(Last updated and effective as of 1/14/2021)
These Subscription Terms (including the DPA (as defined below), this “Agreement”) create a legal agreement between Cloudphish, Inc. (“Licensor”) and the subscriber to the Software (as defined below) (“Customer”). This Agreement governs Customer’s use of the Software and by using or accessing the Software, Customer agrees to be bound by this Agreement. In the event that the individual accessing the Software is accessing the Software on behalf of a legal entity, such legal entity shall be the Customer hereunder, and, where Customer is not a natural person, the natural person accessing the Software on behalf of Customer hereby represents and warrants in his or her individual capacity that he or she has the authority to bind such legal entity in contract to this Agreement as Customer. Customer and Licensor are individually hereinafter referred to as a “Party” and collectively as the “Parties”.
1. SCOPE OF AGREEMENT
1.1 Software. Licensor’s proprietary software solution (together with the services, features, and information made available on or through such software solution, the “Software”) will be hosted and distributed online by Licensor and made available to Customer as a software as a service, which consists of a tool that integrates with Customer’s Designated Users’ business email accounts to provide end-to-end email validation and blockchain email authentication. Licensor will be responsible for hosting of the Software. Customer or Customer’s Designated Users (as defined below) will be responsible for providing the computer hardware, web browser (including installing any required browser extension), or mobile devices necessary to interface with the Software. This Agreement sets forth the terms and conditions that will govern Licensor’s grant of access to the Software.
1.2 Rights to Use. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable, limited, revocable license (solely through Customer’s Designated Users) to access and use the Software identified corresponding to the Software subscription purchased by Customer solely during the Term.
1.3 Ownership and Reservation of Rights. Nothing in this Agreement shall constitute a transfer of any proprietary right by Licensor to Customer. The Software may be protected by patent, copyright, trade secret, and other intellectual property laws. As between the Parties, Licensor owns and retains all right, title, and interest in and to the intellectual property rights in and to the Software (including any data and/or analytics made available through the Software) and any enhancements, modifications or derivative works thereof. As between the Parties, (i) each Party retains ownership in and to its Confidential Information (as hereinafter defined) and (ii) Licensor exclusively owns all right, title, and interest in and to the Software and any derivative works and work product conceived, originated, or prepared in connection with the Software. All rights not specifically granted to Customer in this Agreement are retained by Licensor. Customer acknowledges the proprietary rights of Licensor and its licensors in the Software and that Licensor retains all right, title and interest in and to the Software.
1.4 Third-Party Sites. The Software may link, interface, and integrate with third-party software applications and websites that are not operated or controlled by Licensor, including without limitation third-party email clients, such as Google or Microsoft (each, a “Third-Party Site”). All such Third-Party Sites shall remain the property of their third-party providers. Customer hereby acknowledges and agrees that Licensor is not responsible for the content or practices of the Third-Party Sites. Customer is solely responsible for any required third-party account setup or fees levied by any such Third-Party Sites for using their services. It shall be Customer’s responsibility to, and Customer shall, ensure that the use of the Software in connection with any such Third-Party Sites complies with any applicable terms of service. Any links to or content from Third-Party Sites in the Software are provided for Customer’s convenience only. Customer’s reliance on any Third-Party Site is at Customer’s own risk; Licensor does not endorse or warranty any Third-Party Site, including any Third-Party Site linked to, or interfaced or integrated with, the Software. Licensor reserves the right to update or remove any functionality available through the Software at any time for any reason. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ITS RELATIONSHIP WITH ANY THIRD-PARTY SITE, INCLUDING WITHOUT LIMITATION CUSTOMER’S INTERACTION WITH ANY SUCH THIRD-PARTY SITE THROUGH THE SOFTWARE. LICENSOR SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY INTERACTION WITH ANY THIRD-PARTY SITE, WHETHER THROUGH THE SOFTWARE OR OTHERWISE, BY OR ON BEHALF OF THE CUSTOMER. LICENSOR SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY PAYMENT OBLIGATIONS THAT ARISE AS A RESULT OF ANY SUCH INTERACTION, ANY LIABILITY THAT ARISES AS A RESULT OF ANY SUCH INTERACTION (INCLUDING WITHOUT LIMITATION UNDER ANY APPLICABLE TERMS OF SERVICE), OR ANY RELATIONSHIP THAT EXISTS OR COMES TO EXIST BETWEEN CUSTOMER AND ANY THIRD-PARTY SITE PROVIDER.
1.5 Feedback. Notwithstanding any provision in this Agreement to the contrary, Licensor may use, develop and implement any information, suggestions, comments, or other feedback (collectively, “Feedback”) provided to Licensor by Customer or any of its Representatives (as defined below) in connection with the development, operation, marketing and sale of the Software, in its discretion and with no compensation to any person providing such Feedback, irrespective of any intellectual property or proprietary rights claimed by Customer in such Feedback. Customer represents that it has not, and will not, knowingly provide Feedback that is subject to any third party intellectual property rights.
1.6 Changes to Software. Licensor reserves the right at any time to alter or discontinue any or all features, functionality, license terms, and other characteristics of the Software; provided, however, that in the event that any such alterations materially limit the features or functionality of the Software, Licensor shall use commercially reasonable efforts to provide Customer with advanced notice thereof. Any subsequent upgrade, enhancement or other change to the Software shall be owned by Licensor and subject to the terms of this Agreement.
1.7 Software Evaluation. Licensor may elect (in Licensor’s sole discretion) to make the Software (or a restricted version thereof) available to Customer on a limited trial basis free of charge or at a fee for the sole purpose of facilitating Customer’s internal evaluation and testing of the Software, until the earlier of (i) the end of the designated trial period for which Licensor has permitted Customer to evaluate the applicable Software, or (ii) the commencement date of any purchased Software subscriptions ordered by Customer. Licensor reserves the right to modify, cancel and/or limit the limited trial of the Software without notice at any time. Additional trial terms and conditions may appear on the trial registration web page or may otherwise be provided to Customer. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. NOTWITHSTANDING ANYTHING SET FORTH IN THIS AGREEMENT TO THE CONTRARY, DURING THE DESIGNATED TRIAL PERIOD, THE SOFTWARE AND ANY SERVICES MADE AVAILABLE TO CUSTOMER ARE PROVIDED ON AN “AS-IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS, WITHOUT ANY WARRANTY. ANY DATA CUSTOMER ENTER INTO THE SERVICES DURING CUSTOMER’S LIMITED TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASES UPGRADED SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.
2. CONFIDENTIAL INFORMATION
2.1 Definition of Confidential Information. “Confidential Information” means all information, in whatever form, that is disclosed or otherwise made available by or on behalf of one Party to the other Party, which, given the totality of the circumstances, a reasonable recipient should have reason to believe is proprietary, confidential, or competitively sensitive, regardless of whether such information is labeled as confidential or not, including without limitation, creative works, business activities, trade secrets, analysis, software, algorithms, know-how, techniques, research, developments, inventions, discoveries, processes, designs, Personal Data (as defined below), technical data and information, financial information, pricing, vendors, customers, prospects, marketing plans and any other information of a similar nature. For the avoidance of doubt, Licensor’s Confidential Information includes the Software (including the design, features, functions, and architecture thereof and any information or data made available thereon).
2.2 Access and Use. Each Party receiving Confidential Information from the other Party shall: (i) use and reproduce the Confidential Information only for the purposes specified in this Agreement, (ii) restrict disclosure of Confidential Information to its Representatives with a need to know the Confidential Information to enable the receiving Party to perform its obligations and exercise its rights under this Agreement, provided that such Representatives are bound by confidentiality obligations broad enough to encompass Confidential Information that are at least as protective as those contained in this Agreement, and (iii) use reasonable care to protect the other Party’s Confidential Information and to prevent unauthorized disclosure of such Confidential Information. Additionally, to the extent that any Party’s Confidential Information includes any information relating to any identified or identifiable natural person, household, or device (“Personal Data”), the other Party agrees to use such Personal Data solely in accordance with applicable Law.
2.3 Exclusions. Except as expressly provided herein, and except with respect to Personal Data, nothing in this Agreement will be construed to restrict or impair in any way the right of a receiving Party to disclose any information which: (i) is at the time of its disclosure hereunder generally available to the public; (ii) becomes generally available to the public through no fault of the receiving Party; (iii) can be reasonably demonstrated to be in the possession of a receiving Party prior to its initial disclosure hereunder; or (iv) is acquired from a third party having a right to disclose the same to a receiving Party without breach of any confidentiality obligation. A receiving Party may disclose Confidential Information in accordance with a legally binding judicial or other governmental order, provided that, to the extent permitted by applicable Law, such Party provides the disclosing Party with prompt notice of the same and cooperates with the disclosing Party in connection with any actions taken by the disclosing Party to protect such Confidential Information, including without limitation the seeking of an appropriate protective order or other remedy. Notwithstanding any other provision in this Agreement to the contrary, Licensor may collect and analyze data, statistics or other information obtained through the provision, use and performance of various aspects of the Software (collectively, “Analytics”) and aggregate such Analytics with data, statistics or other information obtained from other sources, and may use such Analytics for lawful business purposes, including improvement of the Software. Licensor owns all right, title, and interest in and to all Analytics and no compensation will be paid by Licensor to any person with respect to its use of Analytics.
2.4 Customer Data. During the Term, Licensor may Process certain data (whether through the Software or otherwise) solely on behalf of Customer (“Customer Data”). Customer shall be responsible for all changes to and/or deletions of Customer Data and the security of all passwords and other access protocols required in order to access the Software. Customer will be solely responsible for the accuracy and completeness of the Customer Data. Licensor shall have no obligation to maintain any Customer Data obtained in the course of providing the Software. For the avoidance of doubt and without limiting the generality of the foregoing, in no event shall Licensor have any obligation to maintain any Customer Data obtained in the course of providing the Software beyond the Term of this Agreement. Customer represents, warrants, and covenants that: (i) it has (and will have) Processed, collected, and disclosed all Customer Data in compliance with applicable Law and provided any notice and obtained all consents and rights required by applicable Law to enable Licensor to lawfully Process Customer Data as permitted by this Agreement; (ii) it has (and will continue to have) full right and authority to make the Customer Data available to Licensor under this Agreement; and (iii) Licensor’s Processing of the Customer Data in accordance with this Agreement or Customer’s instructions does and will not infringe upon or violate any applicable Law or any rights of any third party. “Process” (including any grammatically inflected forms thereof) means any operation or set of operations which is performed on data or on sets of data, whether or not by automated means, including without limitation collection, recording, organization, structuring, storage, adaptation or alteration, access, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
2.5 Data Processing Addendum. This Section 2.5 shall apply only if Customer is a legal entity. The terms of the Data Processing Addendum, located on the Licensor website at [https://cloudphish.com/data-processing-addendum/][RJPC1] (the “DPA”), shall apply to: (i) the Processing of personal data (as defined in the GDPR) to the extent regulated by the General Data Protection Regulation (EU) 2016/679 (the “GDPR”) by Licensor solely on behalf of Customer, if any; and/or (ii) the Processing of personal information (as defined in the CCPA) to the extent regulated by the California Consumer Privacy Act of 2018 (together with any rules or regulations promulgated thereunder, the “CCPA”) by Licensor solely on behalf of Customer, if any.
2.6 Remedies. The Parties expressly acknowledge and agree that any breach or threatened breach of this Section 2 by the receiving Party may cause immediate and irreparable harm to the disclosing Party that may not be adequately compensated by damages. Each Party therefore agrees that in the event of such breach or threatened breach of this Section 2 by the receiving Party, and in addition to any remedies available at law, the disclosing Party shall have the right to seek equitable and injunctive relief, without the need to post bond, in any court of competent jurisdiction, with respect to such a breach or threatened breach.
3. TERM AND TERMINATION
3.1 Term. The term of the Agreement will commence when Customer first accesses the Software and will continue until such time, if ever, Customer no longer has an active Software subscription attributable to Customer’s account (the “Term”).
3.2 Termination for Convenience. Customer may terminate its account at any time by following the steps laid out at http://support.cloudphish.com/faq/account-cancellation/. Licensor may, in its sole discretion, for any reason or no reason, terminate any account (or any part thereof, including any Software subscription attributable to such account).
3.3 Termination for Cause. Either Party may immediately terminate this Agreement and Customer’s account, in the event of any material breach of this Agreement by the other Party which is not cured within thirty (30) days after receipt of written notice of the breach. To the extent permitted by applicable Law, with respect to any paid Software subscription, Customer agrees and acknowledges that, in the event Licensor terminates this Agreement under this Section 3.3, notwithstanding Section 3.4, Customer shall not be entitled to any refund for any amounts which were pre-paid on behalf of Customer’s account prior to any termination of Customer’s account. By accessing Customer’s Software account, Customer acknowledges that, although under certain circumstances, users located in the European Economic Area may have a right to cancel prepaid account subscriptions within 14 days of signing up for, upgrading to, or renewing an account, PERFORMANCE OF THIS AGREEMENT HAS BEGUN UPON ACCESSING THE SOFTWARE ACCOUNT AND CUSTOMER THEREBY LOSES ANY RIGHT OF WITHDRAWAL CUSTOMER MAY HAVE UNDER APPLICABLE LAW, INCLUDING APPLICABLE EUROPEAN UNION LAW, IN RESPECT OF THE PURCHASE OF ANY DIGITAL CONTENT HEREUNDER, AND CUSTOMER THEREBY WAIVES ANY RIGHT CUSTOMER MAY HAVE TO A REFUND OF ANY AMOUNTS WHICH WERE PRE-PAID ON BEHALF OF CUSTOMER’S ACCOUNT PRIOR TO ANY TERMINATION OF CUSTOMER’S ACCOUNT.
3.4 Effect of Termination. Immediately upon termination or expiration of this Agreement, Licensor’s obligation to provide the Software will immediately cease, any and all licenses granted by Licensor hereunder will immediately terminate, and all unpaid fees and other amounts due from Customer for Software previously provided by Licensor will immediately become due and payable. Each Party shall, within thirty (30) days of termination or expiration of this Agreement, return or destroy, at the option of the other Party, all copies of such other Party’s Confidential Information that are in its possession or control. In the event of any early termination of this Agreement (except for any termination of this Agreement by Licensor under Section 3.3), provided that Customer is not in breach of this Agreement, Licensor will refund to Customer any prepaid fees (if any) on a pro-rata basis for Software access that will not be received by Customer due to such termination.
3.5 Suspension of Software. Notwithstanding any provision herein to the contrary, Licensor may suspend the Software in the event (i) of any activity by Customer or any of Customer’s Designated Users, if such activity has, or in Licensor’s reasonable assessment is likely to have, an adverse effect on the Software, or (ii) Customer fails to pay an undisputed amount due under this Agreement.
4.1 Payments. If Customer purchases a paid Software subscription, Customer understands that use of the Software will result in payments by Customer for the access to the Software (“Charges”). If Customer is a natural person, the current Charges and payment terms applicable to the Software subscriptions offered by Licensor are viewable at https://cloudphish.com/individual/#pricing. If Customer is a legal entity, the current Charges and payment terms applicable to the Software subscriptions offered by Licensor are viewable at https://cloudphish.com/business/#pricing. After Customer has purchased such a paid Software subscription, Customer shall timely pay all Charges attributable thereto, and Licensor will process payment of the applicable Charges, using the preferred payment method designated in Customer’s account, and will send Customer a receipt by email. Licensor shall have the right to adjust any Charges upwards in the event that Customer’s usage of the Software or Services exceeds any usage parameters applicable to the Software subscription purchased by Customer, such as limitation on the number of Designated Users. For the avoidance of doubt, there shall be no downward adjustment of Charges. The Charges do not include, and Customer shall be responsible for paying all, local, state, federal or foreign sales, use, excise, VAT or other taxes, levies, duties or tariffs of any nature that may be due relating to this Agreement and the Software provided hereunder, except for taxes based on the income of Licensor. Any questions relating to Charges or disagreement with the Charges should be addressed to Licensor by contacting firstname.lastname@example.org. Licensor reserves the right to establish, remove, and/or revise Charges for any or all aspects of the Software at any time in Licensor’s sole discretion by posting or otherwise delivering notice to Customer. Any use of the Software after a notice of new or revised Charges has been posted through the Software or delivered to Customer will be deemed Customer’s acceptance of the new or revised Charges. Licensor may from time to time provide certain clients or prospective clients of Licensor with promotional offers and/or discounts that may result in different Charges for the same or similar Software access, and Customer agrees that such promotional offers and/or discounts, unless also made available to Customer, shall have no bearing on Customer’s use of the Software or the Charges applied to Customer. When Customer purchases any time-based paid Software subscription, auto-renewal will automatically be selected in Customer’s account with respect to such paid Software subscription. At the end of each selected subscription period, an order will automatically be placed for Customer for the applicable subscription renewal and Licensor will process payment of the applicable Charges, using the preferred payment method designated in Customer’s account, and Licensor will send Customer a receipt by email for such subscription. If Customer does not wish Customer’s subscription to auto-renew, Customer may cancel its Software subscription at any time on Customer’s account prior to the end of the then-current subscription period or email Licensor at email@example.com.
4.2 Subscription Duration. If Customer is a natural person, the various Software subscriptions are described at https://cloudphish.com/individual/#pricing. If Customer is a legal entity, the various Software subscriptions are described at https://cloudphish.com/business/#pricing. Subject to the terms and conditions of this Agreement: (i) if Customer is a natural person and has signed up for a free Software subscription (to the extent Licensor offers a free Software subscription, in Licensor’s sole discretion) then, subject to the other provisions of this Agreement (including Sections 1.6 and 3.2), such free Software subscription will remain in effect indefinitely; and (ii) if Customer has purchased a paid Software subscription for a period of time, if Customer elects not to renew such paid Software subscription once that period of time has elapsed, then: (a) subject to the other provisions of this Agreement (including Sections 1.6 and 3.2), if Customer is natural person, Customer’s subscription will automatically change into a free Software subscription until such time, if ever, Customer elects to purchase a paid Software subscription once again; or (b) if Customer is a legal entity, Licensor’s obligation to provide access to the Software will immediately cease and Customer will no longer have an active Software subscription.
5. CUSTOMER’S DUTIES AND RESTRICTIONS
5.1 Login and Password; Informational Text (SMS) Messages. If Customer is natural person, only Customer may use the Software. If Customer is a legal entity, Customer must provide Licensor with the email addresses, multi-factor authentication method, and names for Customer’s designated end users and administrators (collectively, the “Designated Users”). The logins for the Designated Users may not be shared and shall only be used by the Designated User to whom the login is initially assigned. Customer is solely responsible for maintaining the confidentiality of the accounts of Customer’s Designated Users and for all use of such accounts. Each Designated User must be Customer’s employee or consultant and, in each case, under Customer’s control. Customer shall be solely responsible for all use of the Software under Customer’s account, including by Customer’s Designated Users. Customer hereby agrees that the act or omission of a current or former Representative shall be deemed the same as if performed by Customer. Customer hereby acknowledges that Customer’s use of the Software may include Licensor sending Customer or Customer’s Designated Users informational text (SMS) messages if Customer or such Designated Users opt in to the receipt of text messages in connection with the Software.
5.2 Affirmative Covenants. Customer shall: (i) ensure Customer’s Designated Users, officers, directors employees, contractors, representatives, agents and affiliates (collectively, “Representatives”) comply with this Agreement; (ii) take all necessary steps to prevent unauthorized access to or use of the Software, (iii) notify Licensor immediately of any such unauthorized access or use; (iv) comply with all applicable federal, state, local, municipal, domestic, foreign, and international laws, rules and regulations (“Law”); (v) use the Software in compliance with all applicable industry standards; (vi) use the Software only for Customer’s own internal business purposes and solely in accordance with the terms of this Agreement; and (vii) use the Software solely in accordance with Licensor’s instructions.
5.3 Restrictive Covenants. Customer shall not, and Customer will cause Customer’s Representatives to not: (i) alter, change, modify, adapt, translate, or make derivative works of the Software; (ii) use the Software in a manner that, or provide any direction to Licensor that, violates any applicable Law; (iii) transmit any virus or programming routine intended to damage, surreptitiously intercept, or expropriate any system, data, or Personal Data; (iv) transfer, resell, license, sublicense, or otherwise make the Software (or any data or information accessible through the Software) available to any third party, except as expressly described in this Agreement; (v) use the Software for timesharing, rental, outsourcing, or a service bureau operation; (vi) attempt to gain, or assist others with attempting to gain, unauthorized access to Licensor’s network, systems, or the Software; (vii) decipher, decompile, disassemble, or reverse engineer the Software or assist or encourage any third party to do so; (viii) engage in any activity that violates the rights of Licensor or of others, that interferes with or disrupts the Software, or that could damage the reputation of Licensor; or (ix) upload any file containing any back door, time bomb, Trojan horse, worm, virus, or similar malicious code (“Malware”).
6. WARRANTIES, DISCLAIMERS AND LIMITATIONS
6.1 Warranties. Each Party represents and warrants to the other that: (i) it is duly organized and existing under the laws of the state of its formation; (ii) it has all requisite power and authority to enter into this Agreement; (iii) there is no outstanding contract, commitment, or agreement to which it is a party that would prevent such Party from performing this Agreement, and (iv) its activities relating to this Agreement will not violate any applicable Law. Licensor will use reasonable efforts not to transmit Malware to Customer, provided that it shall not be a breach of Licensor’s covenant to Customer if Customer or a Designated User uploads a file containing Malware in contravention of Customer’s obligations under Section 5.3(ix).
6.2 Warranty Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, LICENSOR MAKES NO WARRANTY, (EXPRESS, IMPLIED, OR STATUTORY) AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE SOFTWARE IS PROVIDED ON AN “AS-IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE, ITS FUNCTIONALITY, OR ITS WORK PRODUCT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE SOFTWARE, ITS FUNCTIONALITY, OR ITS WORK PRODUCT WILL BE UNINTERRUPTED, ERROR-FREE, ACCURATE, RELIABLE, COMPLETE, CURRENT, OR WITHOUT DELAY. CUSTOMER ACKNOWLEDGES THAT, AS A SAAS-BASED SERVICE, THE FUNCTIONALITY AND INTERFACES OF THE SOFTWARE MAY CHANGE OVER TIME.
6.3 Limitation of Liability. EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, ANY BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, VIOLATION OF LICENSOR’S INTELLECTUAL PROPERTY RIGHTS, OR CUSTOMER’S BREACH OF SECTIONS 2.4, 5.2, OR 5.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING LOST PROFITS, DAMAGES FOR LOSS OF GOODWILL, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE APPLICABLE PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE. LICENSOR’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO LICENSOR IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM THAT GAVE RISE TO SUCH LIABILITY.
6.4 Prohibition of Claim. CUSTOMER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT ANY CAUSE OF ACTION ARISING OUT OF THIS AGREEMENT OR RELATING TO THE SOFTWARE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
6.5 Application. SECTIONS 6.2, 6.3, AND 6.4 SHALL APPLY TO THE FULLEST EXTENT PERMISSIBLE UNDER LAW AND SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT AND THE PROVISION OF SOFTWARE HEREUNDER.
7.1 By Licensor.
7.1.1 Licensor will defend, indemnify and hold Customer harmless from and against any claim, demand, suit, investigation or proceeding made or brought by any third party (each, a “Claim”) against Customer alleging that the use of the Software as permitted hereunder infringes or misappropriates a third-party copyright, trade secret, trademark or United States patent. Licensor will pay all costs, reasonable attorneys’ fees and any settlement amounts agreed to by Licensor or damages awarded in connection with the Claim.
7.1.2 If Customer’s use of the Software has become, or in Licensor’s opinion is likely to become, the subject of any Claim, Licensor may at its option and expense: (i) procure for Customer the right to continue using the Software as set forth herein; (ii) modify the Software to make it non-infringing; or (iii) if the foregoing options are not reasonably practicable, terminate this Agreement and refund Customer any unused pre-paid fees attributable to Software that will not be provided due to such termination.
7.1.3 Licensor will have no liability or obligation with respect to any Claim to the extent caused by: (i) Customer’s use of the Software that is not in accordance with this Agreement or that is not reasonably foreseeable by Licensor; or (ii) the combination, operation or use of the Software with other applications, portions of applications, products or services where the Software would not by itself be infringing.
7.1.4 This Section 7.1 states Licensor’s entire and exclusive obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of third-party intellectual property rights.
7.2 By Customer. Customer will defend, indemnify and hold harmless Licensor, and its officers, directors employees, contractors, representatives, agents and affiliates, from and against any Claim made or brought against Licensor, arising from Customer’s breach, or alleged breach, of this Agreement.
7.3 Conditions. As a condition of the obligations set forth in this Section 7, a Party entitled to indemnification (the “Indemnified Party”) will: (a) provide prompt written notice of the applicable Claim to the other Party (the “Indemnifying Party”); (b) provide the Indemnifying Party with sole control of the applicable defense and settlement; and (c) cooperate as requested by the Indemnifying Party, at the Indemnifying Party’s expense. The Indemnifying Party will not agree to any settlement that admits fault or obligates the Indemnified Party to pay damages without the consent of the Indemnified Party, which consent shall not be unreasonably withheld.
8. GOVERNING LAW AND DISPUTE RESOLUTION
8.1 Governing Law. This Agreement will be governed by and construed under the laws of the Commonwealth of Massachusetts, without reference to principles of conflict of laws. Any dispute arising between the Parties will be settled in an action commenced and maintained in any court sitting in Middlesex County, Massachusetts. The Parties irrevocably consent and submit to the exclusive personal jurisdiction of such courts if there is any dispute between them and agree not to challenge or assert any defense to the jurisdiction of such courts.
8.3 Equitable Remedies. Customer acknowledges that the rights granted and obligations made hereunder to Licensor are of a unique and irreplaceable nature, the loss of which will irreparably harm Licensor and which cannot be replaced by monetary damages alone so that Licensor will be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by Customer. Except as expressly provided in this Agreement, Customer irrevocably waives all rights to seek injunctive or other equitable relief and agree to limit such Customer’s claims to claims for monetary damages (if any).
8.4.1 To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement (each, a “Dispute”), Customer and Licensor agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other. Customer will send its notice in accordance with Section 9.
8.4.2 If Customer and Licensor are unable to resolve a Dispute through informal negotiations within thirty (30) days, either Customer or Licensor may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one Party will be final and binding on the other. CUSTOMER UNDERSTANDS THAT ABSENT THIS PROVISION, SUCH CUSTOMER WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Streamlined Arbitration Rules and Procedures (the “Rules”) of JAMS, which is available at the JAMS website www.jamsadr.com. The determination of whether a Dispute is subject to arbitration will be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Customer’s arbitration fees and its share of arbitrator compensation will be governed by the Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a Party. The arbitrator must follow applicable Law, and any award may be challenged if the arbitrator fails to do so.
8.4.3 Notwithstanding the above, Customer and Licensor each agree that arbitration will be limited to the Dispute between Licensor and the Customer individually. To the full extent permitted by Law: (a) no arbitration will be joined with any other; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
8.4.4 Customer and Licensor agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of Customer’s or of Licensor’s intellectual property rights; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for injunctive relief or to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
9. GENERAL TERMS Licensor shall have the right to identify Customer as a Licensor customer for purposes of promotion and marketing of the Software, subject to Customer’s prior approval which shall not be unreasonably withheld, delayed or conditioned (and will be deemed given if no contrary indication is received from Customer within one (1) week from the date of written request for approval). Except as expressly specified in this Agreement, this Agreement does not create any agency, partnership, franchise, joint venture, or any other such relationship between the Parties. Neither Party is granted any express or implied right or authority to assume or create any obligation on behalf of or in the name of the other Party or to bind the other Party in any matter whatsoever. If any provision of this Agreement is determined by any court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision will be automatically reformed and construed so as to be valid, legal, operative, and enforceable to the maximum extent permitted by applicable Law while preserving its original intent. The invalidity, illegality, or unenforceability of any part of this Agreement will not render invalid the remainder of this Agreement. Sections 1.3, 1.5, 2, 3, 4, 5.2, 5.3, 6.2, 6.3, 6.4, 6.5, 7, 8, and 9 and the DPA shall survive and continue to bind the Parties after execution and delivery of this Agreement and its expiration or early termination to the extent and for as long as may be necessary to give effect to the rights, duties and obligations of the Parties pursuant to this Agreement. Failure by a Party to insist upon strict performance of any provision herein by the other Party will not be deemed a waiver by the first Party of its rights or remedies or a waiver by it of any subsequent default by the other Party, and no waiver will be effective unless it is in writing and duly executed by the Party entitled to enforce the provision being waived. Except for Section 8.4, which can only be amended by mutual written consent of both Parties, Licensor reserves the right, at Licensor’s discretion, to change, modify, add, or remove portions of this Agreement at any time. Please check this Agreement periodically for changes. Customer’s continued use of the Software after the posting of changes to this Agreement constitutes Customer’s binding acceptance of such changes. Licensor will make commercially reasonable efforts to notify Customer if Licensor materially changes this Agreement. Licensor may provide Customer with notices hereunder, including those regarding changes to this Agreement, by email, regular mail or postings through the Software. Notice will be deemed given twenty-four hours after email is sent, unless Licensor is notified that the email address is invalid. Notice posted through the Software is deemed given 24 hours following the initial posting. Notice to Licensor under this Agreement shall be provided by Customer in writing by mail to the following address: Cloudphish, Inc., Attention: James Caron, 8 Suburban Park Drive Billerica MA 01821. In the case of notice posted by mail, notice will be deemed given three days after the date of mailing. Except with regard to payments due to Licensor, neither Party will be liable for any delays or failures in performance due to circumstances beyond its reasonable control, including for example (but not limitation) natural disasters, such as floods, earthquakes, or severe weather events, epidemics, pandemics, quarantines, and/or other health emergencies, war, hostilities, terrorist acts, civil unrest, acts of government or the public enemy, organized labor activities, such as strikes or work slow-downs, or shortages of power, supplies, infrastructure, or transportation. In the event any such delay continues for a period of thirty (30) or more days, then either Party may terminate this Agreement upon five (5) business days’ prior written notice, provided Customer shall remain responsible for payments due to Licensor prior to termination. Licensor may assign this Agreement to any person at any time without any notice to Customer. Customer may not assign this Agreement without Licensor’s prior written consent. Any sale of all or substantially all of a Party’s assets, business, or a majority of such Party’s voting securities or any merger or other change of control with respect to such Party shall be deemed an assignment for purposes of this Agreement. In this Agreement, unless a clear contrary intention appears: (i) where not inconsistent with the context, words used in the present tense include the future tense and vice versa and words in the plural number include the singular number and vice versa; (ii) reference to any person includes such person’s successors and assigns but, if applicable, only if such successors and assigns are not prohibited by this Agreement; (iii) reference to any gender includes each other gender; (iv) reference to any agreement, document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and includes all addenda, exhibits and schedules thereto; (v) the titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement; (vi) “hereunder,” “hereof,” “hereto,” and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Section or Subsection of this Agreement; (vii) “including” (and with correlative meaning, “include”) means including without limiting the generality of any description preceding such term and (viii) any reference to “dollars” means United States Dollars. Except as amended after the date hereof pursuant to this Section 9, this Agreement (including any documents or webpages linked to in this Agreement and any Exhibits referenced herein) constitutes the entire Agreement between the Parties and supersede all prior and contemporaneous undertakings and agreements between the Parties, whether written or oral, with respect to the Software.