YOUR DOWNLOAD OR CONTINUED USE OF ANY PORTION OF THE DEVELOPER TOOL OR USE OF THE SERVICE (EACH AS DEFINED BELOW) AS AN IFTTT, INC. (“WE,” “US”, “OUR”, OR “IFTTT”) DEVELOPER HEREBY (I) MEANS YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT (“YOU,” “YOUR,” “YOURS” OR “LICENSEE”) (EACH YOU AND IFTTT A “PARTY” AND COLLECTIVELY THE “PARTIES”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE TERMS OF THIS IFTTT Developer Free Tier License Agreement (THE “AGREEMENT”), AND (II) ARE HEREBY REPRESENTING AND WARRANTING THAT YOU ARE AUTHORIZED TO BIND LICENSEE. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU WILL HAVE NO RIGHT TO USE THE DEVELOPER TOOL OR THE SERVICE. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THIS AGREEMENT AND THE CHANNEL GUIDELINES FOUND AT https://platform.ifttt.com/guidelines (THE “GUIDELINES”) TO THE EXCLUSION OF ALL OTHER TERMS. WE ARE CONSTANTLY TRYING TO IMPROVE OUR SERVICE AND THE DEVELOPER TOOL, SO THIS AGREEMENT MAY NEED TO CHANGE ALONG WITH THE SERVICE AND/OR DEVELOPER TOOL. WE RESERVE THE RIGHT TO CHANGE THIS AGREEMENT AT ANY TIME, BUT IF WE DO, WE WILL BRING IT TO YOUR ATTENTION BY PLACING A NOTICE ON IFTTT.COM WEBSITE, BY SENDING YOU AN EMAIL, AND/OR BY SOME OTHER MEANS.
Subject to full compliance with the terms of this Agreement and the Guidelines, IFTTT hereby grants you a limited, personal, non-sublicensable, non-transferable, nonexclusive license to use (a) our application programming interface, (b) developer tool graphical user interface, and (c) related information and documentation (collectively our “Developer Tool”) that, in each case, you access (this will not be a download) from https://platform.ifttt.com for the sole purpose of allowing you to create an IFTTT channel (hereafter your “Licensee Channel”). Further, subject to full compliance with the terms of this Agreement, we hereby grant you a limited, personal, non-sublicensable, non-transferable, nonexclusive right to access the features, services, and applications located at ifttt.com (collectively, the “Service”) solely for the purpose of (i) creating and testing integrations of the Service (e.g., the Licensee Channel) with Licensee’s or its affiliates’ products, services, applications, and platforms (“Licensee Products”); (ii) making the Licensee Channel available to users of Licensee Products, and permitting those users to use the Licensee Channel; and (iii) in connection with the foregoing, using, performing, displaying, modifying, and demonstrating content to users of Licensee Products. The Service shall include, but not be limited to, any services IFTTT performs for you. IFTTT may also impose limits on certain features or restrict your access to parts or all of the Service. No rights or licenses are granted except as expressly and unambiguously set forth herein.
You shall not (and shall not authorize or encourage any third party to), directly or indirectly: (i) rent, lease, loan, sell, sublicense, assign, or otherwise transfer any rights in or to the Developer Tool or Service; (ii) clone the Developer Tool, or use the Developer Tool to build an application programming interface, application or product that is competitive with any IFTTT product or service; (iii) remove any proprietary notices from the Developer Tool or Service (or any portion thereof); (iv) decompile, reverse engineer, disassemble, or derive the source code, underlying ideas, concepts or algorithms of the Developer Tool or Service (except as and only to the extent the foregoing restrictions are expressly prohibited by applicable statutory law); (v) modify or create derivative works of the Developer Tool or Service; (vi) use the Service to post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any IFTTT user; (vii) use the Service to violate the security of any computer network, crack passwords or security encryption codes, transfer or store material that is deemed threatening or obscene, or engage in any kind of illegal activity; (viii) use the Service to run Maillist, Listserv, any form of auto-responder, or spam through the Service; (ix) use the Service to promote any products, services, or materials that constitute, promote or are used primarily for the purpose of dealing in: spyware, adware, or other malicious programs or code, counterfeit goods, items subject to US embargo, hate materials or materials urging acts of terrorism or violence, goods made from protected animal/plant species, recalled goods, any hacking, surveillance, interception, or descrambling equipment, cigarettes, illegal drugs and paraphernalia, unlicensed sale of prescription drugs and medical devices, pornography, prostitution, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, unlicensed trade or dealing in stocks and securities, gambling items, professional services regulated by state licensing regimes, non-transferable items such as airline tickets or event tickets, non-packaged food items, weapons and accessories; (x) use the Developer Tool or Service to violate any law or regulation, any right of any person, including but not limited to intellectual property rights, contract rights, rights of privacy, or rights of personality, or in any manner inconsistent with this Agreement or with any terms or conditions or obligations relating to any third party website, app, API or the like; (xi) use the Service to operate nuclear facilities, life support, or other mission critical application where human life or property may be at stake (you understand that the Service is not designed for such purposes and that its failure in such cases could lead to death, personal injury, or severe property or environmental damage for which IFTTT is not responsible). You hereby make all assignments necessary to accomplish the foregoing.
The Service and Developer Tool may be protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S. and other countries. IFTTT's rights apply to the Developer Tool and the Service and all interactions and functionality with IFTTT APIs. IFTTT does not claim any ownership rights to software components and content developed by you that do not themselves incorporate the Service, the IFTTT APIs or any output or executables of their use. IFTTT shall own all right, title, and interest (and all related moral rights and intellectual property rights) in and to the Developer Tool and Service including any copies and derivative works thereof. This Agreement grants you no right, title, or interest in any intellectual property owned or licensed by IFTTT, including (but not limited to) the Developer Tool, the Service, the IFTTT APIs, or IFTTT trademarks.
If you subscribe to IFTTT’s paid developer features, you (i) shall pay IFTTT all applicable fees set forth on https://platform.ifttt.com/plans (“Fees”) and (ii) hereby authorize IFTTT to charge your chosen payment method. IFTTT offers no refund or credits. Unless agreed to separately in writing, IFTTT will automatically renew annual subscriptions for an additional year at the then prevailing rates unless you cancel your subscription before the anniversary of subscription. We will provide you with fourteen days’ notice prior to the end of each annual subscription. All Fees are exclusive of taxes or duties imposed by governing authorities. You are responsible for all taxes or duties associated with your use of the Developer Tool.
You agree not to disclose (or allow access to) the Developer Tool (or any information derived therefrom) to any third party and will limit access to the Developer Tool (and any derived information) to your employees who are developing your Licensee Channel. In support of this obligation, you will apply at least the same security that you use to protect your own most confidential information.
Your right to use the Developer Tool and Service continues until expiration of your license term or it is terminated by either Party as detailed below. You may terminate this Agreement by discontinuing use of all or any of the Developer Tool or Service. We may immediately terminate your use of and access to the Developer Tool and Service if you violate any term of this Agreement. Sections 2, 3, 4 (to the extent Fees remain unpaid), 5, 9, and 13 through 17 shall survive termination.
The Developer Tool is subject to modification from time to time at IFTTT’s sole discretion for any purpose IFTTT deems appropriate. If IFTTT provides you with any upgrades, patches, enhancements, or fixes for the Developer Tool, then all items that are so provided will become part of the Developer Tool, respectively, and subject to this Agreement. Notwithstanding the foregoing, IFTTT shall have no obligation under this Agreement to provide any such upgrades, patches, enhancements, fixes or any other support for the Developer Tool.
IFTTT will use reasonable efforts to ensure that the Service is available twenty-four hours a day, seven days a week. However, there will be occasions when the Service will be interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment. IFTTT will take reasonable steps to minimize such disruption where it is within IFTTT's reasonable control. You agree that IFTTT will not be liable in any event to you or any other Party for any suspension, modification, discontinuance or lack of availability of the Service. You shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access otherwise use the Service, including, without limitation, mobile phones, modems, hardware, software, data plans, and long distance or local telephone service. You shall be responsible for ensuring that such equipment or ancillary services are compatible with the Service. As a condition to using the Service, you may be required to supply IFTTT with certain registration information. You shall provide IFTTT with your own accurate, complete, and updated registration information.
If, in the course of performing under this Agreement, Licensee provides IFTTT with any written comments, suggestions, or feedback regarding the Service (“Feedback”), you hereby grant IFTTT a non-exclusive, worldwide, royalty-free license to use and disclose the Feedback in any manner IFTTT chooses and, directly or indirectly through third parties, to display, perform, copy, have copied, make, have made, use, sell, offer to sell, and otherwise dispose of IFTTT’s products (including any improvements or modifications thereof) embodying the Feedback in any manner and via any media the IFTTT chooses, but without reference to you as the source of the Feedback.
The aforementioned license grant does not guarantee we will publish any Licensee Channel. Any Licensee Channel’s publication is subject to the Guidelines found at https://platform.ifttt.com/guidelines. Additionally, we reserve the right to take any Licensee Channel offline if we discover it violates our Guidelines. We reserve the right to periodically update our Guidelines.
Subject to each Party’s express prior written consent, Parties may use each Party’s specified branding assets and trademarks in accordance with each Party’s trademark usage guidelines (for example to promote Licensee’s Channel page); provided that each Party will have the right to perform quality assurance inspections of each usage and to withhold and/or suspend rights to use such branding asset or trademark if quality is not satisfactory to each Party in their sole discretion.
Each Licensee Channel must use commercially reasonable efforts to maintain compatibility with the Developer Tool and the Service including changes provided to you by IFTTT, which shall be implemented in each Channel promptly thereafter. If any Licensee Channel uses or implements an outdated version of the Developer Tool or the Service, you acknowledge and agree that such Licensee Channel may not be able to communicate with the Service. Furthermore, in order to ensure a positive user experience, you will notify IFTTT within 30 days of determining that your App has compatibility issues with the Developer Tool and/or Service that might negatively affect any Licensee Channel. If you cannot remedy the compatibility issue within a commercially reasonable period or choose not to remedy the compatibility issue, you will cooperate with IFTTT to notify Licensee Channel users that your License Channel is experiencing problems or will cease to exist (as applicable).
In using the Service, you may gain access to third party sites on the Internet through hypertext or other computer links on the Service. Third party sites are not within the supervision or control of IFTTT. IFTTT does not make any representation or warranty whatsoever about any third party site that may be linked to or from Service. IFTTT has no special relationship with or fiduciary duty to you. You acknowledge that IFTTT has no control over, and no duty to take any action regarding: which users gain access to the Service; what content you access via the Service; what effects that content may have on you; how you may interpret or use that content; or what actions you may take as a result of having been exposed to that content. IFTTT makes no representations concerning any content contained in or accessed through the Service, and IFTTT will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Service.
IFTTT PROVIDES THE DEVELOPER TOOL AND SERVICE “AS IS” AND WITHOUT WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL IFTTT OR ITS LICENSORS, SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, OR DAMAGES RESULTING FROM LICENSEE’S USE OF ANY SUBJECT MATTER COVERED BY THIS AGREEMENT. IFTTT’S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED IN THE AGGREGATE TO AMOUNTS PAID (PLUS AMOUNTS PAYABLE, IN THE EVENT OF YOUR BREACH ONLY) TO IFTTT IN RELATION TO THE DEVELOPER TOOL DURING THE TWELVE (12) MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING WILL NOT APPLY TO DAMAGES FOR BODILY INJURY THAT, UNDER APPLICABLE LAW, CANNOT BE SO LIMITED. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF YOU HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
This Agreement applies to your use of all the Services, including the iOS applications (“Mobile App”) available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply:
(a) Both you and IFTTT acknowledge that this Agreement is concluded between you and IFTTT only, and not with Apple, and that Apple is not responsible for the Mobile App;
(b) The Mobile App is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of this Agreement as it is applicable to the Services;
(c) You will only use the Mobile App in connection with an Apple device that you own or control;
(d) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Mobile App;
(e) In the event of any failure of the Mobile App to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Mobile App;
(f) You acknowledge and agree that IFTTT, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Mobile App;
(g) You acknowledge and agree that, in the event of any third party claim that the Mobile App or your possession and use of the Mobile App infringes that third party’s intellectual property rights, IFTTT, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
(h) You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
(i) Both you and IFTTT acknowledge and agree that, in your use of the Mobile App, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
(j) Both you and IFTTT acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and that upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as the third party beneficiary hereof.
This Agreement represents the complete agreement concerning the subject matter hereof between the parties and supersedes all prior agreements and representations between them. For all purposes of this Agreement, you and IFTTT shall be and act independently and not as partner, joint venturer, agent, employee or employer of the other. You shall not have any authority to assume or create any obligation for or on behalf of IFTTT, express or implied, and you shall not attempt to bind IFTTT to any contract. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of IFTTT to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit IFTTT’s rights with respect to such breach or any subsequent breaches. Either party may assign this Agreement without consent pursuant to a merger or sale of substantially all assets related to the subject matter of this Agreement. This Agreement shall be governed by and construed under California law as such law applies to agreements between California residents entered into and to be performed within California. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in San Francisco, California; Licensee hereby agrees to service of process in accordance with the rules of such courts. The Party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.
As of February 27, 2020 This agreement (“Agreement”) is between IFTTT Inc. with its principal place of business at 923 Market Street, San Francisco, CA 94103 (“Company”), and the Customer named in the Order Form (“Customer”) invoked when choosing to license the IFTTT Developer Plan. This Agreement includes and incorporates the portions of the IFTTT Developer Platform available to users of the IFTTT Developer Plan and entitles Customer to use the IFTTT Platform to publish one (1) Service with triggers, actions, and queries, access API performance and health dashboards, and receive support assistance through the community forums provided by IFTTT. This Agreement includes the Terms and Conditions found below and contains, among other things, warranty disclaimers, liability limitations and use limitations. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof. Each party’s acceptance of this Agreement was and is expressly conditional upon the other’s acceptance of the terms contained in the Agreement to the exclusion of all other terms.
1.1 Subject to Customer’s full compliance with all terms and conditions of this Agreement and IFTTT’s (“Company’s”) developer guidelines found at https://platform.ifttt.com/guidelines (the “Guidelines”), Company hereby grants Customer a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to access and use the Platform for integrating and operating Customer’s products and services (the “Customer Services”) into and through the Platform solely for use by Customer’s end users and other purposes separately authorized by Company in writing. The Platform is subject to modification from time to time at Company’s sole discretion for any purpose deemed appropriate by Company. Company will use reasonable efforts to give Customer prior notice of material modifications.
1.2 Subject to Customer’s full compliance with all terms and conditions of this Agreement and the Guidelines, Company shall use commercially reasonable efforts to (i) make the Platform available to Customer. Notwithstanding the foregoing, Company may suspend Customer’s access to the Platform (a) for scheduled or emergency maintenance or (b) in the event Customer is in material breach of this Agreement, including failure to pay any amounts due to Company. Company will use commercially reasonable efforts to provide notice to Customer prior to any scheduled maintenance.
1.3 The parties acknowledge that certain information is to be provided by Customer (“Customer Data”). Further, Customer acknowledges that the Platform may contain links and features that connect to third party websites, products, or services (“Third Party Products”). Company may provide tools and features that enable Customer to import and export Customer Data and other information from and to Third Party Products, including by linking Customer’s account on the Platform with accounts or features of Third Party Products. By using such tools and features, Customer authorizes Company to transfer such Customer Data and other information to and from Third Party Products. Third Party Products are not under Company’s control. This Agreement is not binding upon such third parties, and Company does not endorse such third parties. COMPANY IS NOT RESPONSIBLE, AND HEREBY DISCLAIMS ALL IMPLIED AND EXPRESS WARRANTIES, FOR THE ACTIONS OR INACTIONS OF SUCH THIRD PARTIES OR THE CONTENTS OR PERFORMANCE OF ANY THIRD PARTY.
1.4 Company will not be liable for its failure to perform hereunder this Agreement if such failure is caused by the Customer Services and/or Customer’s delay in or failure to provide Customer Data. Customer grants Company a world-wide, non-exclusive, royalty-free license during the Term to use and distribute Customer Data solely for the purpose of fulfilling Company’s obligations hereunder this Agreement. Company may use aggregated and de-identified Customer Data solely for the purpose of improving the Platform. Customer represents and warrants that it owns all right, title and interest in and to the Customer Data and Customer Services
1.5 Each party hereby grants the other party a worldwide, royalty-free, sublicensable (as limited below), license to use the other party’s specified branding assets and trademarks, in accordance with such party’s provided trademark usage guidelines, solely for those purposes reasonably necessary for: (i) Company to provide and operate the Platform; and (ii) Customer to use the Platform and promote the Customer Services integration with the Platform; provided that each party will have the right to perform quality assurance inspections of each usage and to withhold and/or suspend rights to use such branding asset or trademark if quality is not satisfactory to each party in their sole discretion. Customer acknowledges and agrees that the foregoing Section 1.5 license permits Company to allow third-party developers to use Customer’s branding assets and trademarks solely to promote the interoperability of such third-party’s products and services with the Customer Services by way of the Platform.
2.1 Customer shall not (and shall not authorize or encourage any third party to), directly or indirectly: (i) rent, lease, loan, sell, sublicense, assign, or otherwise transfer any rights in or to the Platform; (ii) clone the Platform, or use the Platform to build an application programming interface, application or product that is competitive with any Company product or service; (iii) remove any proprietary notices from the Platform (or any portion thereof); (iv) decompile, reverse engineer, disassemble, or derive the source code, underlying ideas, concepts or algorithms of the Platform (except as and only to the extent the foregoing restrictions are expressly prohibited by applicable statutory law); (v) modify or create derivative works of the Platform; (vi) use the Platform to post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any third party; (vii) use the Platform to violate the security of any computer network, crack passwords or security encryption codes, transfer or store material that is deemed threatening or obscene, or engage in any kind of illegal activity; (viii) use the Platform to run Mailist, Listserv, any form of auto-responder, or spam through the Platform; (ix) use the Platform to promote any products, services, or materials that constitute, promote or are used primarily for the purpose of dealing in: spyware, adware, or other malicious programs or code, counterfeit goods, items subject to US embargo, hate materials or materials urging acts of terrorism or violence, goods made from protected animal/ plant species, recalled goods, any hacking, surveillance, interception, or descrambling equipment, cigarettes, illegal drugs and paraphernalia, unlicensed sale of prescription drugs and medical devices, pornography, prostitution, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, unlicensed trade or dealing in stocks and securities, gambling items, professional services regulated by state licensing regimes, non-transferable items such as airline tickets or event tickets, non-packaged food items, weapons and accessories; (x) use the Platform to violate any law or regulation, any right of any person, including but not limited to intellectual property rights, contract rights, rights of privacy, or rights of personality, or in any manner inconsistent with this Agreement or with any terms or conditions or obligations relating to any third party website, app, API or the like; or (xi) use the Platform to operate nuclear facilities, life support, or other mission critical application where human life or property may be at stake (Customer understand that the Platform is not designed for such purposes and that its failure in such cases could lead to death, personal injury, or severe property or environmental damage for which IFTTT is not responsible).
2.2 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Platform, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). Customer shall be responsible for ensuring that such Equipment is compatible with the Platform and complies with all configurations and specifications set forth in Company’s published policies then in effect. Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent. Additionally, Customer agrees to be bound by any end-user software agreements that govern the installation and use of such Equipment.
2.3 Customer will cooperate with Company in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Company may reasonably request. Customer will also cooperate with Company in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Platform.
2.4 The parties will each comply with applicable portions of the EU Data Processing policy.
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it by a third party, (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required by law. In any event, Company may use for development, diagnostic and corrective purposes any data and information it collects relating to the Platform.
3.2 Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.
3.3 Customer acknowledges that Company does not wish to receive any Proprietary Information from Customer that is not necessary for Company to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Company may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.
Except as expressly set forth herein, Company alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Platform. If, in the course of performing under this Agreement, Customer provides Company with any written comments, suggestions, or feedback regarding the Platform (“Feedback”), Customer hereby grants Company a non-exclusive, worldwide, royalty-free license to use and disclose the Feedback in any manner Company chooses and, directly or indirectly through third parties, to display, perform, copy, have copied, make, have made, use, sell, offer to sell, and otherwise dispose of Company’s products and services (including any improvements or modifications thereof) embodying the Feedback in any manner and via any media the Company chooses, but without reference to you as the source of the Feedback. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Platform or any intellectual property rights.
5.1 Customer will pay all applicable fees (“Fees”) in accordance with the instructions detailed in the Order Form. Currently applicable Fees are set forth in the Order Form. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then current Renewal Term, upon thirty (30) days prior notice to Customer (which may be sent by email).
5.2 Unpaid Fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with Platform other than U.S. taxes based on Company’s net income.
5.3 If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s Customer Support department.
6.1 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or ten (10) days in the case of nonpayment), if the other party breaches any of the terms or conditions of this Agreement. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business. Customer will pay in full for the Platform up to and including the last day on which the Platform is provided. Upon any termination, Company may, but is not obligated to, delete archived data.
6.2 The following Sections shall survive termination or expiration of this Agreement: 2.1, 2.4, 3, 4, 5 (to the extent fees remain outstanding), 6.2, 7, 8, and 9.
COMPANY DOES NOT WARRANT THAT THE PLATFORM OR ANY OTHER SERVICES PROVIDED HEREUNDER WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM OR ANY OTHER SERVICES PROVIDED HEREUNDER. THE PLATFORM AND ALL OTHER SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
8.1 Company shall indemnify, defend, and hold Customer and its respective officers, directors, and employees harmless from any and all amounts actually paid to third parties in connection with claims, liabilities, damages and/or costs (including but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) from infringement by the Platform of any United States patent or any copyright or misappropriation of any trade secret. The foregoing obligations do not apply with respect to portions or components of the Platform (i) not created by Company including Customer Data and Customer Services, (ii) resulting in whole or in part in accordance from Customer specifications, (iii) that are materially modified after delivery by Company, (iv) combined with other commercially unforeseen products, processes or materials (including Customer Services) where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of is not strictly in accordance with this Agreement. Company’s indemnification obligations under this Section are contingent on Customer providing Company: (a) prompt written notice of the claim; (b) the unconditioned right to control the defense and settlement of such claim; and (c) reasonable cooperation in the defense of such claim, at Company’s expense. Customer shall indemnify and hold harmless Company from any and all Losses resulting from (i) claims of intellectual property infringement or misappropriation caused by the foregoing Section 8.1 exclusions or (ii) Customer’s breach of Section 2.1. The indemnification obligations set forth in this Section 8.1 are Company’s sole and exclusive obligations (and Customer’s sole and exclusive remedies) with respect to infringement or misappropriation of intellectual property rights of any kind.
8.2 IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE PLATFORM OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE PLATFORM OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF COMPANY, WHETHER BASED IN CONTRACT, TO RT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE THE FEES PAID TO COMPANY HEREUNDER IN THE SIX MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9.1 This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 9.1 will be null and void.
9.2 If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
9.3 This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws’ provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
9.4 Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
9.5 No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
9.6 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
Company may use the services of subcontractors for performance of services under this Agreement, provided that Company remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Platform as required under this Agreement. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.