section 4.3 of this Agreement, includes but not limited to, the use of the Application Services by any Customer that:
In the event that you engage in any of the activities listed above, in our sole discretion, we reserve the right to terminate your access to or use of the Application Service, disable your Critical Impact account or access to the Application Services, and remove all or a portion of your content, in each case at any time, with or without notice and without refund. We may also report your activity to the applicable legal authorities as required by law or in our discretion.
FEES AND EXPENSES; PAYMENTS.
5.1 “Fees.” In consideration for the access rights granted to Customer and the Services performed by Critical Impact under this Agreement, Customer will pay to Critical Impact, without offset or deduction, all fees required by a particular Order Form. Customer acknowledges and agrees that for all Access Terms that are on a month-to-month basis, Critical Impact will invoice Customer on the Billing Date (as defined on the Order Form) set forth on the Order Form of the applicable month for that month’s access. Critical Impact will either charge Customer as set forth in Section 5.3 or submit invoices to Customer with respect to such fees according to the relevant payment schedules indicated on the applicable Order Form, and each invoiced amount will be due and payable upon receipt of the relevant invoice by Customer. Notwithstanding the foregoing, any set-up fees listed on a particular Order Form shall be due and payable upon execution of the applicable Order Form.
5.2 “Additional Capacity Fees.” In the event Critical Impact provides Customer with additional Capacity as contemplated by Section 2.5, Critical Impact may invoice Customer Critical Impact’s then-current fees for such additional Capacity for the month for which such additional Capacity was provided and Customer shall pay such amounts within thirty (30) days after receipt of such an invoice.
5.3 “Automatic Debit.” Customer authorizes Critical Impact to charge an amount equal to the fees set forth in the Order Form and any additional capacity fees to the credit card and/or bank account specified in the Service Registration Profile in advance of provision of services to Customer. Critical Impact shall deduct amounts payable by Customer hereunder, including, without limitation, applicable taxes, if any, from Customer’s account as such amounts become due. In the event that (i) Customer’s credit balance falls below zero dollars ($0.00); or (ii) Critical Impact is unable to charge any amounts payable hereunder to the credit card account(s) specified by Customer in the Service Registration Profile, Customer acknowledges that Service Provider may suspend all services hereunder until payment is made or until Critical Impact terminates this Agreement, and such remedy will be in addition to any other right or remedy which Critical Impact may have against Customer in law or equity. “Service Registration Profile” will mean information maintained by Critical Impact about Customer’s account and the parameters by which services are provided to Customer, including, without limitation, Customer’s billing information, as specified by Customer during initial registration or as updated by Customer at any time during the Term by the procedures made available through the Critical Impact Web site.
5.4 “Customer Operating Expenses.” Customer will bear all expenses incurred in performance of its obligations hereunder, including, without limitation, through use by Customer and/or any Authorized User of the Application Service, and/or through provision of support to Authorized Users with respect to such use of the Application Service.
5.5 “Taxes.” Customer will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Critical Impact’s income), and any related penalties and interest for the grant of license rights hereunder, or the delivery of related services. Customer will make all required payments to Critical Impact free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to Critical Impact will be Customer’s sole responsibility, and Customer will, upon Critical Impact’s request, provide Critical Impact with official receipts issued by the appropriate taxing authorities, or such other evidence as Critical Impact may reasonably request, to establish that such taxes have been paid.
5.6 “Late Payments; Interest; Payment in Dollars.” Any portion of any amount payable hereunder that is not paid when due will accrue interest at one and one-half (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. All payments to be made under this Agreement shall be made in US dollars. In the event that any portion of the amount payable hereunder is not paid within 30 days from the date of invoice, Critical Impact reserves the right to suspend without notice all Customer access to the service. In the event that two or more invoices exceed 30 days “past due” status, Critical Impact may, exclusively at its option,: (i) entirely suspend the Customer’s service (ii) cancel this contract (iii) require advance quarterly payments for future invoices.
5.7 “Invoice Disputes.” If Customer disputes any portion of an invoice or any other amount due under this Agreement, Customer shall notify Critical Impact within thirty (30) days after receipt of the invoice or from the payment due date with an explanation of the nature of the dispute. Unless a written notice of a dispute as to invoice or due amounts is received by Critical Impact within such thirty (30) day period, the invoice or amount due shall be deemed correct and payable in full by Customer.
TREATMENT OF CONFIDENTIAL INFORMATION
6.1 “Ownership of Confidential Information.” The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party.
6.2 “Mutual Confidentiality Obligations.” Each Party agrees as follows: (i) to use Confidential Information disclosed by the other Party only for the purposes described herein; (ii) that such Party will not reproduce Confidential Information disclosed by the other Party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (iv) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy, pursuant to Section 10.5, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement. Notwithstanding the foregoing, Customer agrees that Critical Impact may collect aggregated statistical data regarding Customer’s use of the Service and provide such aggregated statistical data to third parties. In no event shall Critical Impact provide to third parties specific data regarding Customer or Customer’s Authorized Users.
6.3 “Confidentiality Exceptions.” Notwithstanding the foregoing, the provisions of Sections 6.1 and 6.2 will not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do. Customer also acknowledges and agrees that Critical Impact may freely use any comments, ideas and/or error reports provided by Customer to Critical Impact and such comments, ideas and/or error reports shall not be considered proprietary to Customer.
REPRESENTATIONS AND WARRANTIES
7.1 “General Representations.” Each Party hereby represents and warrants (i) it has the legal power to enter into the Agreement, (ii) the signatory hereto has the authority to bind the applicable Party, (iii) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY.
8.1 “Disclaimer.” EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTION 7, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION SERVICE, THE APPLICATION DOCUMENTATION, AND ALL SERVICES PERFORMED BY CRITICAL IMPACT ARE PROVIDED “AS IS,” AND CRITICAL IMPACT DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. CRITICAL IMPACT DOES NOT WARRANT THAT THE APPLICATION SERVICE OR ANY OTHER SERVICES PROVIDED BY CRITICAL IMPACT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. CRITICAL IMPACT’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CRITICAL IMPACT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
8.2 “Exclusions of Remedies; Limitation of Liability.” IN NO EVENT WILL CRITICAL IMPACT BE LIABLE TO CUSTOMER 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 DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF BASED ON NEGLIGENCE OR IF CRITICAL IMPACT 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 AND CRITICAL IMPACT SHALL HAVE NO LIABILITY TO CUSTOMER IN THE EVENT CUSTOMER HAS VIOLATED THE ANTI-SPAM POLICY. THE CUMULATIVE LIABILITY OF CRITICAL IMPACT TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE LESSER OF THE AGGREGATE SUMS PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY OR TEN THOUSAND DOLLARS (US $10,000.00). THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. 8.3 “Essential Basis of the Agreement.”Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 8 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
9.2 “Exclusions of Remedies; Limitation of Liability.” Customer agrees to hold, harmless, indemnify, and, at Critical Impact’s option, defend Critical Impact from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from a Customer Indemnity Responsibility, provided that Critical Impact promptly notifies Customer in writing of the claim, cooperates with Customer, and allows Customer sole authority to control the defense and settlement of such claim; provided that Customer will not settle any third-party claim against Critical Impact unless such settlement completely and forever releases Critical Impact from all liability with respect to such claim or unless Critical Impact consents to such settlement, and further provided that Critical Impact will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.
9.3 “Infringement Remedy.” If the Application or any portion thereof are held to constitute an infringement and their use is enjoined, Critical Impact will have the obligation to, at its option: (i) modify the infringing system, equipment or software at its own expense, without impairing in any respect the functionality or performance, so that it is non-infringing; (ii) procure for Customer and Customer’s End Users at Customer’s expense the right to continue to use the infringing system, equipment or software; or (iii) replace the system, equipment or software with equally suitable, non infringing system, equipment or software. If none of the foregoing alternatives is commercially reasonable, the license granted hereunder to Customer will be terminated and Critical Impact’s sole liability to Customer will be to return only the fees paid by Customer during the six (6) months prior to the infringement prorated over the six (6) month period. In no event shall Critical Impact have any obligation to remedy any infringement if such infringement is the result of Customer’s use or integration of 3rd Party software or services which render such use infringing.
TERM AND TERMINATION.
10.1 “Term.” The term of this Agreement will commence on the Effective Date and will continue until the earlier to occur of (i) a period of one (1) year thereafter; or (ii) expiration of all Access Terms under all outstanding Order Forms and Addenda (the “Initial Term”), unless earlier terminated in accordance with this Section 10. The Agreement will automatically renew for successive one (1)-year terms, unless either Party provides written notice of its desire not to renew at least ninety (90) days prior to the expiration of the then-current term (the Initial Term, together with any renewal terms, collectively, the “Term”). The Access Term specified in any given Order Form Agreement will automatically renew for successive one (1)-year terms after the expiration of the initial Access Term specified in the applicable Order Form, unless either Party provides written notice of its desire not to renew at least ninety (90) days prior to the expiration of the then-current Access Term specified in any given Order Form. For any Access Term that is yearly, either Party may elect to terminate the Order Form for that Application Service by giving the other Party at least ninety (90) days advance written notice of its intent to do so before the expiration of the applicable Access Term.
10.2 “Termination for Breach.” Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party; specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30)-day period. In the case of a material breach of contract by the Customer through an act of sending SPAM whether through the Critical Impact servers or elsewhere, Critical Impact may immediately and permanently terminate this agreement and suspend all email transmission functions within the Customer’s account(s) with or without notice to the Customer.
10.3 “Liquidated Damages.” In cases where these Terms are breached and the calculation of actual damages would be impossible, the following corresponding liquidated damages, which are a reasonable pre-estimate of the damages, will apply:
If you don’t pay an amount due within thirty (30) days after we send you a late payment notice, then the liquidated damages will be three times the total amount you paid us over the past 12 months, but not less than $540 plus the amount owed.
10.4 “Complaints from Third Parties.” Messages that you send through the platform may generate spam or other complaints from recipients. As a matter of privacy, we cannot share with you information about those recipients who complain about your messages, surveys, events or campaigns. You are responsible for ensuring that your messages, surveys, events or campaigns do not generate a number of spam or other complaints in excess of industry norms. We may terminate your access to or use of our platform or Services if we determine that your level of spam or other complaints are higher than industry norms, as determined by us in our sole discretion (such determination shall be final, binding and conclusive for all purposes under this Agreement).
10.5 “Suspension of Access.” Critical Impact may suspend access to the Application Services in the event any amount due under this Agreement is not received by Critical Impact within ten (10) days after it was due.
10.6 “Termination Upon Bankruptcy or Insolvency.” Either Party may, at its option, terminate this Agreement immediately upon written notice to the other Party, in the event (i) that the other Party becomes insolvent or unable to pay its debts when due; (ii) the other Party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other Party discontinues it business; or (iv) a receiver is appointed or there is an assignment for the benefit of such other Party’s creditors.
10.7 “Effect of Termination.” Upon any termination of this Agreement: (i) Customer will immediately discontinue all use of the Application Service, the Application Documentation, and any Critical Impact Confidential Information; (ii) Customer will delete any Critical Impact Confidential Information from Customer’s computer storage or any other media including, but not limited to, online and off-line libraries; (iii) Critical Impact will delete any Customer Confidential Information and Customer Content from Critical Impact’s computer storage or any other media including, but not limited to, online and off-line libraries (iv) return to Critical Impact or, at Critical Impact’s option, destroy, all copies of the Application Documentation and any Critical Impact Confidential Information then in Customer’s possession; and (v) promptly pay to Critical Impact all amounts due and payable hereunder.
10.8 “Survival.” The provisions of Sections 2.6, 6, 7.1, 8, 9, 10.7, 10.8, and 11 will survive the termination of this Agreement.
11.1 “Entire Agreement.” This Agreement sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.
11.2 “Independent Contractors.” In making and performing this Agreement, Customer and Critical Impact act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of, the other Party.
11.3 “Notices.” All notices required by or relating to this Agreement will be in writing and will be sent by means of certified mail, postage prepaid, to the Parties at their respective addresses set forth in the preamble to this Agreement, or addressed to such other address as the receiving Party may have given by written notice in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by facsimile and/or other electronic communications provided that the sender receives and retains confirmation of successful transmittal to the recipient. Such notices will be effective on the date indicated in such confirmation. In the event that either Party delivers any notice by means of facsimile transmission or other electronic means in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving Party, addressed as set forth above or to such other address as the receiving Party may have previously substituted by written notice to the sender.
11.4 “Amendments; Modifications.” This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.
11.5 “Assignment; Delegation.” Customer shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of Critical Impact, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect.
11.6 “No Third Party Beneficiaries.” The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
11.7 “Severability.” If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
11.8 “Waiver.” No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.
11.9 “Force Majeure.” Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, Internet access outside of Critical Impact’s control, war, terror, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than ninety (90) days, the other Party may terminate this Agreement upon thirty (30) days written notice.
11.10 “Governing Law.” THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF VIRGINIA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. FOR PURPOSES OF ALL CLAIMS BROUGHT UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN ARLINGTON COUNTY, VIRGINIA.
11.11 “U.S. Government End-Users.” Each of the Application Documentation and the software components that constitute the Application Service is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Application Service and the Application Documentation with only those rights set forth therein.
11.12 “Counterparts.” This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.
11.13 “Headings.” The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.
11.14 “Publicity.” Neither party may issue press releases or any other public announcement of any kind relating to the Agreement without the other party’s prior written consent.
11.15 “Arbitration.” The Parties agree that all disputes between Customer and Critical Impact will be resolved exclusively by submission to binding arbitration pursuant to the rules of the American Arbitration Association (“AAA”). Our dispute shall be determined by arbitration in Fairfax County, Virginia before a solo arbitrator, in accordance with the laws of the Commonwealth of Virginia.
11.16 “Further Action.” Customer agrees to execute any and all documents and take any other actions reasonably required to effectuate the purposes of this Agreement.
11.17 “No Changes in Terms.” These terms and conditions are definite and will not be changed at the request of any Customer.
11.18 “No Agency Formed.” No agency, partnership, joint venture, or employment is created as a result of this Agreement, and you do not have any authority of any kind to bind us in any respect whatsoever.
11.19 “Attorney’s Fees.” If either party hereto files a legal proceeding arising out of or relating to the Agreement or its subject matter, the prevailing party (as adjudged by a court or other fact finder) shall be entitled to an award of all costs and expenses incurred in connection with such proceeding, including but not limited to reasonable attorneys’ fees and expert witness fees.
11.20 “Counterparts.” This Agreement may be executed in counterparts, which taken together shall form one legal instrument. Delivery of an executed counterpart signature page of this Agreement by facsimile, email, or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.