Effective Date: September 2020
1. SAAS SERVICES AND SUPPORT
1.1. Provision of Services. Subject to the terms of the Agreement and Customer’s payment of applicable fees, Company grants Customer a non-exclusive, non-transferable, non-sublicensable right to access and use the Services solely for Customer’s internal use during the Term. Company will use commercially reasonable efforts to provide the Services to Customer. As part of the Services, Company will provide Customer with all routine software enhancements and updates to the Services.
1.2. Authorized Users. Customer may authorize individuals to use the Services (each, a “User”). From the group of Users authorized by Customer, Customer will identify an individual User’s account to serve as the administrative account for Customer’s use of the Services.
1.3. Usage Limits. Each subscription to the Services is subject to usage limits more fully described in the Order Form. Additional Credits or quantities of the Services may be purchased as specified in the Order Form. Any added quantities will terminate on the same date as the underlying subscriptions. The number of Credits (or other listed quantities of the Services) specified in the Order Form cannot be decreased prior to the end of the then-current term, regardless of any termination, non-payment, non-use or other conduct or inaction.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1. Customer will also be responsible for maintaining the security of the Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer’s account (with or without Customer’s knowledge or consent).
2.2. Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); (b) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); (c) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (d) remove any proprietary notices or labels; or (e) use the information or data provided by the Services for any unlawful purposes.
2.3. Customer represents and warrants that Customer will use the Services only in compliance with Company’s written instructions and all applicable laws and regulations. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4. Customer represents and warrants that Customer has all the rights, power and authority necessary to collect, share, and grant the rights granted herein to any data, information, text, graphics, or other materials, including without limitation the personal data regarding Customers contacts and leads (e.g. first and last name and email address) uploaded to the Services or provided by Customer to Company (collectively referred to as “Customer Data”) that Customer uses in association with the Services. Subject to the terms and conditions herein, Customer hereby grants Company a non-exclusive, royalty-free license to host, copy, transmit, display, and otherwise process and use Customer Data, solely for the purpose of providing the Services to Customer in accordance with this Agreement.
2.5. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from the Customer Data or Customer’s use of Services.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Company’s Proprietary Information includes non-public information regarding features, functionality, and performance of the Services. Customer’s Proprietary Information includes non-public Customer Data. The Receiving Party agrees: (a) to take reasonable precautions to protect such Proprietary Information, and (b) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third party any such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information after 5 years following the disclosure thereof or any information that the Receiving Party can document: (i) is or becomes generally available to the public; or (ii) was in its possession or known by it prior to receipt from the Disclosing Party; or (iii) was rightfully disclosed to it without restriction by a third party; or (iv) was independently developed without use of any Proprietary Information of the Disclosing Party; or (v) is required to be disclosed by law.
3.2. Customer will own all right, title and interest in and to the Customer Data. Company will own and retain all right, title and interest in and to: (a) the Services and Software, all improvements, enhancements or modifications thereto; (b) any software, applications, inventions, or other technology developed by Company in connection with the Services or support; and (c) all intellectual property rights related to any of the foregoing.
3.3. Notwithstanding anything to the contrary, Company will have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to: (a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings; and (b) disclose such data solely in aggregate or other de-identified form in connection with its business but will have no right to disclose any insights from the data provided by Customer.
4. PAYMENT OF FEES
4.1. Customer will pay Company the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees, Customer will be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Except as expressly permitted herein, the Fees are non-refundable and non-cancellable. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon 30 days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 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.
4.2. Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company 30 days after the mailing date of the invoice. Unpaid amounts 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 and may result in immediate termination of the Service. Customer will be responsible for all taxes, including but not limited to VAT, associated with Services other than U.S. taxes based on Company’s net income.
5. TERM AND TERMINATION
5.1. Term. Subject to earlier termination as provided below, this Agreement will start on the Effective Date and will continue for the Initial Services Term; thereafter this Agreement will be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least 30 days prior to the end of the then-current term.
5.2. Termination for Cause. A party may terminate for cause: (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Within 15 business days of the effective date of termination, Customer will pay Company any remaining amounts owed.
5.3. Effect of Termination for Cause. If this Agreement is terminated by Customer in accordance with Section 5.2, Company will refund Customer any prepaid Fees covering the remainder of the Term of all Order Forms after the effective date of termination and will have no further liability for any loss or damage, direct or indirect, to Customer arising from the termination of this Agreement. If this Agreement is terminated by Company in accordance with Section 5.2. Customer will pay any unpaid fees covering the remainder of the Term of all Order Forms. In no event will termination relieve Customer of its obligation to pay any fees payable to Company for the period prior to the effective date of termination. Upon termination or expiration of the Term and unless prohibited by law, Company will delete all Customer Data provided by Customer.
5.4. Money Back Guarantee. If, at the end of the Initial Service Term, Customer contacted at least 20% of the Contact Tracking Leads provided by UserGems, but did not generate revenues greater than the Annual Service Fee, Customer has the right to terminate the contract.
5.5. Effect of Termination in relation to Money Back Guarantee. If this Agreement is terminated by Customer in accordance with Section 5.4., Company will refund Customer any Fees paid during the Initial Service Term, including prepaid Fees covering the remainder of the Term, and will have no further liability for any loss or damage, direct or indirect, to Customer arising from the termination of this Agreement. Upon termination or expiration of the Term and unless prohibited by law, Company will delete all Customer Data provided by Customer.
5.6. Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. PRIVACY AND SECURITY
6.1. Company will keep and maintain access to Customer Data in strict confidence, using such degree of care as is appropriate for Company’s size and complexity, the nature and scope of its activities, and the sensitivity of Customer Data, including following Company’s own security and privacy policies and procedures.
6.2. Company will implement, maintain, and follow reasonable, industry-standard technical and organizational measures to secure and protect Customer Data, in compliance with all applicable U.S. laws. Customer understands and agrees that all data will be transmitted directly to and hosted by Azure, a Microsoft Company (or any subsequent cloud hosting provider (the “Hosting Provider”). The Hosting Provider has a suite of compliance certificates for their data centers, including full SSAE 16 (SOC 1, SOC 2, and SOC 3) compliance. The Customer Data will be stored and maintained in accordance with the Hosting Provider’s applicable terms and conditions. Company makes no guarantees as to the availability of the Hosting Provider’s services.
6.3. If either party suspects that there may be or has been unauthorized access or use of any Customer Data or materials relating to the Services, that party will immediately notify the other party with confirmation of such notification in writing. Each party will take all such other actions as may be necessary or appropriate to mitigate, or protect against, any loss, liabilities, or damages, or potential loss, liability or damages to Customer.
6.4. Except as provided for herein, Company will have no responsibility for making or retaining back-up copies of Customer Data. In the event of any loss of or damage to Customer Data hosted by or on behalf of Company, Company will use commercially reasonable efforts to restore such lost or damaged Customer Data from the latest back-up of such Customer Data. Upon written request, Company will return or (at Customer’s election) destroy all Customer Data in Company's possession within 30 days from the date of such request, and thereafter, if Customer requests in writing, will certify such return and/or destruction to Customer.
7. WARRANTY AND DISCLAIMER
7.1. Each party represents and warrants that as of the Effective Date and at all times thereafter: (a) this Agreement constitutes a valid and binding obligation and is enforceable against it in accordance with the terms of this Agreement; and (b) the execution and delivery of this Agreement by it and the performance of its obligations hereunder: (i) are not in violation or breach of, and will not conflict with or constitute a default under, any material contract, agreement or commitment binding upon it; and (ii) will not conflict with or violate in any material manner any applicable law or regulation.
7.2. Company warrants that the Services will materially conform to the description set forth in the Order Form under normal use and circumstances as used consistent with the terms of this Agreement. As Company’s sole and exclusive liability and Customer’s sole and exclusive remedy for the breach of the warranty set forth in this Section 7.2, Company will use commercially reasonable efforts to correct the Services to comply with such warranty.
7.3. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control; however, Company will use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES 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, ACCURACY AND NON-INFRINGEMENT.
8.1. By Company. Company will defend at its expense any lawsuit brought against Customer, and will pay any settlement Company makes or approves, or any damages finally awarded in such lawsuit, to the extent such lawsuit is based on a claim by a third party alleging that the Services infringes, misappropriates, or violates any U.S. Intellectual Property Rights. If any portion of the Services becomes, or in Company’s opinion is likely to become, the subject of a claim of infringement, Company may, at Company’s option: (a) procure for Customer the right to continue using the Services; (b) replace the Services with non-infringing software or services that do not materially impair the functionality of the Services; (c) modify the Services so that it becomes non-infringing; or (d) terminate this Agreement and refund any fees actually paid by Customer to Company for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Services. Notwithstanding the foregoing, Company will have no obligation under this section or otherwise with respect to any infringement claim based upon: (x) any use of the Services not in accordance with this Agreement; (y) any use of the Services in combination with other products, equipment, software or data not supplied by Company; or (z) any modification of the Services by any person other than Company or its authorized agents. This subsection states the sole and exclusive remedy of Customer and the entire liability of Company for infringement claims and actions.
8.2. Procedure. Company’s obligations set forth above are expressly conditioned upon each of the foregoing: (a) Customer will promptly notify Company in writing of any threatened or actual claim or suit; (b) Company will have sole control of the defense or settlement of any claim or suit; and (c) Customer will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit. THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDY AND COMPANY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED ACTIONS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
9. LIMITATION OF LIABILITY
TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, NEITHER COMPANY NOR ITS SUPPLIERS WILL BE LIABLE TO CUSTOMER FOR: (A) ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, OR (B) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, EVEN IF COMPANY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.
10.1. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
10.2. Assignment. This Agreement is not transferable or assignable by either party, whether in whole or in part, without the prior written consent of the other party, except that either party may transfer or assign this Agreement in a merger, consolidation or sale. Subject to the foregoing, this Agreement and each and every provision hereof, will be binding upon and will inure to the benefit of the parties and their respective permitted successors and assigns.
10.3. Entire Agreement. 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, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
10.4. Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
10.5. No Agency. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.
10.6. Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
10.7. Notice. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notices to Company will be sent to ShelfFlip Inc. 2443 Fillmore Street #380-3416, San Francisco, CA 94115- Attention: Stephan Kletzl or to such other address as Company designates in writing Notices to Customer will be sent to the address stated in the most recent Order Form on file for Customer or to such other address as Customer designates in writing.
10.8. Governing Law; Jurisdiction. This Agreement will be governed by the laws of the State of California without regard to its conflict of laws provisions. Each party irrevocably agrees that the courts of California will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement.
10.9. Publicity. If satisfied with the service(s) provided by UserGems, customer agrees to participating in a customer case study within 12 months. The format can be a webinar, a written case study, or a podcast interview as per the customer's choice. The content and customer's logo will be featured on UserGems website.