Effective Date: June 18, 2021
A reference to “Archipelago,” “we,” “us,” or the “Company” is a reference to Archipelago Analytics, Inc.
2. PROCESSING ACTIVITIES COVERED
- Visit our Websites;
- Receive communications from us, including emails, phone calls, texts or fax;
- Use our cloud products and services as an authorized user (for example, as an employee of one of our customers who provided you with access to our services) where we act as a controller of your Personal Data;
- Register for, attend or take part in our events, webinars, or contests;
- Visit our branded social media pages;
- Visit our offices; or
- Participate in community and open source development.
Our Websites may contain links to other websites, applications, and services maintained by third parties. The information practices of other services, or of social media platforms that host our branded social media pages, are governed by their privacy statements, which you should review to better understand their privacy practices.
3. COLLECTION OF INFORMATION
3.1 Personal Data we collect directly from you
The Personal Data we collect directly from you includes identifiers, professional or employment-related information, commercial information, visual information, and internet activity information. We collect such information in the following situations:
- If you express an interest in obtaining additional information about our services; request customer support; use “Contact Us” or similar features; register to use our Websites; sign up for an event, webinar or contest; or download certain content, we may require that you provide to us your contact information, such as your name, job title, company name, address, phone number, email address or username and password;
- If you attend an event, we may, with your further consent, scan your attendee badge, which will provide to us your information, such as name, title, company name, address, country, phone number and email address;
- If you register for an online community that we host, we may ask you to provide a username, photo or other biographical information, such as your occupation, location, social media profiles, company name, areas of expertise and interests;
- If you interact with our Websites or emails or advertisements, we automatically collect information about your device and your usage of our Websites or emails or advertisements (such as Internet Protocol (IP) addresses or other identifiers, which may qualify as Personal Data using cookies, web beacons, or similar technologies;
- If you use and interact with our services, we automatically collect information about your device and your usage of our services through log files and other technologies, some of which may qualify as Personal Data;
- If you voluntarily submit certain information to our services, such as filling out a survey about your user experience, we collect the information you have provided as part of that request; and
- If you visit our offices, you may be required to register as a visitor and to provide your name, email address, phone number, company name and time and date of arrival.
3.2 Personal Data we collect from other sources
We also collect information about you from other sources including third parties from whom we may purchase Personal Data and from publicly available information. We may combine this information with Personal Data provided by you. This helps us update, expand, and analyze our records, identify new customers, and create more tailored advertising to provide services that may be of interest to you. The Personal Data we collect from other sources includes identifiers, professional or employment-related information, education information, commercial information, visual information, internet activity information, and inferences about preferences and behaviors. For example, we collect such Personal Data from the following sources:
- Third party providers of business contact information, including mailing addresses, job titles, email addresses, phone numbers, intent data (or user behavior data), IP addresses, social media profiles, LinkedIn URLs and custom profiles, for purposes of targeted advertising, delivering relevant email content, event promotion and profiling, determining eligibility and verifying contact information;
- Another individual at your organization who may provide us with your business contact information for the purposes of obtaining services; and
- Platforms such as GitHub to manage code check-ins and pull requests. If you participate in an open source or community development project, we may associate your code repository username with your community account so we can inform you of program changes that are important to your participation or relate to additional security requirements.
4. PROCESSING OF DEVICE AND USAGE DATA
We use common information-gathering tools, such as tools for collecting usage data, cookies, web beacons, pixels, and similar technologies to automatically collect information that may contain Personal Data as you navigate our Websites, our services, or interact with emails we have sent to you or our advertisements .
4.1 Device and Usage data
As is true of most websites, we gather certain information automatically when individual users visit our Websites. This information may include identifiers, commercial information, and internet activity information such as IP address (or proxy server information), device and application information, identification numbers and features, location, browser type, plug-ins, integrations, Internet service provider and/or mobile carrier, the pages and files viewed, searches, referring website, app or ad, operating system, system configuration information, advertising and language preferences, date and time stamps associated with your usage, and frequency of visits to the Websites. This information is used to analyze overall trends, help us provide and improve our Websites, offer a tailored experience for Website users, and secure and maintain our Websites.
In addition, we gather certain information automatically as part of your use of our cloud products and services. This information may include identifiers, commercial information, and internet activity information such as IP address (or proxy server), mobile device number, device and application identification numbers, location, browser type, Internet service provider or mobile carrier, the pages and files viewed, website and webpage interactions including searches and other actions you take, operating system and system configuration information and date and time stamps associated with your usage. This information is used to maintain the security of the services, to provide necessary functionality, to improve performance of the services, to assess and improve customer and user experience of the services, to review compliance with applicable usage terms, to identify future opportunities for development of the services, to assess capacity requirements, to identify customer opportunities, and for the security of Archipelago generally (in addition to the security of our products and services). Some of the device and usage data collected by the services, whether alone or in conjunction with other data, could be personally identifying to you. Please note that such device and usage data is generally used to identify the uniqueness of each user logging on (as opposed to specific individuals), apart from where it is strictly required to identify an individual for security purposes or as required as part of our provision of the services to our customers.
4.2 Cookies and Online Analytics
We use a variety of online tracking and analytics tools (e.g., cookies, pixel tags, and web beacons ) to collect and analyze information as you use our Websites and services.
When you visit our Websites, we, or an authorized third party, may place a cookie on your device that collects information, including Personal Data, about your online activities over time and across different sites. Cookies allow us to track use, infer browsing preferences, and improve and customize your browsing experience.
We may also use third-party web analytics services (e.g. Google Analytics, Mixpanel, and/or Pardot) to track and analyze usage information to provide enhanced interactions and more relevant communications, and to track the performance of our advertisements. You can learn about Google’s privacy practices by going to www.google.com/policies/privacy/partners/.
The types of tracking and analytics tools we and our service providers use for these purposes include, for example:
- “Local shared objects,” or “flash cookies,” may be stored on your computer or device using a media player or other software. Local shared objects operate much like cookies, but cannot be managed in the same way. Depending on how local shared objects are enabled on your computer or device, you may be able to manage them using software settings. For information on managing flash cookies, for example, click here.
- A “pixel tag” (also known as a “clear GIF”) or “web beacon” is a tiny image – typically just one-pixel – that can be placed on a web page or in our electronic communications to you in order to help us measure the effectiveness of our content and advertisements by, for example, counting the number of individuals who visit us online or verifying whether you’ve opened one of our emails or seen one of our web pages.
4.3 Notices on behavioral advertising and opt-out for Website visitors
To learn how to manage privacy and storage settings for Flash cookies, click here. Various browsers may also offer their own management tools for removing certain types of local storage.
4.4 Opt-Out from the setting of cookies on your individual browser
In many cases you may opt-out from the collection of non-essential device and usage data on your web browser by managing your cookies at the browser or device level. In addition, if you wish to opt-out of interest-based advertising, click here (or, if located in the European Union, click here). Please note, however, that by blocking or deleting cookies and similar technologies used on our Websites, you may not be able to take full advantage of the Websites.
Do Not Track. Do Not Track (“DNT”) is a privacy preference that users can set in certain web browsers. We do not currently recognize or respond to browser-initiated DNT signals. Learn more about Do Not Track.
5. PURPOSES FOR WHICH WE PROCESS PERSONAL DATA AND THE LEGAL BASES ON WHICH WE RELY
We collect and process your Personal Data for the following purposes. Where required by law, we obtain your consent to use and process your Personal Data for these purposes. Otherwise, we rely on another authorized legal basis (including but not limited to the (a) performance of a contract or (b) legitimate interest) to collect and process your Personal Data.
- Providing necessary functionality: We process your Personal Data to perform our contract with you for the use of our Websites and services; if we have not entered into a contract with you, we base the processing of your Personal Data on our legitimate interest to provide you with the necessary functionality required for your use of our Websites and services;
- Managing user registrations: If you have registered for an account with us, we process your Personal Data by managing your user account for the purpose of performing our contract with you according to applicable terms of service;
- Handling contact and user support requests: We process your Personal Data to perform our contract with you and to the extent it is necessary for our legitimate interest in fulfilling your requests and communicating with you;
- Managing event registrations and attendance: We process your Personal Data to plan and host events or webinars for which you have registered or that you attend, including sending related communications to you, to perform our contract with you;
- Promoting the security of our Websites and services: We process your Personal Data by tracking use of our Websites and services, creating aggregated non-personal data, verifying accounts and activity, investigating suspicious activity, and enforcing our terms and policies to the extent it is necessary for our legitimate interest in promoting the safety and security of the services, systems and applications and in protecting our rights and the rights of others;
- Developing and improving our Websites and services: We process your Personal Data to analyze trends and to track your usage of and interactions with our Websites and services to the extent it is necessary for our legitimate interest in developing and improving our Websites and services and providing our users with more relevant content and service offerings, or where we seek your valid consent;
- Assessing and improving user experience: We process device and usage data as described above, which in some cases may be associated with your Personal Data, to analyze trends and assess and improve the overall user experience to the extent it is necessary for our legitimate interest in developing and improving the service offering, or where we seek your valid consent;
- Reviewing compliance with applicable usage terms: We process your Personal Data to review compliance with the applicable usage terms in our customer’s contract to the extent that it is in our legitimate interest to ensure adherence to the relevant terms;
- Assessing capacity requirements: We process your Personal Data to assess the capacity requirements of our services to the extent that it is in our legitimate interest to ensure that we are meeting the necessary capacity requirements of our service offering;
- Identifying customer opportunities: We process your Personal Data to assess new potential customer opportunities to the extent that it is in our legitimate interest to ensure that we are meeting the demands of our customers and their users’ experiences;
- Registering office visitors: We process your Personal Data for security reasons, to register visitors to our offices and to manage non-disclosure agreements that visitors may be required to sign, to the extent such processing is necessary for our legitimate interest in protecting our offices and our confidential information against unauthorized access;
- Displaying personalized advertisements and content: We process your Personal Data to conduct marketing research, advertise to you, provide personalized information about us on and off our Websites and to provide other personalized content based upon your activities and interests to the extent it is necessary for our legitimate interest in advertising our Websites or, where necessary, to the extent you have provided your prior consent;
- Sending marketing communications: We will process your Personal Data or device and usage data, which in some cases may be associated with your Personal Data, to send you marketing information, product recommendations and other non-transactional communications (e.g., marketing newsletters, telemarketing calls, SMS, or push notifications) about us and our affiliates and partners, including information about our products, promotions or events as necessary for our legitimate interest in conducting direct marketing or to the extent you have provided your prior consent; and
- Complying with legal obligations: We process your Personal Data when cooperating with public and government authorities, courts or regulators in accordance with our legal obligations under applicable laws to the extent this requires the processing or disclosure of Personal Data to protect our rights or is necessary for our legitimate interest in protecting against misuse or abuse of our Websites, protecting personal property or safety, pursuing remedies available to us and limiting our damages, complying with judicial proceedings, court orders or legal processes, respond to lawful requests, or for auditing purposes.
If we need to collect and process Personal Data by law, or under a contract we have entered into with you, and you fail to provide the required Personal Data when requested, we may not be able to perform our contract with you.
6. SHARING OF PERSONAL DATA
We may share your Personal Data as follows:
- Service Providers: With our contracted service providers, who provide services such as IT and system administration and hosting, credit card processing, research and analytics, marketing, customer support and data enrichment for the purposes and pursuant to the legal bases described above;
- Customers With Whom You Are Affiliated: If you use our services as an authorized user, we may share your Personal Data with your affiliated customer responsible for your access to the services to the extent this is necessary for verifying accounts and activity, analyzing usage, investigating suspicious activity, or enforcing our terms and policies;
- Third party networks and websites: With third-party social media networks, advertising networks and websites, so that Archipelago can market and advertise on third party platforms and websites;
- Third Party Partners: If you choose to interact with or use third-party tools, we may share your Personal Data with our third party partners who may contact you regarding their products or services;
- Event Sponsors: If you attend an event or webinar organized by us, or download or access an asset on our Website, we may share your Personal Data with sponsors of the event. If required by applicable law, you may consent to such sharing via the registration form or by allowing your attendee badge to be scanned at a sponsor booth. In these circumstances, your information will be subject to the sponsors’ privacy statements. If you do not wish for your information to be shared, you may choose to not opt-in via event/webinar registration or elect to not have your badge scanned, for example,;
- Professional Advisers: In individual instances, we may share your Personal Data with professional advisers acting as service providers, processors, or joint controllers - including lawyers, bankers, auditors, and insurers based in countries in which we operate who provide consultancy, banking, legal, insurance and accounting services, and to the extent we are legally obliged to share or have a legitimate interest in sharing your Personal Data;
- Archipelago Affiliates: With affiliates and companies that we acquire in the future, to the extent such sharing of data is necessary to fulfill a request you have submitted via our Websites or for customer support, marketing, technical operations and account management purposes; and
- Third Parties Involved in a Corporate Transaction: If we are involved in a merger, reorganization, dissolution or other fundamental corporate change, or sell a website or business unit, or if all or a portion of our business, assets or stock are acquired by third party, with such third party. We will comply with applicable laws regarding notification in case of transfer of your Personal Data to an unaffiliated third party.
We may also share anonymous or de-identified usage data with Archipelago’s service providers for the purpose of helping Archipelago in such analysis and improvements. Additionally, Archipelago may share such anonymous or de-identified usage data on an aggregate basis in the normal course of operating our business; for example, we may share information publicly to show trends about the general use of our services.
Anyone using our communities, forums, blogs, or chat rooms on our Websites may read any Personal Data or other information you choose to submit and post.
7. INTERNATIONAL TRANSFER OF PERSONAL DATA
We may transfer information that we collect about you to third party processors across borders and from your country or jurisdiction to other countries or jurisdictions around the world. If you are located in the European Union or other regions with laws governing data collection and use that may differ from U.S. law, please note that you are transferring information to a country and jurisdiction that does not have the same data protection laws as your jurisdiction. As required by applicable law, we will take reasonable and appropriate steps to ensure that any third party who is acting as a “data processor” under applicable EU and Swiss terminology is processing the personal data we entrust to them in a manner consistent with applicable law, for instance by entering into the appropriate back-to-back agreements and, if required, standard contractual clauses for the transfer of data as approved by the European Commission (Art. 46 GDPR). Where required by applicable law, we will only share, transfer or store your Personal Data outside of your jurisdiction with your prior consent.
Our Websites are not directed at children. We do not knowingly collect Personal Data from children under the age of 16. If you are a parent or guardian and believe your child has provided us with Personal Data without your consent, please contact us by using the information in the “Contact Us” section below and we will take steps to delete their Personal Data from our systems.
9. RETENTION OF PERSONAL DATA
We may retain your Personal Data for a period of time consistent with the original purpose of collection (see the “Purposes for which we process Personal Data and the legal bases on which we rely” section, above) or as long as required to fulfill our legal obligations. We determine the appropriate retention period for Personal Data on the basis of the amount, nature, and sensitivity of the Personal Data being processed, the potential risk of harm from unauthorized use or disclosure of the Personal Data, whether we can achieve the purposes of the processing through other means, and on the basis of applicable legal requirements (such as applicable statutes of limitation).
After expiry of the applicable retention periods, your Personal Data will be deleted. If there is any data that we are unable, for technical reasons, to delete entirely from our systems, we will implement appropriate measures to prevent any further use of such data.
10. YOUR RIGHTS RELATING TO YOUR PERSONAL DATA
10.1 Your rights
You may have certain rights relating to your Personal Data, subject to local data protection laws. Depending on the applicable laws these rights may include the right to:
- Access your Personal Data held by us;
- Know more about how we processed your Personal Data;
- Rectify inaccurate Personal Data and, taking into account the purpose of processing the Personal Data, ensure it is complete;
- Erase or delete your Personal Data (also referred to as the ‘right to be forgotten’), to the extent permitted by applicable data protection laws;
- Restrict our processing of your Personal Data to the extent permitted by law;
- Transfer your Personal Data to another controller to the extent possible (right to data portability);
- Object to any processing of your Personal Data. Where we process your Personal Data for direct marketing purposes or share it with third parties for their own direct marketing purposes, you can exercise your right to object at any time to such processing without having to provide any specific reason for such objection;
- Opt-out of certain disclosures of your Personal Data to third parties;
- If you’re under the age of 16, opt-in to certain disclosures of your Personal Data to third parties;
- Not be discriminated against for exercising your rights described above;
- Not be subject to a decision based solely on automated processing, including profiling, which produces legal effects ("Automated Decision-Making"). Automated Decision-Making currently does not take place on our Websites or in our services; and
- Withdraw your consent at any time (to the extent we base processing on consent), without affecting the lawfulness of the processing based on such consent before its withdrawal.
10.2 How to exercise your rights
To exercise your rights, please contact us by using the information in the “Contact Us” section, below. We try to respond to all legitimate requests within one month and will contact you if we need additional information from you in order to honor your request. Occasionally it may take us longer than a month, taking into account the complexity and number of requests we receive. If you are an employee of an Archipelago customer, we recommend you contact your employer’s system administrator for assistance in correcting or updating your information.
Some registered users may update their user settings, profiles, organization settings and event registrations by logging into their accounts and editing their settings or profiles.
10.3 Your rights relating to customer data
11. HOW WE SECURE YOUR PERSONAL DATA
We take appropriate precautions including organizational, technical, and physical measures to help safeguard against accidental or unlawful destruction, loss, alteration, and unauthorized disclosure of, or access to, the Personal Data we process or use.
While we follow generally accepted standards to protect Personal Data, no method of storage or transmission is 100% secure. You are solely responsible for protecting your password, limiting access to your devices and signing out of Websites after your sessions. If you have any questions about the security of our Websites, please contact us by using the information in the “Contact Us” section, below.
12. YOUR PREFERENCE FOR EMAIL AND SMS MARKETING COMMUNICATIONS
From time to time we may contact you with information about our products and services, including sending you marketing messages and asking for your feedback on our products and services. You may manage your receipt of marketing and non-transactional communications from us by clicking on the “unsubscribe” link located on the bottom of Archipelago marketing emails, by replying or texting ‘STOP’ if you receive Archipelago SMS communications, or by contacting firstname.lastname@example.org.
Please note that opting out of marketing communications does not opt you out of receiving important business communications related to your current relationship with us, such as communications about your subscriptions or event registrations, service announcements or security information.
13. YOUR PREFERENCE FOR TELEMARKETING COMMUNICATIONS
If you want your phone number to be added to our internal Do-Not-Call telemarketing register, please contact us by using the information in “Contact Us” section below. Please include your first name, last name, company and the phone number you wish to add to our Do-Not-Call register. Alternatively, you can always let us know during a telemarketing call that you do not want to be called again for marketing purposes.
14. LINKS TO OTHER WEBSITES AND SERVICES
The Service may contain links to and from third party websites of our business partners, advertisers, and social media sites and our users may post links to third party websites. If you follow a link to any of these websites, please note that these websites have their own privacy policies and that we do not accept any responsibility or liability resulting from you following a link these websites. Additionally, other privacy policies may apply when you engage with us through a co-branded or co-sponsored promotional or marketing activity. We strongly recommend that you read the privacy policies and terms and conditions of use of any third party website or service to understand how your information will be collected, used and shared. We are not responsible for the privacy practices or the content on the websites of third-party sites.
16. CONTACT US
Effective Date: January 4, 2021
1. ELIGIBILITY AND USER TYPE
AS BETWEEN COMPANY AND CUSTOMER, YOU AGREE THAT IT IS SOLELY CUSTOMER’S RESPONSIBILITY TO (A)INFORM YOU AND ITS OTHER AUTHORIZED USERS OF ANY RELEVANT CUSTOMER POLICIES AND PRACTICES AND ANY SETTINGS THAT MAY IMPACT THE PROCESSING OF USER CONTENT; (B)OBTAIN ANY RIGHTS, PERMISSIONS OR CONSENTS FROM YOU AND ITS OTHER AUTHORIZED USERS THAT ARE NECESSARY FOR THE LAWFUL USE OF USER CONTENT AND THE OPERATION OF THESERVICE; (C) ENSURE THAT THE TRANSFER AND PROCESSING OF USER CONTENT UNDER THE CONTRACT IS LAWFUL; AND (D) RESPOND TO AND RESOLVE ANY DISPUTE WITH YOU AND ITS OTHER AUTHORIZED USERS RELATING TO OR BASED ON USER CONTENT, THE SERVICE OR CUSTOMER’S FAILURE TO FULFILL THESE OBLIGATIONS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO YOU RELATING TO THE SERVICE WHICH IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS.
2. ACCOUNT REGISTRATION AND USE
2.1 Account Registration and Confidentiality. To access the Service and, as applicable, all or portions of the Websites, you must register for an Company account by creating a username and password and as otherwise required therein. You agree to provide us with accurate, complete, and current registration information about yourself. It is your responsibility to ensure that your password remains confidential and secure. By registering, you agree that you are fully responsible for all activities that occur under your username and password. We may assume that any communications we receive under your account have been made by you. If you are a billing owner, an administrator, or if you have confirmed in writing that you have the authority to make decisions on behalf of a Customer (“Account Administrator”), you represent and warrant that you are authorized to make decisions on behalf of the Customer and agree that Company is entitled to rely on your instructions.
2.2 Unauthorized Account Use. You are responsible for notifying us at email@example.com if you become aware of any unauthorized use of or access to your account. You understand and agree that we may require you to provide information that may be used to confirm your identity and help ensure the security of your account. Company will not be liable for any loss, damages, liability, expenses or attorneys’ fees that you may incur as a result of someone else using your password or account, either with or without your knowledge and/or authorization, and regardless of whether you have or have not advised us of such unauthorized use. You will be liable for losses, damages, liability, expenses and attorneys’ fees incurred by Company or a third party due to someone else using your account. In the event that the Account Administrator or Customer loses access to an account or otherwise requests information about an account, Company reserves the right to request from the Account Administrator or Customer any verification it deems necessary before restoring access to or providing information about such account in its sole discretion.
3. PROPRIETARY RIGHTS
3.2 Trademarks. Archipelago, Onarchipelago, Archipelago Analytics, and the Archipelago logo are trademarks of Archipelago. “Archipelago Trademarks” means the foregoing, as well as all other names, marks, brands, logos, designs, trade dress, slogans and other designations Archipelago uses in connection with its products and services. You may not remove or alter any Archipelago Trademarks, or co-brand your own products or material with Archipelago Trademarks, without Archipelago’s prior written consent. You acknowledge Archipelago’s rights in Archipelago Trademarks and agree that any use of Archipelago Trademarks by you shall inure to Archipelago’s sole benefit. You agree not to incorporate any Archipelago Trademarks into your trademarks, service marks, company names, Internet addresses, domain names, or any other similar designations, for use on or in connection with computer or Internet-related products, services or technologies. All other brands and names used on this Website may be trademarks, registered trademarks, or service marks of their respective owners.
3.3 You agree to notify Company immediately upon becoming aware of any claim that the Service or the Websites infringes upon any copyright, trademark, or other contractual, statutory, or common law rights. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including without limitation rights in and to all applications and registrations relating to the Service and the Websites shall, as between you and Company, at all times be and remain the sole and exclusive property of Company. Any unauthorized use of any material contained on or through the Service or the Websites may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes.
4. USER CONTENT AND FEEDBACK
4.2 Feedback. The Service and the Websites may have certain features that allow you to submit comments, information, and other materials (collectively, “Feedback”) to Company and share such Feedback with other users, or the public. By submitting such Feedback, you grant Company and its Affiliates a license to access, use, copy, reproduce, process, adapt, publish, transmit, host, and display that Feedback for any purpose (including in testimonials or other Company marketing materials and where required to do so by law or in good faith to comply with legal process.). Company reserves the right to remove any Feedback posted in public forums for any reason at our sole discretion.
4.3 User Content and Feedback Representations. You acknowledge and agree that you have all required rights to submit User Content and Feedback without violation of any third-party rights. You understand that Company does not control, and is not responsible for, User Content or Feedback, and that by using the Service and/or Websites, you may be exposed to User Content or Feedback from other users that is offensive, indecent, inaccurate, misleading, or otherwise objectionable. Please also note that User Content and Feedback may contain typographical errors, other inadvertent errors or inaccuracies. You agree that you will indemnify, defend, and hold harmless Company and its Affiliates for all claims resulting from User Content and/or Feedback you submit through the Service or the Websites. We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event you will cooperate with us in asserting any available defenses.
5. LICENSE AND ACCEPTABLE USE
5.2 Acceptable Use. You must at all times comply with the following rules regarding acceptable use of the Service and the Websites, including but not limited to the following rules regarding disruption of the Service, misuse of the Service and Websites, and User Content standards within the Service and Websites.
You may not:
- access, tamper with, or use non-public areas of the Service or the Websites, Company’s computer systems, or the technical delivery systems of Company’s providers;
- probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measure;
- accessor search the Service or the Websites by any means other than Company’s publicly supported interfaces (for example, “scraping”);
- attempt to disrupt or overwhelm our infrastructure by intentionally imposing unreasonable requests or burdens on our resources (e.g. using “bots” or other automated systems to send requests to our servers at a rate beyond what could be sent by a human user during the same period of time); or
- interfere with or disrupt the access of any user, host or network, including, without limitation, by sending a virus, overloading, flooding, spamming, or mail-bombing the Service or the Websites.
You may not utilize the Service or the Websites to carry out, promote, or support:
- any unlawful or fraudulent activities;
- the impersonation of another person or entity or the misrepresentation of an affiliation with a person or entity in a manner that does or is intended to mislead, confuse, or deceive others;
- activities that are defamatory, libelous or threatening, constitute hate speech, harassment, or stalking;
- the publishing or posting of other people’s private or personal information without their express authorization and permission;
- the sending of unsolicited communications, promotions advertisements, or spam;
- the publishing of or linking to malicious content intended to damage or disrupt another user’s browser or computer; or
- the promotion or advertisement of products or services other than your own without appropriate authorization.
You may not post any content on the Service or the Websites that:
- violates any applicable law, any third party’s intellectual property rights, or anyone’s right of privacy or publicity;
- is deceptive, fraudulent, illegal, obscene, pornographic (including child pornography, which, upon becoming aware of, we will remove and report to law enforcement, including the National Center for Missing and Exploited children), defamatory, libelous or threatening, constitutes hate speech, harassment, or stalking;
- contains any personal information of minors;
- contains any sensitive personal information, such as financial information, payment card numbers, social security numbers, or health information without Company’s prior written consent granted as part of a Customer Agreement;
- contains viruses, bots, worms, or similar harmful materials; or
- contains any information that you do not have a right to make available under law or any contractual or fiduciary duty.
In addition to any other remedies that may be available to us, Company reserves the right to take any remedial action it deems necessary, including but not limited to immediately suspending or terminating your access to the Service and the Websites without notice should you fail to abide by the rules in this Section.
7. THIRD-PARTY LINKS AND WEBSITES
The Service and the Websites may provide information and content provided by third parties; links to third-party websites or resources, such as sellers of goods and services; and third-party products and services for sale directly to you. Company is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for (i) any content, advertising, products, or other materials on or available from such sites or resources, (ii) any errors or omissions in these websites or resources, or (iii) any information handling practices or other business practices of the operators of such sites or resources. You further acknowledge and agree that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any linked sites or resources. Your interactions with such third parties will be governed by the third parties’ own terms of service and privacy policies, and any other similar terms.
8. DISCLAIMERS; LIMITATION OF LIABILITY
THE SERVICE AND THE WEBSITES AND INFORMATION CONTAINED THEREIN, WHETHER PROVIDED BY COMPANY, ITS AFFILIATES, LICENSORS, SUPPLIERS, ITS USERS, AND OTHER INFORMATION ON OR ACCESSIBLE FROM THE SERVICE OR THE WEBSITES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY, REPRESENTATION, OR GUARANTEE OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES, REPRESENTATIONS, OR GUARANTEES OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ALL OF WHICH ARE DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. IN NO EVENT SHALL COMPANY OR ITS AFFILIATES, LICENSORS, SUPPLIERS, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR OTHER REPRESENTATIVES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR COSTS OF OBTAINING SUBSTITUTE GOODS OR SERVICES), ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR THE WEBSITES, ANY MATERIALS, INFORMATION, OR RECOMMENDATIONS APPEARING ON THE SERVICE OR THE WEBSITES, OR ANY LINK PROVIDED ON THE SERVICE OR THE WEBSITES, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, VIOLATION OF STATUTE, OR OTHERWISE. THIS EXCLUSION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. IN ANY EVENT, COMPANY’S AGGREGATE LIABILITY WILL NOT EXCEED $100. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR THE WEBSITES OR ANY WEBSITE FEATURED OR LINKED TO THROUGH THE SERVICE OR THE WEBSITES, AND NEITHER COMPANY NOR ITS AFFILIATES WILL BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR WEBSITES. COMPANY WILL NOT BE LIABLE FOR THE OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. YOU VOLUNTARILY ASSUME THE RISK OF HARM OR DAMAGE FROM THE FOREGOING. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW.
If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” This release includes the criminal acts of others.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages such as above. Accordingly, some of the above limitations may not apply to you. If you are a resident of a state that permits the exclusion of these warranties and liabilities, then the limitations in this Section specifically do apply to you.
Company reserves the right at any time to modify or discontinue, temporarily or permanently, the Service and/or the Websites (or any part thereof), with or without notice. You agree that Company shall not be liable to you or any third party for any modification, suspension, or discontinuance of the Service and Websites.
11. GENERAL TERMS
11.5 Force Majeure. Under no circumstances shall Company, its Affiliates, licensors or suppliers be held liable for any delay or failure in performance resulting directly or indirectly from an event beyond its reasonable control.
11.8 Notices. We may deliver notice to you by e-mail, posting a notice on the Service or the Websites or any other method we choose and such notice will be effective on dispatch. If you give notice to us, it will be effective when received and you must use the following email address: firstname.lastname@example.org.
Terms of service
Effective Date: July 7, 2021
TERMS OF SERVICE
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT (DEFINED BELOW) OR ACCESSING OR USING THE SERVICES, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICES. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.
FREE TRIALS, INCLUDING BUT NOT LIMITED TO FREE SOV DIAGNOSTICS, AND OTHER FREE SERVICES ARE GOVERNED BY THE APPLICABLE PROVISIONS OF THIS AGREEMENT.
IF YOU ARE USING THE SERVICES AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP, OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
THE SERVICES MAY NOT BE ACCESSED FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
MASTER SUBSCRIPTION AGREEMENT
This Master Subscription Agreement (“Agreement”) is made and entered into by and between Archipelago Analytics, Inc., a Delaware corporation with offices located at 8 California Street, San Francisco, CA 94111 (“Company”) and the entity or person placing an order for or accessing the Services (“Customer”). The “Effective Date” is the date of Customer’s initial access to the Services (as defined below) through any online provisioning, registration, or order process.
Modifications to this Agreement: From time to time, Company may modify this Agreement. Unless otherwise specified by Company, changes become effective for Customer upon renewal of the then-current Subscription Term (defined below) following the date the updated version of this Agreement goes into effect. Company will use reasonable efforts to notify Customer of the changes through communications via Customer’s account, email, or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term, and in any event continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version. If Customer does not agree to the changes, Customer may terminate this Agreement in accordance with Section 4.2 (Termination) below.
1.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party hereto. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2. “Customer Data” means all information, data, files, and other materials submitted by or on behalf of Customer or any User to the Services.
1.3. “Documentation” means any manuals, instructions, or other documents or materials that Company provides or makes available to Customer that describe the technical functionality, features, or requirements of the Services.
1.4. “Improvements” means enhancements, upgrades, error corrections, and bug fixes to the Services made generally available by Company at no additional charge.
1.5. “Intellectual Property Rights” means (a) unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, moral rights, know-how and other trade secret rights, and all other intellectual property rights, (b) all derivatives of the foregoing, (c) all registrations, applications, renewals, extensions, continuations, divisions, and reissues thereof now or hereafter in force of the foregoing, (d) and all forms of protection of a similar nature anywhere in the world.
1.6. “Order Form” means an ordering document that specifies the Services purchased by Customer under this Agreement that is entered into by Customer and Company. Order Forms shall be subject solely to and incorporated by reference the terms of this Agreement. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement.
1.7. “Services” means Company’s software as a service platform and all related components, including any Improvements, as described in the applicable Order Form.
1.8. “Subscription” means the access to the Services purchased by Customer as set forth in the applicable Order Form.
1.9. “Subscription Term” means the period identified in the Order Form during which Customer’s Users are permitted to use or access the Services pursuant to the terms set forth in this Agreement.
1.10. “Term” has the meaning set forth in Section 4.1 below (Term).
1.11. “Usage Data” means data and information (a) derived from Customer Data using Company’s models and schema, data that is aggregated by Company (including aggregations with data sourced from other customers of the Company and other third party data sources), and (b) regarding provision, use, and performance of the Service, and Customer’s access to and use of the Service, including, without limitation, all data (including metadata) collected, generated or derived from use of the Services by or on behalf of Customer or any of its Affiliates, personnel or Users including but not limited to navigational, transactional, processing, computer (such as IP address and browser), demographical, statistical and other analytical data, statistical usage data derived from the operation of the Services and configurations, log data, and the performance results for the Service.
1.12. “User” means an employee of Customer its or of an Affiliate of Customer that has entered into an Order Form with Company under this Agreement, and/or Customer’s insurance brokers or underwriters, authorized by Customer to use the Services under Customer’s account. If Customer wishes to provide access to additional individuals not listed above, it may do so with Company’s prior written consent on a case by case basis.
2.1. Provision of Services. Company shall make the Services available to Customer and its Users pursuant to this Agreement during the applicable Subscription Term and in accordance with the performance standards set forth in the Service Level Addendum available at https://www.onarchipelago.com/customers/sla. Company will provide the Services in accordance with the performance and functionality applicable to the version of the Order Form by Customer. Subject to Section 7.1(b) below, Company may update the content, functionality, and user interface of the Services and may release Improvements and other features and functionality from time to time in its sole discretion. Customer agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Company with respect to future functionality or features.
2.2. Access Rights. Customer has a non-exclusive, non-sublicensable, non-transferable (except as specifically permitted in this Agreement) right to access and use the Services pursuant to this Agreement during the applicable Subscription Term, solely for Customer’s internal business purposes subject to the limitations set forth in the applicable Order Form. Customer is responsible for the performance of its Users (including but not limited to its employees, and contractors) and their compliance with Customer’s obligations under this Agreement.
2.3. Usage Restrictions. Customer is responsible for all activities conducted under its and its Users’ logins on the Service. Customer shall use the Services in compliance with applicable law and shall not: (a) make the Services available to, or use any Services for the benefit of, anyone other than Customer and its Affiliates; (b) rent, sublicense, re-sell, lease, time-share, distribute, pledge, assign, or otherwise similarly exploit the Service, or make it available to anyone other than its Users; (c) reverse engineer, hack the Service, or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (d) access the Service, the Documentation, or Company’s Confidential Information to build a competitive product or service or to copy its features or user interface; (e) allow User Subscriptions to be shared or used by more than one individual User (except that User Subscriptions may be reassigned to new Users replacing individuals who no longer use the Services for any purpose, whether by termination of employment or other change in job status or function); (f) send or store infringing, obscene, threatening, or otherwise unlawful material including material violative of third-party privacy rights in connection with the Service; (g) store or transmit viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files, scripts, agents or programs to or through the Service; (h) disrupt the integrity or performance of, the Services or the data contained therein; (i) modify, copy, adapt, or create derivative works based on the Service, or any portion thereof; (j) remove, alter, add to, or fail to reproduce, in and on the Services (or permit any third party to do any of the foregoing) the name of Company and any proprietary trademark, copyright markings, or other notices incorporated in, market on, affixed to, or otherwise appearing in or on the Services or which may be required by Company at any time; (k) disclose any benchmarking, competitive analysis, or other results obtained from use of the Service, (l) frame or mirror any part of any Services or Content, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation; or (m) use the Services in a manner that interferes with or disrupts the integrity or performance of the Services (or the date contained therein). Any use of the Services in breach of this Agreement, Documentation or Order Forms, by Customer or Users that, in Company’s sole judgment threatens the security, integrity, or availability of the Service, may, in addition to Company’s other remedies hereunder, result in Company’s immediate suspension of the Service. Company reserves the right to throttle or limit the Services in the event of excessive bandwidth, storage, or other usage which Company determines could adversely impact on costs and/or performance of the Services or any component thereof.
2.4. Administration of Customer’s Account. Customer acknowledges that it retains administrative control over to whom it grants access to Customer Data hosted in the Service. Customer may specify one or more Users as administrators (each an “Administrator”) to manage its account, and Company is entitled to rely on communications from such Administrators when servicing Customer’s account. Customer is responsible for maintaining the security of User accounts and passwords.
2.5. Security; Protection of Customer Personal Data. Company shall implement and maintain reasonable administrative, organizational, and technical safeguards designed for the protection, confidentiality, and integrity of Customer Data at least as rigorous as the measures described in Company’s Data Security standards available at https://www.onarchipelago.com/customers/security. If Customer Data includes Personal Data, as defined in Company’s Data Processing Addendum (“DPA”), the terms of the DPA shall be incorporated into this Agreement.
2.6. Compliance. Customer is responsible for use of the Services by its Users and for their compliance with this Agreement. Customer is solely responsible for all Customer Data, including but not limited to the accuracy, quality, legality, reliability, and appropriateness of all Customer Data. Customer shall ensure that it is entitled to transfer the relevant Customer Data to Company so that Company and its service providers may lawfully use, process, and transfer the Customer Data in accordance with this Agreement on Customer’s behalf. Customer shall promptly notify Company if it becomes aware of any unauthorized use or access to Customer’s account or the Service.
2.8. Customer’s Use of Third Party Services. Customer may now or in the future have the ability to install or enable third party services for use with the Service, such as online applications, offline software products, or services that utilize a Company API in connection with Customer’s use of the Services provided that this does not include third party services or products embedded within the Service that Customer has no ability to select or install (“Third Party Services”). Any acquisition and use by Customer or its Users of such Third Party Services is solely the responsibility of Customer and the applicable third party provider. Customer acknowledges that providers of such Third Party Services may have access to Customer Data in connection with the interoperation and support of such Third Party Services with the Service. To the extent Customer authorizes the access or transmission of Customer Data through a Third Party Service, Company shall not be responsible for any use, disclosure, modification or deletion of such Customer Data or for any act or omission on the part of such third party provider or its service.
2.9. Removal of Content. If Customer receives notice that Content must be deleted or use thereof discontinued to avoid violating applicable law, third-party rights, or other obligations, Customer will promptly do so. If Customer does not take required action in accordance with the above, or if in Company’s judgment continued violation is likely to reoccur, Company may disable or remove the applicable Content. If requested by Company, Customer shall confirm such deletion and discontinuance of use in writing and Company shall be authorized to provide a copy of such confirmation to any such third party claimant or governmental authority, as applicable. In addition, if Company is required by any third party rights holder to remove Content, or receives information that Content provided to Customer may violate applicable law or third-party rights, Company may discontinue Customer’s access to Content through the Services.
2.10. Machine Learning. The Services include machine learning that develops over time by using data, data categories and parameters (collectively, “Parameters”), including but not limited to Customer Data, to discover new correlations, relationships, aggregations, summary data, trained algorithms, trained models, optimizations, predictions, patterns, and other output generated by employing artificial intelligence techniques (collectively, “Correlations”). Correlations are not specific to the Customer Data and will not include information that identifies Customer or Customer personnel. As such, while Customer owns the Customer Data as set forth in this Agreement, Customer agrees that Company will own all right, title, and interest in and to the Correlations developed by the Service. Similarly, Customer agrees that notwithstanding anything else to the contrary in this Agreement, Company is also free to use any General Knowledge that results from access to or work with Customer Data. For purposes of this Agreement, “General Knowledge” means information, ideas, concepts, know-how, techniques, and/or skills of a general nature that are retained in the minds of Company personnel as a result of working with or access to Customer Data.
2.11. Free Services.
(a) Free Trial. Company may make certain Service(s) available to Customer on a trial basis free of charge (“Free Trial”), including for example, diagnostic services. Free Trials shall terminate on the earlier to occur of (a) the end of the applicable free trial period, or (b) the start date of any Subscription ordered by Customer for such Service(s), or (c) termination by Company of the Free Trial in its sole discretion. Additional trial terms and conditions may appear on a trial registration or other web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
(b) Free Services. Company may make Free Services available to Customer. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this Section 2.11 (Free Services) and any other portion of this Agreement, this section shall control. Free Services are provided to Customer without charge up to certain limits as provided by Company in connection with the applicable Free Services (“Free Service Limits”). Usage over the Free Service Limits is not authorized by Company and requires Customer’s purchase of additional services. Customer agrees that Company, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof at any time. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that Company will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer’s access to the Free Services for any reason, provided that if Company terminates Customer’s account, except as required by law Company will provide Customer a reasonable opportunity to retrieve its Customer Data. For purposes of this Agreement, the term “Free Services” means services or functionality that may be made available to Customer to try at its option at no additional charge and which are designated as free, pilot, beta, evaluation, limited release, developer preview, non-production, evaluation, or by other similar description. Free Services include the Services when offered for free or offered during any free trial period, as well as Free Trials.
(c) Free Services Disclaimer. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, ANY ORDER FORM, OR ELSEWHERE, INCLUDING BUT NOT LIMITED TO THE “WARRANTIES; DISCLAIMER” SECTION AND “INDEMNIFICATION BY COMPANY” SECTIONS SET FORTH BELOW, ALL FREE SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE,” AND COMPANY AND ITS AFFILIATES AND THIRD PARTY PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURARY OF THE FREE SERVICES, NOR DOES COMPANY MAKE ANY WARRANTY, GUARANTY, OR OTHER COMMITMENT RELATED TO THE ACCURACY OR COMPLETENESS OF ANY RESULTS CUSTOMER OR ITS USERS MAY OBTAIN BY USING THE FREE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY DIAGNOSTICS, PREDICTIONS, OR PREDICTIVE ANALYTICS INCLUDED IN SUCH RESULTS), AND CUSTOMER IS SOLELY RESPONSIBLE FOR ITS USE AND RELIANCE ON ANY SUCH RESULTS. COMPANY DOES NOT WARRANT THAT THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT COMPANY WILL CORRECT ANY DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. COMPANY IS NOT RESPONSIBLE FOR, AND DISCLAIMS ALL LIABILITY RELATED TO, DELAYS, DELIVERY FAILURES, INTERCEPTION, ALTERATION, OR OTHER DAMAGE RESULTING FROM MATTERS OUTSIDE OF ITS CONTROL, INCLUDING WITHOUT LIMITATION PROBLEMS INHERENT IN THE USE OF THE INTERNET, MOBILE, AND PERSONAL COMPUTING DEVICES, TRANSMISSION OF ELECTRONIC COMMUNICATIONS OVER THE INTERNET OR OTHER NETWORKS, AND THIRD PARTY HOSTING SERVICE PROVIDERS. COMPANY SHALL HAVE NO INDEMNIFICATION OBLIGATION WITH RESPECT TO THE FREE SERVICES AND NO LIABLITY OF ANY TYPE WITH RESPECT TO FREE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE COMPANY’S LIABILITY WITH RESPECT THERETO SUCH SHALL NOT EXCEED US $500. ANY DATA CUSTOMER ENTERS INTO THE FREE SERVICES DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER EITHER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL, PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA BEFORE THE END OF THE FREE TRIAL PERIOD. NOTWITHSTANDING ANYTHING TO THE CONTRARY STATED IN THE “LIMITATION OF LIABILITY” SECTION BELOW OR ELSEWHERE IN THIS AGREEMENT, CUSTOMER SHALL BE FULLY LIABLE TO COMPANY AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF FREE SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT, AND CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
3.1. Fees and Payment. Customer shall pay fees set forth in an applicable Order Form (“Fees”) and other amounts due as follows. Unless otherwise specified in an Order Form, Subscription Fees are based on annual periods (or pro rata portions thereof, calculated on a daily basis) that begin on the Subscription start date and each annual anniversary thereof. Customer’s Subscription Fees are set forth in the applicable Order Form and are payable annually in advance within thirty (30) days of the invoice date. Customer is responsible for providing complete and accurate billing information to Company. Customer shall pay all undisputed Fees when due and, if such Fees are being paid via credit card or other electronic means, Customer authorizes Company to charge such Fees using Customer’s selected payment method. If Customer disputes any part of an invoice in good faith, Customer shall provide Company with notice and detail of the dispute prior to the invoice due date, and pay the undisputed portion by the invoice due date. Except as otherwise specified in an Order Form: (a) Fees are quoted and payable in United States dollars; (b) Fees are based on the terms set forth in the applicable Order Form, including but not limited to the version of the Services purchased; (c) quantities purchased cannot be decreased during the Subscription Term; (d) Subscription Fees are based on Services and not actual usage; and (e) payment obligations are non-cancelable and Fees paid are non-refundable unless otherwise provided herein. If Customer requires the use of a purchase order or purchase order number, Customer shall provide the purchase order number at the time of purchase.
3.2. Suspension for Failure to Pay. (a) Company reserves the right to suspend Customer’s account, in addition to all of its other available rights and remedies, in the event that Customer’s account becomes overdue and is not brought current within ten (10) business days following written notice (email acceptable) from Company that such account is past due. (b) Late and/or unpaid amounts shall be subject to interest at the lesser of one and one-half percent (1.5%) per month or the maximum permitted by law plus all costs a collection costs. Suspension shall not relieve Customer’s obligation to pay amounts due. Company will not exercise its rights under this Section if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
3.3. Taxes. Fees do not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including but not limited to sales, use, excise, value-added, goods and services, consumption, withholding, and other similar taxes or duties (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder (excluding taxes based on Company’s net income). If a payment by Customer is subject to withholding taxes or any other taxes in accordance with Applicable Law, Customer shall increase the fees payable to Company by an amount sufficient to fully offset the impact of such withholding tax or other taxes, such that Company will receive the full amounts due under this Agreement. Customer agrees to use their best efforts to determine whether the withholding tax can be reduced or eliminated under an applicable tax treaty, and Company agrees to act in good faith to provide documentation necessary to evidence qualification under any such tax treaty. Customer shall remit any such withholding to the relevant authority on a timely basis and provide to Company documentation to evidence payment of such withholding taxes. Customer shall be responsible for any taxes, penalties, or interest that may apply based on Company’s failure to charge appropriate tax due to incomplete or incorrect information provided by Customer. If Customer is exempt from certain taxes, Customer shall provide proof of such exemption to Company without undue delay upon execution of the applicable Order Form.
3.4. Authorized Solutions Partner. For any Services acquired by Customer through a third party expressly authorized by Company for such purpose (referred to for purposes hereof as an “Authorized Solutions Partner”), Sections 3.1 – 3.4 above in this Section 3 shall not apply (except for Company’s suspension rights under Section 3.2(a) above). While all other terms of this Agreement shall continue to apply exclusively to Company and Customer as stated herein, Customer shall contract directly with the applicable Authorized Partner with respect to payment for the purchase of the Services provided hereunder.
4. TERM, TERMINATION, AND EFFECT OF TERMINATION
4.1. Term. The term of this Agreement commences on the Effective Date and shall, unless earlier terminated per Section 4.2 below, remain in effect until all Subscriptions to the Services granted in accordance with this Agreement have expired or been terminated (“Term”).
4.2. Termination. Either party may terminate this Agreement by written notice to the other party in the event that: (i) such other party materially breaches this Agreement and does not cure such breach within thirty (30) days of receipt of such notice from the non-breaching party, except termination will take effect upon notice in the event of a breach of Section 2.3 (Usage Restrictions); or (ii) such 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 and such proceedings are not dismissed within sixty (60) days. Customer may terminate this Agreement on thirty (30) days’ prior written notice to Company if Customer does not agree to changes made to this Agreement by Company as first set forth above.
4.3. Treatment of Customer Data Following Expiration or Termination. Customer agrees that following expiration or termination of this Agreement, Company may immediately deactivate Customer’s account(s) associated with the Agreement. Upon written request by Customer received by Company within thirty (30) days after the effective date of expiration or termination, Company shall make Customer Data available to Customer for export. After such thirty (30) day period, Company shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, be entitled to delete all Customer Data in its systems or otherwise in its possession or under its control.
4.4. Effect of Termination. Upon expiration or termination of this Agreement for any reason, all Subscriptions and any other rights granted to Customer under this Agreement shall immediately terminate, and Customer shall immediately cease all use of the Service. Upon any termination by Customer pursuant to Section 4.2 above, Company shall refund to Customer a prorated amount of prepaid, unused Fees applicable to the remaining portion of the Subscription Term measured from the effective date of termination. Upon any termination by Company pursuant to Section 4.2 above, Customer shall pay any unpaid Fees covering the remainder of the Subscription Term. In no event will any termination relieve Customer of the obligation to pay any Fees accrued or payable to Company for the Services in the period prior to the effective date of termination. The following sections shall survive expiration or termination of this Agreement: Sections 1 (Definitions), 2.3 (Usage Restrictions), 2.7(c) (Free Services Disclaimer), 3 (Fees), 4.3 (Treatment of Customer Data Following Expiration or Termination), 4.4 (Effect of Termination), 5 (Confidentiality), 6 (Ownership), 7.4 (Disclaimer), 8 (Limitation of Liability), 9 (Indemnification), and 10 (General).
5.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a one party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of Company includes the Services and Content, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Conf. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section also apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Company services.
5.2. Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) and will (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, Affiliates, legal counsel, and accountants (collectively, “Representatives”) who need such access for purposes consistent with this Agreement and who have either signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein or are otherwise legally bound to confidentiality requirements, provided that a party that makes any such disclosure to its Representative(s) will remain responsible for such Representatives’ compliance with this “Confidentiality” section. Notwithstanding the foregoing, either party may disclose the terms of this Agreement to potential parties to a bona fide fundraising, acquisition, or similar transaction solely for purposes of the proposed transaction, provided that any such potential counter-party is subject to written non-disclosure obligations and limitations on use no less protective than those set forth herein.
5.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
6.2. By Company. Company and its licensors own and shall retain all right, title, and interest, including without limitation all related Intellectual Property Rights, in and to the following (including any and all enhancements, customizations, modifications, and derivative works thereof): the Service, Documentation, Usage Data, Correlations, Parameters, and Company Confidential Information. Subject to the limited rights expressly granted hereunder, Company, its Affiliates, its licensors reserve all of their right, title and interest in and to the Services, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.3. Third Party Data. The Services may include access for Customer to various confidential and proprietary third party data that is utilized along with the Service, and all such data is owned by the applicable third party source or vendor. Customer may only use such data as part of the Services and may not extract or otherwise utilize any such data except as included in and in connection with the Service. This data is compiled from third party sources, including but not limited to, public records, user submissions, and other commercially available data sources. These sources may not be accurate or complete, or up-to-date and is subject to ongoing and continual change without notice. Neither Company nor its third party data sources make any representations or warranties regarding the data and assume no responsibility for the accuracy, completeness, or currency of the data.
6.4. Suggestions. Company welcomes feedback from its customers about the Services. If Customer (or any User) provides Company with any feedback or suggestions regarding the Services (“Feedback”), Company may use, disclose, reproduce, sublicense, or otherwise distribute and exploit the Feedback without restriction or any obligation to Customer or any Authorized User provided that Company shall not identify Customer or any User as the source of such Feedback.
7. WARRANTIES; DISCLAIMER
7.1. Mutual. Each party represents that (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization, (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement and the Order Form(s), (c) the execution of the Order Form(s) by its representative whose signature is set forth thereon has been duly authorized by all necessary corporate or organizational action of such party, and (d) when executed and delivered by both parties, the Order Form(s) and this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
7.2. Service Warranty. Company warrants during the applicable Subscription Term that: (a) the Services shall perform materially in accordance with the applicable Documentation; and (b) Company shall not materially degrade the functionality of the Service. For any breach of the foregoing warranties, as Company’s sole liability and Customer’s exclusive remedy, Company shall correct any material reproducible impairments to the features and functionality of the Services so that they materially conforms to the applicable warranty, and if Company is unable to provide the Services as warranted within a commercially reasonable time following receipt of written notice of breach, Customer shall be entitled to terminate the applicable Order Form and receive a prorated refund of any prepaid, unused Fees applicable to the remaining portion of the Subscription Term measured from the effective date of termination.
7.3. By Customer. Customer represents, warrants and covenants to Provider that Customer owns or otherwise has the necessary rights and consents in and relating to the Customer Data so that it may legally provide such Customer Data to Company for processing in accordance with this Agreement.
7.4. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR IN SECTIONS 7.1 AND 7.2 ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICE, CONTENT, AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND COMPANY AND ITS AFFILIATES AND THIRD PARTY PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURARY OF THE SERVICES, NOR DOES COMPANY MAKE ANY WARRANTY, GUARANTY, OR OTHER COMMITMENT RELATED TO THE ACCURACY OR COMPLETENESS OF ANY RESULTS CUSTOMER OR ITS USERS MAY OBTAIN BY USING THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY PREDICTIONS OR PREDICTIVE ANALYTICS INCLUDED IN SUCH RESULTS), AND CUSTOMER IS SOLELY RESPONSIBLE FOR ITS USE AND RELIANCE ON ANY SUCH RESULTS. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT COMPANY WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. COMPANY IS NOT RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITY RELATED TO DELAYS, DELIVERY FAILURES, INTERCEPTION, ALTERATION, OR OTHER DAMAGE RESULTING FROM MATTERS OUTSIDE OF ITS CONTROL, INCLUDING PROBLEMS INHERENT IN THE USE OF THE INTERNET, MOBILE, AND PERSONAL COMPUTING DEVICES, TRANSMISSION OF ELECTRONIC COMMUNICATIONS OVER THE INTERNET OR OTHER NETWORKS, AND THIRD PARTY HOSTING SERVICE PROVIDERS.
8. LIMITATION OF LIABILITY
8.1. Exclusion of Consequential and Related Damages. EXCEPT FOR CLAIMS FOR A PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) AND SUBJECT TO SECTION 8.2 BELOW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, LOSS OF USE, ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
8.2. Limit of Liability. EXCEPT FOR CLAIMS REQUIRED TO BE INDEMNIFIED UNDER SECTION 9 BELOW (INDEMNIFICATION) AND CLAIMS FOR AMOUNTS DUE HEREUNDER, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY OR ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ORDER FORM UNDER THIS AGREEMENT (WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO COMPANY UNDER THE APPLICABLE ORDER FORM IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING ANYTHING HEREIN, THE MAXIMUM AGGREGATE LIABILITY FOR A PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) SHALL BE TWO HUNDRED THOUSAND DOLLARS.
8.3. The provisions of this Section 8 allocate the risks under this Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into this Agreement.
9.1. Indemnification By Company. Company shall defend Customer from and against any claim, demand, suite, or proceeding (“Claim”) made or brought against Customer by a third party to the extent alleging that Customer’s authorized use of the Services infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of that third party (each, a “Claim Against Customer”), and Company shall indemnify and hold the Customer harmless against any damages, reasonable attorneys’ fees, and costs finally awarded against Customer as a result of, or for any amounts paid by the Customer under an Company-approved settlement of, a Claim Against Customer; provided, however, in no event will Company have any obligations or liability under this Section 9.1 to the extent a Claim Against Customer arises from: (a) Customer or any User’s use of the Services other than as permitted under this Agreement; or (b) use of the Services in a modified form or in combination with products, services, content, or data not furnished to Customer by Company. If the Services become, or in Company’s reasonable judgment is likely to become, the subject of a claim of infringement, then Company may in its sole discretion: (a) obtain the right, at Company’s expense, for Customer to continue using the Service; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Services so that it is no longer infringing. If Company, in its sole and reasonable judgment, determines that none of the above options are commercially reasonable or practicable, then Company may suspend or terminate Customer’s use of the Service, in which case Company’s sole liability and Customer’s sole remedy shall be to provide Customer with a prorated refund of any prepaid, unused Fees applicable to the remainder of the Subscription Term. This Section 9.1 states Company’s sole liability and the Customer’s exclusive remedy for claims required to be indemnified hereunder.
9.2. Indemnification By Customer. Customer shall defend Company from and against third party Claims made or brought against Company by a third party to the extent arising in connection with Customer Data or use of the Customer Data with the Services, any unauthorized use of the Services by Customer or its Users, or any non-Company application, product, or service provided by Customer(each, a “Claim Against Company”), and Customer shall indemnify and hold the Company harmless against any damages, reasonable attorneys’ fees, and costs finally awarded against Company as a result of, or for any amounts paid by the Company under a Customer-approved settlement of, a Claim Against Company.
9.3. Indemnification Process. Each party’s obligations as set forth in this Article are subject to the indemnified party: (a) giving the indemnifying party prompt written notice of any such claim or the possibility thereof; (b) giving the indemnifying party sole control over the defense and settlement of any such Claim; and (c) providing full cooperation in good faith in the defense of any such claim. Failure to give prompt notice shall not constitute a waiver of the indemnified party’s right to indemnification and shall affect the indemnifying party’s obligations under this Agreement only to the extent that the indemnifying party’s rights are materially prejudiced by such failure or delay. Any settlement requiring the party seeking indemnification to admit liability or make any financial payment shall require such party’s prior written consent, not to be unreasonably withheld or delayed.
10.1. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
10.2. Export Compliance. The Services, Content, other Company technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Company and Customer each represents that it is not named on any U.S. government denied-party list. Customer will not permit any User to access or use any Services or Content in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation and will comply with all applicable export control laws and regulations related to its use of the Services and Content.
10.3. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
10.4. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
10.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
10.6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. This Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. There are no third-party beneficiaries under this Agreement.
10.7. Governing Law; Venue. This Agreement and any disputes arising under it will be governed by the laws of the State of California without regard to its conflict of laws provisions, and each party consents to the personal jurisdiction and venue of the state or federal courts located in San Francisco, California. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
10.8. Informal Dispute Resolution and Arbitration. The parties agree that most disputes can be resolved without resort to litigation. The parties agree to use their best efforts to settle any dispute directly through consultation with each other before initiating a lawsuit or arbitration. If, after good faith negotiations the parties are unable to resolve the dispute, the parties agree that any and all disputes arising out of or in any way relating to this Agreement, including without limitation its existence, validity or termination, shall be resolved according to California law and exclusively by binding arbitration before a single arbitrator with the Judicial Arbitration and Mediation Service (JAMS) and pursuant to the then existing arbitration rules at JAMS. If the parties cannot agree upon selection of an arbitrator, then JAMS shall appoint an arbitrator experienced in the enterprise software industry. The place of the arbitration will be San Francisco, CA. The arbitration will be conducted in English. The arbitrator shall provide detailed written findings of fact and conclusions of law in support of any award. Judgment upon any such award may be enforced in any court of competent jurisdiction. Notwithstanding the foregoing, the parties agree that damages may be an inadequate remedy in the case of any actual or threatened breach of certain terms of this Agreement (including any unauthorized disclosure of Confidential Information, infringement of a party’s Intellectual Property Rights, and enforcement of an arbitration award hereunder), and that either party shall be entitled to seek equitable relief (without the requirement of posting a bond or other security) in any court of competent jurisdiction in addition to any other remedies such party may have under this Agreement court.
10.9. Notices. Company may give general notices related to the Services that are applicable to all customers by email, text, in-app notifications, or by posting them on the Company website or through the Services and such electronic notices shall be deemed to satisfy any legal requirement that such notices be made in writing. All other notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the fifth business day after mailing by prepaid certified U.S. mail return receipt requested, (c) the second business day after sending by nationally recognized courier service, or (d), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email without notice of non-delivery. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be sent to the Customer address set forth in the applicable Order Form. All notices to Company will be sent to Archipelago Analytics, Inc., 8 California Street, San Francisco, CA 94111, Attn: Legal Dept., with a copy emailed to email@example.com.
10.10. Government End User. If Customer is a U.S. government entity or if this Agreement otherwise becomes subject to the Federal Acquisition Regulations (“FAR”), Customer acknowledges that elements of the Services constitute software and documentation and are provided as “Commercial Items” as defined in 48 C.F.R. 2.101 and are being licensed to U.S. government User as commercial computer software subject to restricted rights described in 48 C.F.R. 2.101, 12.211 and 12.212. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of the Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement ("DFARS") and its successors. This U.S. Government End User Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data.
10.11. Publicity. Company may include Customer’s name and logo in Company’s online customer list and in print and electronic marketing materials.
10.12. Force Majeure. Neither party will be liable for delayed or inadequate performance of its obligations hereunder (other than for payment of amounts due) if such delay or failure arises from any cause or condition beyond the reasonable control of the affected party, including but not limited to natural disasters, fire, flood, epidemic, pandemic, civil disturbance, act of a public enemy or terrorist, act of any military, civil, regulatory, or governmental authority, change in law or regulation, labor conditions, interruption or failure of the Internet or any utility service, or denial of service attacks, unavailability of supplies, or any other cause, whether similar or dissimilar to any of the foregoing that could not have been prevented by such party with reasonable care (each a “Force Majeure Event”). The party affected shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations.
10.13. Entire Agreement; Order of Precedence. This Agreement, including all exhibits attached hereto, and all Order Form(s) hereunder, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes and replaces all prior or contemporaneous representations, understandings and agreements, whether written or oral, with respect to such subject matter. The parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this agreement, express or implied, except for the representations and warranties set forth in this Agreement. Except as otherwise expressly provided herein, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms of this Agreement shall prevail except to the extent that the applicable Order Form term(s) expressly refer to and state the parties' intent to supersede specific terms of the Agreement. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
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