NIMBLE
TERMS OF SERVICE
Last updated: 19 April, 2023
These Terms of Service (the “Terms”) apply to, and govern, the Order (defined below) to which they are attached, hyperlinked, or otherwise incorporated by reference. These Terms are hereby incorporated by reference into, and made a part of, such Order. These Terms and the Order, together with any annex, schedule or exhibit, are collectively referred to as this “Agreement”. The Agreement constitutes a binding agreement between The Data Company Technologies Inc. (or, if applicable, the other Nimble entity specified in the Order) (“Company”, “we”, “us”, or “our”) and the customer entity specified in the Order (“Customer” “you”, or “your”). Company and Customer may be collectively referred to herein as the “Parties”, and each individually as a “Party”.
An individual entering into this Agreement on behalf of the Customer, represents that he/she has the right, authority and capacity to act on behalf of the Customer and to bind the Customer to this Agreement.
1. DEFINITIONS
“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of, the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
“Content” means any text, data, information, lists, reports, files, images, graphics, software code, or other content.
“Customer Content” means any Content submitted or uploaded to, or transmitted through, the Service, or otherwise provided or made available to Company, by or on behalf of Customer.
“Order” means any order form, sales order, quote, or other ordering documents for the provision of the Service, which is executed by the Parties (whether offline or online).
“Service” means our data delivery platform, known as Nimble, and associated application programming interfaces (APIs), software, tools, platforms and Content that we make available to you in connection therewith.
“Service Content” means any Content (excluding Customer Content) appearing on or in, or otherwise provided or made available via, the Service. Unless the context requires otherwise, references herein to the “Service” shall be deemed to include the Service Content.
2. REGISTERING FOR THE SERVICE
If defined in the Order, and as per the selected subscription model, in order to access the Service, you must register according to our procedures and provide us with certain information (such as identification or contact details). Once registered, you will be issued certain access credentials to access the Service. You must keep the access credentials confidential and you may not sell, share, transfer, sublicense or otherwise make the access credentials available to others. You are responsible for all activities that occur using your access credentials.
3. SUBSCRIPTION
a) General. Subject to the terms and conditions of this Agreement (including without limitation your payment of all applicable Fees), Company grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right and license, during the Subscription Term (defined below), to internally access and use the Service for Customer’s end use (the “Subscription”).
For the avoidance of doubt: (x) the Subscription is subject to whatever usage or consumption limitations and parameters (for example, number of users, number of API calls, available features and functionalities, etc.) may be specified in the Order (the “Subscription Scope”), and you shall not use any technical or other means within, or external to, the Service to exceed or circumvent the Subscription Scope, and (y) the Service is only licensed or provided on a subscription licensed basis (and is not sold) hereunder.
b) Usage Restrictions. When you get access to the Service for your direct use, as a condition to (and except as expressly permitted by) the Subscription, Customer shall not do (or permit or encourage to be done) any of the following Subscription restrictions (in whole or in part): (i) copy, create public Internet “links” to, “frame”, or “mirror” the Service; (ii) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Service or Service Content to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (iii) publicly perform, display or communicate the Service; (iv) modify, adapt, translate, or create a derivative work of the Service; (v) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code, non-literal aspects, or other underlying components (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Service; (vi) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Service; (vii) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Service; (viii) use the Service to develop any service or product that is the same as (or substantially similar to), or otherwise competitive with, the Service; (ix) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Service, or use any robot, spider, scraper, harvesting, or any other automated means to access the Service; (x) employ any hardware, software, device, or technique to pool connections or reduce the number of users, API Calls, or endpoints that directly access or use the Service (sometimes referred to as ‘virtualisation’, ‘multiplexing’ or ‘pooling’); (xi) forge or manipulate identifiers in order to disguise the origin of any Customer Content; (xii) take any action that imposes or may impose (as determined in Company’s reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Service, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure; (xiii) use the Service in connection with any stress test, penetration test, or vulnerability scanning, or otherwise publish or disclose (without Company’s prior express written approval) any of the results of such activities or other performance data of the Service; (xiv) use the Service to circumvent the security of another person’s network/information, develop malware, unauthorized surreptitious surveillance, data modification, data exfiltration, data ransom or data destruction; or (xv) use the Service to violate any applicable law or any third party rights, including, without limitation, global or local privacy and data protection laws.
c) Abusive Conduct. Without limiting anything of the aforesaid, Customer shall not, directly or indirectly, by itself or by others, allow, perform or facilitate any abusive or illegal usage of the Service or via the Service, including violation of third party rights.
The Parties acknowledge and agree that Company may make avaibale from time to time, binding Acceptable Use Policy to apply to the user of the Service.
d) Delivery and Hosting. The Service is made available to you electronically via the cloud. Any software (or other goods) delivered to you, shall be deemed accepted upon delivery. The hosting of the Service (and related processing) may be provided by a third party cloud hosting provider selected by Company (“Hosting Provider”).
e) Features and Functionalities. We may, from time to time, modify and replace the features and functionalities (but not material functionalities to which you are entitled under the Order, unless it improves the material functionality), as well as any user interface, of the Service. Some features and functionalities may be restricted by geography or otherwise, in order for us to comply with applicable law or commitments to third parties. You acknowledge and agree that your purchase hereunder is not contingent on the delivery of any future functionality or feature, or dependent on any oral or written statements made by or on behalf of Company regarding future functionalities or features.
f) Monitoring. You acknowledge and agree that we and/or our Affiliates may (however not obliged) monitor any Service from our own systems to ensure quality, improve our products and services, and ensure compliance with this Agreement. You will not interfere with this monitoring and we may use any technical means to overcome such interference.
4. CUSTOMER CONTENT
a) Ownership and License. As between you and Company, you are the exclusive owner of your Customer Content. You hereby grant to Company and its Affiliates a worldwide, non-exclusive, royalty-free, paid-up, sublicensable (to our data subprocessors, Hosting Providers, as well as to our third party service providers engaged by us in the provision of Services), irrevocable right and license to copy, process, create derivative works of, modify, adapt, and otherwise use your Customer Content: (A) during the Term of this Agreement, for the purpose of performing under this Agreement (for example, using your datasets in order to train custom models); and/or (B) on a perpetual basis, for the purpose of generating Usage Statistics, as well as generally enhancing the Service (such as developing new features and functionalities).
b) Responsibility. You are, and shall always remain, solely responsible and liable for your Customer Content, including without limitation for its accuracy, legality, and quality, and for ensuring your Customer Content does not violate any applicable laws or third party rights. Without limiting the generality of the foregoing:
(i) you will ensure that you only provide or make available to us personal data or other personally identifiable information if strictly required for you to use the Service; and
(ii) you will ensure, and hereby represent and warrant, that: (A) no processing of Customer Content under this Agreement (whether by us, our Affiliates, or if applicable the Hosting Provider) will violate any law, proprietary right, or privacy right; and (B) you have obtained and will maintain all required consents and licenses, and will maintain all ongoing legal bases under any applicable privacy laws, necessary to grant us the licenses herein, and to provide, make available, and otherwise expose Customer Content to us, our Affiliates, and the Hosting Provider (if applicable), and those necessary for you to make use of any personal data collected by you (if any).
c) Data Location. Customer Content may be hosted and processed by Company and its respective third party service providers in Israel, the United States, the European Economic Area (EEA), the United Kingdom, and other locations around the world.
d) Data Storage. The Service is not intended to, and will not, operate as data storage or archiving product or service, and you agree not to rely on the Service for the storage of any Customer Content whatsoever. Customer is solely responsible and liable for the maintenance and backup of all Customer Content.
5. DATA PROTECTION
a) Customer Data. For the purpose of providing the Service, including issuing and managing the account, executing upon the Agreement and fulfilling Company’s obligations under this Agreement, Company will process, store and otherwise use certain personal data of Customer’s personnel. Such personal data may include identifiers, contact details and user information, such as Account username and/or activity logs (“Customer Data”). Company’s Privacy Policy (available at: [add s link] ) governs the processing of Company Data, and the lawful basis for such processing shall be the purpose of engaging in a contract and fulfilling the Parties’ contractual obligations. Any other potential processing of personal data, other than Company Data (including Customer Content), shall be governed by the Company’s Data Processing Agreement (DPA), attached and incorporated into this Agreement.
b) Customer Content. Customer hereby warrants and represents that Customer is the sole responsible to ensure that any data collecton practices it employs, whether via the Service or otherwise in connection with the Service, are in full compliance with any applicable, local or global, data protection legislation. This includes, however not limited, to (i) complying at all times with the EU and the UK General Data Protection Regulation (jointly, the “GDPR”), the European Privacy and Electronic Communications Directive (“ePrivacy”), the California Consumer Privacy Act and Privacy Rights Act (the “CCPA” and “CPRA” respectively); (ii) provide all appropriate notices, privacy policies, other transparency obligations, privacy rights of individuals and will obtain necessary consents and/or other legal bases for processing of personal data, where applicable.
6. PAYMENT
a) Fees. You agree to pay Company the fees and other charges set forth in the Order (the “Fees”).
b) Payment Terms. Unless expressly stated otherwise in the Order or these Terms: (a) all Fees are stated, and are to be paid, in US Dollars; (b) all Fees are shall be paid in advance at the commencement of each billing cycle (except for Fees for overages, which are charged in arrears); (c) all payments and payment obligations under this Agreement are non-refundable, and are without any right of set-off or cancellation; and (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of the rate of one and a half percent (1.5%) per month or the highest amount permitted by applicable law. If we do not collect a credit card, debit card, or another payment method from you at the time of purchase (a “Payment Method”), we will invoice you for the Fees, and we shall be entitled to do so via email to the applicable Customer contact email address specified in the Order and/or via functionality of the Service. If you believe that we have invoiced you incorrectly, you must contact us no later than ten (10) days after receiving the invoice in which the alleged error appeared; otherwise you shall be deemed to have waived all claims in connection with the applicable invoice and payment.
c) Taxes. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon our net income. You must provide a valid tax exemption certificate if claiming a tax exemption. In the event that you are required by any Law to withhold or deduct taxes for any payment under this Agreement, then the amounts due to us shall be increased by the amount necessary so that we receive and retain, free from liability for any deduction or withholding, an amount equal to the amount it would have received had you not made any such withholding or deduction.
d) Payment Processing. You represent and warrant that all payment and billing information provided is (and will remain) complete and accurate, and you have the right to use, and have obtained all necessary consents to enable, the necessary Payment Method, and make your purchase with such Payment Method. If applicable to the Payment Method, payment of Fees may be processed through a third-party payment processing service (which will receive and process your billing information), and additional terms may apply to such payments. You authorize us (and/or our designee) to: (a) request and collect payment (and to otherwise take other billing actions, such as refunds) from you on a recurring basis; and (b) make any inquiries we deem necessary, from time to time, to validate your designated Payment Method or financial information, in order to ensure timely payment of Fees (including, but not limited to, for the purpose of receiving updated payment details from your payment, credit card, or banking account provider – such as updated expiry date or card number). You acknowledge and agree that we are not responsible for how any third-party payment processor transmits, stores, uses, or shares your Payment Method information.
e) Reporting. We may issue Subscription- and Fee-related reporting and billing notices via email to the applicable Customer contact email address specified in the Order, as well as via functionality of the Service.
7. COMPANY OWNERSHIP
We (and/or our licensors and suppliers, as applicable) are, and shall be, the sole and exclusive owner of all rights, titles and interests (including without limitation all intellectual property rights) in and to: (a) the Service (and all underlying intellectual property); (b) the Service Content; (c) our Confidential Information; (d) any suggestions, ideas, corrections, enhancement requests, or other feedback for or about the Service (collectively, “Feedback”); (e) Usage Statistics; and (f) any improvements, derivative works, enhancements, and/or modifications of/to any of the foregoing, in each case regardless of inventorship or authorship. You shall procure the assignment (and hereby irrevocably assign) to us (and/or our designee(s)) the ownership rights set forth in this Section (Company Ownership), and undertake to do all things reasonably requested by us (including without limitation executing, filing, and delivering instruments of assignment and recordation), at our reasonable expense, to perfect such ownership rights.
8. CONFIDENTIALITY
a) General. Either Party may disclose or otherwise make available certain confidential information (“Confidential Information”) under this Agreement and shall, in doing so, be referred to as the “Discloser” hereunder. The other Party when receiving Confidential Information shall be referred to as the “Recipient”. For the avoidance of doubt, disclosures by, to, or between the Parties’ respective Affiliates shall also be deemed Confidential Information and be subject to this Agreement.
b) Exclusions. Confidential Information shall not include any information that: (a) is lawfully known by the Recipient at the time of disclosure, on a non-confidential basis; (b) is or becomes, through no fault of the Recipient, available to the general public; (c) is independently developed by the Recipient without use or reference to Confidential Information; or (d) is rightfully disclosed to Recipient on a non-confidential basis by a third party.
c) Safeguarding. The Recipient shall not use the Confidential Information for any purpose, except to perform under this Agreement and/or as otherwise expressly permitted by this Agreement. To maintain the confidentiality of the Discloser’s Confidential Information, Recipient agrees to use the same degree of care it employs for the protection of its own Confidential Information (and in any event, a reasonable degree of care), and to procure that all such measures and safeguards are taken by its Representatives (defined below).
d) Non-Disclosure. Recipient shall not disclose or make available any Confidential Information to any person other than to its Representatives (defined below) who have a strict need to know the Confidential Information for the purpose of Recipient performing its obligations under this Agreement, and who are bound to the Recipient by an agreement of confidentiality that contains substantially the same confidentiality obligations contained in this Agreement (or by comparable fiduciary or professional duties of confidentiality). Recipient shall remain primarily responsible and liable for its Representatives’ acts and omissions in respect of the Confidential Information, as fully as if they were the acts and omissions of Recipient itself. “Representatives” means Recipient’s and/or its Affiliates’ directors, officers, employees, professional advisors (including, without limitation, attorneys, financiers, and accountants), contractors, and agents.
e) Compelled Disclosure. Recipient may disclose Confidential Information to the minimum extent required by a Legal Requirement; provided, however, that before Recipient does so disclose it shall, to the extent legally permitted, use reasonable endeavors to give the Discloser as much notice of such disclosure as possible, and reasonably assist Discloser in seeking a protective order or another appropriate remedy. “Legal Requirement” means (a) an order of any court of competent jurisdiction, any regulatory, judicial, governmental or similar body, or any taxation authority of competent jurisdiction, (b) the rules of any listing authority or stock exchange on which its shares or those of any of its Affiliates are listed or traded, and/or (c) the laws or regulations of any country to which its affairs or those of any of its Affiliates are subject.
f) Return/Destruction of Confidential Information. Promptly following written request by Discloser at any time (including within a reasonable time following termination of this Agreement), Recipient shall, as reasonably directed, return, destroy, and/or permanently delete all Confidential Information in its possession or control, and shall thereafter, upon written request, have one of its officers certify in signed writing compliance with the foregoing. Notwithstanding the foregoing, the Recipient may retain an archival copy of Confidential Information solely to the extent that: (a) such archival copy is contained in electronic files as part of the Recipient’s regular data backup or archiving procedures, and/or (b) such retention is required by any Legal Requirement; and in each of the foregoing cases under paragraphs (a) and (b), provided further that the Recipient shall refrain from accessing or using such Confidential Information, and shall treat such Confidential Information at all times in accordance with the provisions of this Agreement and shall refrain from any use thereof.
9. TERM AND TERMINATION
a) Term. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue for the duration of the Subscription Term (the “Term”). “Effective Date” means the date the Order is executed by the Parties, unless the Order itself specifies a different start/effective date; provided, however, that if the date on which you first accessed or used the service was prior to Order execution, then the Effective Date shall be deemed to be such earlier date.
b) Renewals. Unless specified otherwise in the Order, upon expiration of the Subscription term specified in the Order (the “Initial Subscription Term”), the Order and Subscription shall automatically renew for successive renewal terms of equal length (each a “Renewal Subscription Term”, and together with the Initial Subscription Term, the “Subscription Term”), unless either Party notifies the other Party in writing that it chooses not to renew (“Non-Renewal Notice”). Unless the Order states otherwise, the Non-Renewal Notice must be given at least thirty (30) days prior to the end of the then-current Subscription Term. At the commencement of each Renewal Subscription Term, we shall be entitled to charge your Payment Method (or, if applicable, invoice you) for the applicable Fees therefor.
c) Termination. This Agreement may be terminated as follows:
(A) In accordance with any termination rights specified in the Order;
(B) Either Party may terminate this Agreement for cause upon written notice if the other Party commits a material breach under this Agreement, and fails to cure such breach within fifteen (15) days after receiving written notice from the other Party alleging the breach. The foregoing 30-day cure period shall: (i) not be required if the breach is not curable; and (ii) be reduced to ten (10) days if the material breach in question is your non-payment of any Fees;
(C) Either Party may terminate this Agreement upon written notice to the other Party upon the occurrence of any of the following events in respect of such other Party: (i) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (ii) the other Party makes a general assignment for the benefit of its creditors; (iii) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (iv) the other Party is liquidating, dissolving or ceasing normal business operations; and/or
(D) We may terminate this Agreement for convenience upon thirty (30) days’ prior written notice to you. In case of such termination for convenience by us, you shall be entitled to receive a pro-rated refund of any pre-paid and unutilized Fees under this Agreement based on the remaining period of the then-current Subscription Term.
d) Suspension. We reserves the right to temporarily suspend provision of the Service: (A) if you are seven (7) days or more overdue on a payment; (B) if we deem such suspension necessary as a result of your breach of the Subscription (such as a breach under Section 3(b) (Usage Restrictions)) or your breach under Section 4 (Customer Content); (c) if we reasonably determine suspension is necessary to avoid material harm to us, to our other customers, or to the Service (for example, if the Service’s cloud infrastructure is experiencing denial of service attacks or other attacks or disruptions outside of our control); and/or (d) as required by Law or at the request of governmental entities.
e) Effect of Termination; Survival. Upon termination of this Agreement for any reason: (A) the Subscription shall automatically terminate; (B) you shall cease all access and use of the Service; and (c) you shall pay any outstanding Fees and other charges that accrued as of termination, which shall become immediately due and payable, and, if necessary we shall be entitled to charge your Payment Method (or, if applicable, invoice you) therefor. You acknowledge that following termination you may no longer have any further access to any Customer Content, and that we may (but shall not be obligated to) delete any Customer Content as may have been stored by us at any time. Any right, obligation or provision that is expressly stated to survive or that ought by its nature to survive termination of this Agreement, shall survive (including without limitation Sections 6 (Company Ownership) through 12 (Miscellaneous)). Termination shall not affect any rights and obligations accrued as of the effective date of termination.
10. WARRANTIES AND DISCLAIMER OF WARRANTIES
10. 1. Each Party represents and warrants that it will comply with applicable laws and regulations with respect to its provision or use of the Service under this Agreement and its processing and use of Customer Data. and (b) Company represents and warrants to make commercially best efforts that the Service will comply in all material respects with any technical documentation or specifications on the Order.
10.2. THE SERVICE, SERVICE CONTENT, AS WELL AS ANY OTHER GOODS AND SERVICES PROVIDED OR MADE AVAILABLE BY OR ON BEHALF OF THE COMPANY HEREUNDER (COLLECTIVELY, THE “COMPANY MATERIALS”) ARE PROVIDED AND MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL DEFECTS, AND ALL EXPRESS, IMPLIED AND STATUTORY CONDITIONS AND WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION, NON-INFRINGEMENT, OR QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE) ARE HEREBY DISCLAIMED BY COMPANY AND ITS LICENSORS.
10.3. COMPANY DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION: (A) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, TIMELINESS, COMPLETENESS, OR QUALITY OF COMPANY MATERIALS; (B) THAT CUSTOMER’S USE OF COMPANY MATERIALS WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; (C) REGARDING THE OPERATION OF ANY CELLULAR NETWORKS, THE PASSING OR TRANSMISSION OF DATA VIA ANY NETWORKS OR THE CLOUD, OR ANY OTHER CELLULAR OR DATA CONNECTIVITY PROBLEMS; (D) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY LAWS, OR OTHER GOVERNMENT OR INDUSTRY RULES OR STANDARDS; OR (E) REGARDING THE INTER-OPERABILITY OF YOUR SYSTEMS OR RESOURCES WITH THE SERVICE. COMPANY WILL NOT BE LIABLE OR OBLIGATED IN RESPECT OF DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO HOSTING PROVIDERS OR PUBLIC NETWORKS.
11. INDEMNIFICATION
Each Party agrees to defend, indemnify, and hold harmless the other Party, its Affiliates, and employees, officers, directors, agents and representatives, from and against all claims, damages, losses, liabilities, judgments, penalties, fines, costs, and expenses (including attorneys’ fees) arising from or relating to: (i) a Party’sbreach of these Terms; (ii) when applicable, misuse of the Service, Service Content, Customer Data, Customer Content; (iii) a Party’s actual or alleged infringement, misappropriation or violation of any third party’s intellectual property rights or other rights.
12. LIMITATION OF LIABILITY
a) EXCEPT FOR BREACHES OF CONFIDENTIALITY UNDER SECTION 7 (CONFIDENTIALITY), CUSTOMER’S BREACH OF THE SUBSCRIPTION (INCLUDING WITHOUT LIMITATION A BREACH UNDER SECTION 3(b) (USAGE RESTRICTIONS)), AND/OR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, OR LICENSORS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR: (A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; (B) ANY LOSS OF PROFITS, BUSINESS, OPPORTUNITY, REVENUE, CONTRACTS, ANTICIPATED SAVINGS, OR WASTED EXPENDITURE; (C) ANY LOSS OF, OR DAMAGE OR INTERRUPTION TO, DATA, NETWORKS, INFORMATION SYSTEMS, REPUTATION, OR GOODWILL; AND/OR (D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
b) THE COMBINED AGGREGATE LIABILITY OF A PARTY UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO COMPANY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.
c) THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), STRICT LIABILITY, MISREPRESENTATION, RESTITUTION, OR OTHERWISE.
13. MISCELLANEOUS
a) Entire Agreement. This Agreement (and its annexes, if any) represents the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the Parties with respect to such subject matter. In entering into this Agreement, neither Party is relying on any representation or statement not expressly specified in this Agreement. Without limiting the generality of the foregoing, this Agreement supersedes the following, each of which shall be deemed rejected, void and of no effect: (i) any shrink-wrap, click-wrap, or similar terms and conditions that accompany, or are included within, the Service, even if use of the Service requires an affirmative “acceptance” thereof (unless you are accepting these Terms as part of your initial access to the Service); and (ii) any terms or conditions (whether printed, hyperlinked, or otherwise) in any purchase order or other standardized business forms, which purport to supersede, modify, or supplement this Agreement. You shall include the Order reference/number in any purchase order issued to us. The section and subsection headings used in this Agreement are for convenience of reading only, and shall not be used or relief upon to interpret this Agreement. This Agreement may be executed in any number of counterparts (including digitally, electronically scanned and e-mailed PDF copies, and any similarly signed and electronically or digitally transmitted copies) each of which will be considered an original, but all of which together will constitute one and the same instrument.
b) Precedence. To the extent of any conflict or inconsistency between a provision in these Terms on the one hand, and a provision in the Order on the other hand, the former shall prevail (except to the extent expressly stated otherwise in the Order, or to the extent related solely to the Subscription or Service particulars of the Order, in which case the latter shall prevail).
c) Feature Specific Terms. Features and functionalities may be accompanied by separate or additional terms and conditions (in each case, “Feature Specific Terms”). Except to the extent expressly stated otherwise within Feature Specific Terms, all Feature Specific Terms apply in addition to (and not instead of) this Agreement.
d) Assignment. This Agreement may not be assigned by you, in whole or in part, without our prior express written consent. We may assign this Agreement, in whole or in part, without restriction or obligation. Furthermore, any of our obligations hereunder may be performed (in whole or in part), and any of our rights (including invoice and payment rights) or remedies hereunder may be exercised (in whole or in part), by our Affiliates. Any prohibited assignment will be null and void. Subject to the provisions of this Section (Assignment), this Agreement will bind and inure to the benefit of each Party and its respective successors and assigns.
e) Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, USA, without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. Any claim, dispute or controversy between the Parties will be subject to the exclusive jurisdiction and venue of the courts located in New York County, New York, USA and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, each Party may seek equitable relief in any court of competent jurisdiction. EXCEPT TO SEEK EQUITABLE RELIEF, PAYMENT OF FEES, OR TO OTHERWISE PROTECT OR ENFORCE A PARTY’S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, NO ACTION, REGARDLESS OF FORM, UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE DATE ON WHICH THE CORRESPONDING LIABILITY AROSE. Any claims or damages that you may have against us shall only be enforceable against us, and not any other entity or our officers, directors, representatives, employees, or agents.
f) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such provision will be ineffective solely as to such jurisdiction, and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
g) Publicity. We may use your name and logo on our website and in our promotional materials to state that you are a customer of the Service.
h) Waiver and Remedies. No failure or delay on the part of either Party in exercising any right or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof, or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing, duly signed by the waiving Party, and will be valid only in the specific instance in which given. Except as may be expressly provided otherwise in this Agreement, no right or remedy conferred upon or reserved by either Party under this Agreement is intended to be, or will be deemed, exclusive of any other right or remedy under this Agreement, at law, or in equity, but will be cumulative of such other rights and remedies.
i) Relationship. The relationship of the Parties is solely that of independent contractors, and nothing in this Agreement shall be construed to create a relationship of employer and employee, principal and agent, joint venture, franchise, fiduciary, partnership, association, or otherwise between the Parties. Except to the extent required by us in connection with the provision of the Service and/or the performance of our obligations hereunder, neither Party has any authority to enter into agreements of any kind on behalf of the other Party and neither Party will create or attempt to create any obligation, express or implied, on behalf of the other Party.
j) Force Majeure. Neither Party shall have any liability for any performance (excluding payment obligations) under this Agreement that is prevented, hindered, or delayed by reason of an event of Force Majeure (defined below). The Party so affected shall be excused from such performance to the extent that, and for so long as, performance is prevented, interrupted, or delayed by the Force Majeure. If and when performance is resumed, all dates specified under this Agreement shall be automatically adjusted to reflect the period of such prevention, interruption, or delay by reason of such Force Majeure. For purposes of this Agreement, an event of “Force Majeure” shall be defined as: (a) fire, flood, earthquake, explosion, pandemic or epidemic (or similar regional health crisis), or act of God; (b) strikes, lockouts, picketing, concerted labor action, work stoppages, other labor or industrial disturbances, or shortages of materials or equipment, not the fault of either party; (c) invasion, war (declared or undeclared), terrorism, riot, or civil commotion; (d) an act of governmental or quasi-governmental authorities (including without limitation lockdowns); (e) failure of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, shortage of adequate power or transportation facilities; and/or (f) any matter beyond the reasonable control of the affected Party. For the avoidance of doubt, any problems relating to hosting of Service by a third party is beyond the reasonable control of Company.
k) Export Control. You must not use, transfer, export, re-export, import, or divert the Service in violation of any Export Control Laws, or otherwise to: (A) Lebanon, Syria, Iran, Iraq, Sudan, Yemen, Cuba, or North Korea (or other countries specifically designated in writing by us from time to time); (B) any U.S. embargoed countries; or (C) anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or any other restricted party lists. You represent and warrant that you are not located in any such country or on any such list. “Export Control Laws” means all applicable export and re-export control Laws applicable to you and/or Company or its Affiliates, as well as the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.
l) Expense. Except as may be expressly stated otherwise in this Agreement, each Party shall pay its own costs and expenses incurred in connection with the performance of this Agreement (and any documents referred to in it).
m) Customer Resources. You shall be solely responsible: (a) for providing all hardware, software, systems, assets, facilities, and ancillary goods and services needed for you to access and use the Service; and (b) for ensuring their compatibility with the Service. In the event we become legally or contractually required to modify or replace features or functionalities of the Service in order to ensure that it complies with the terms of service or privacy policies of various platforms, networks and/or websites, you shall be responsible for making all necessary changes to your hardware, software, systems, assets, and facilities in order to continue using the Service.
n) Notices. Except as may be specified otherwise in this Agreement, all notices, consents, or other communications provided for in connection with this Agreement shall be in writing, and shall be deemed given as follows: (A) when received, if personally delivered; (B) the second business day after mailing, when mailed via either U.S. mail or registered or certified mail with postage prepaid and return receipt requested; (C) upon delivery confirmation, when delivered by nationally recognized overnight delivery service (“Courier”); (D) the second business day after sending confirmed by facsimile; or (E) the first business day after sending by email. Notwithstanding the foregoing, you agree that we may also give you notices via your Service account and/or via postings on or through the functionality of Service (and such notices shall be deemed given immediately). Notices by you to us must be given by Courier or registered mail, together with an email copy, to the following addresses:
The Data Company Technologies Inc.
N. Orange St., 10th Fl.,
Wilmington, Delaware
19801
USA
