Customer and Provider hereby agree as follows:
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON ENTERING INTO THIS AGREEMENT ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON ENTERING INTO THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.
1. TERM & TERMINATION.
1.1. Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue for one (1) year. Thereafter, the Term will automatically renew for successive periods of one (1) year, unless either party refuses such renewal by written notice 30 or more days before the renewal date.
1.2. Termination for Cause. Either party may terminate this Agreement for the other’s breach of this Agreement, including Customer’s or a User’s (as defined in Section 11.9) violation of the AUP (as defined in Section 11.1), by written notice (which may include e-mail communications), effective in 30 days unless the other party first cures such breach.
1.3. Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the System and delete, destroy, or return all copies of the Documentation (as defined in Section 11.3) in its possession or control. Customers understands and acknowledges that if the Agreement expires and/or is not renewed, Customer may not be able to access the System after that date. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Sections: 2 (Limitation of Liability), 3 (Indemnification), 4.3 (Warranty Disclaimers), 5 (Confidential Information), 6 (IP & Feedback); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
2. LIMITATION OF LIABILITY.
2.1. Dollar Cap. PROVIDER’S LIABILITY FOR ANY CLAIMS, LOSSES, INJURIES, SUITS, DEMANDS, JUDGMENTS, LIABILITIES, COSTS, EXPENSES OR DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATED TO THIS AGREEMENT) (TOGETHER, “CLAIMS”) AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, SHALL NOT, IN EACH INSTANCE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO PROVIDER DURING THE MONTH PRECEDING THE DATE OF SUCH CLAIMS.
2.2. Exclusion of Consequential Damages. IN NO EVENT WILL PROVIDER BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
2.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS SECTION 2 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF PROVIDER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 2, Provider’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Provider’s liability limits and other rights set forth in this Section 2 apply likewise to Provider’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
2.4. Demonstration or Beta System. If the System is furnished to Customer on a "Demonstration," “Evaluation,” "Beta" or "Test" basis, Customer acknowledges that: (a) Provider is furnishing the System to Customer solely for demonstration, evaluation, testing and/or feedback purposes; (b) Customer is strictly prohibited from using the System for any purposes other than (i) demonstration of its capabilities to prospective users of the System, (ii) evaluation and testing of the System for suitability for the period allowed in the applicable Order, or (iii) providing feedback to Provider; (c) testing does not include loading content prior to or for production use; (d) Provider makes no warranties or any other claims with regard to the System's usability, reliability, performance, or overall quality; (e) Provider reserves the right to delete or restrict access to any content uploaded by Customer during such an evaluation period (f) Customer will hold Provider harmless for any damages or losses resulting from the use of the System by Customer; and (g) Customer's access to and use of the System does not constitute a license or rights to sell, distribute, or commercialize the System. No compensation or refunds will be paid to Customer for any use of the System or for performing any service or giving any advice or analysis to, or for the benefit of, Provider.
Customer shall defend, indemnify, and hold harmless Provider and the Provider Associates (as defined below) against any “Indemnified Claim,” meaning any third-party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Users or by Customer's employees, as well as by Customer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data (as defined in Section 11.2); (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Customer’s account, including without limitation by Customer Data; (d) claims that use of the System through Customer’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising; and (e) claims arising out of breach or alleged breach of the AUP by the Customer, Customer’s employees, Customer’s customers, and Users. Indemnified Claims include, without limitation, claims arising out of or related to Provider’s negligence. Customer’s obligations set forth in this Section 3 include retention and payment of attorney's fees and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Provider will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Provider Associates” are Provider’s officers, directors, employees, shareholders, parents, subsidiaries, agents, successors, and assigns.) Customer shall be solely responsible for, and its indemnification obligation under this Section 3 shall extend to, all acts and omissions of any of its affiliates, successors, and permitted assigns, and its or their respective officers, directors, employees, agents, or contractors in the performance of its obligations under this Agreement.
4. REPRESENTATIONS & WARRANTIES.
4.1. From Provider. Provider represents and warrants that it is the owner of the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted to Customer in this Agreement without the further consent of any third party. Provider’s representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by Provider, including uploaders, plug-ins and other third-party software which a User may use to interact with the System. Third-party content and software used by Customer is at Customer’s sole risk. In the event of a breach of the warranty in this Section 4.1, Provider, at its own expense and discretion, will promptly take its choice of the following actions: (a) secure for Customer the right to continue using the System; (b) replace or modify the System to make it non-infringing; or (c) terminate the infringing features of the System. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Provider’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 4.1 and for potential or actual intellectual property infringement by the System.
4.2. From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable laws and regulations; and (d) it has, and will ensure to have, secured the all applicable rights to any material that it uploads to the System during its use thereof, and will indemnify Provider in accordance with Section 3 in the event that any claims arise out of its misuse of the System.
4.3. Warranty Disclaimers. Except to the extent set forth in the SLA (as defined in Section 11.7) and in Section 4.1 above, CUSTOMER ACCEPTS THE SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) PROVIDER HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) SUBJECT TO SECTION 10.2 AND TO ANNEX 3, PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) SUBJECT TO ITS OBLIGATIONS UNDER APPLICABLE DATA PROTECTION LAWS, PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
5. CONFIDENTIAL INFORMATION.
5.1. Definition. “Confidential Information” refers to the following items either Provider or Customer (the “Disclosing Party”) discloses to the other (the “Receiving Party”): (a) any document, material, communication or information the Disclosing Party marks or otherwise designates as “Confidential” at the time of disclosure; (b) the Documentation and software comprising the System, whether or not marked or designated “Confidential”; and (c) any other nonpublic, sensitive information disclosed by the Disclosing Party to the Receiving Party, whether or not marked or designated “Confidential.” Notwithstanding the foregoing, Confidential Information does not include information that: (i) is already in the Receiving Party’s possession at the time of disclosure; (ii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of the Receiving Party’s improper action or inaction; or (iv) is approved for release in writing by the Disclosing Party.
5.2. Nondisclosure. Provider and Customer shall not use Confidential Information for any purpose other than providing or using the System as their interests appear (the “Purpose”). The Receiving Party: (a) shall not disclose Confidential Information to any employee or contractor of the Receiving Party unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with terms no less restrictive than those of this Section 5; and (b) shall not disclose Confidential Information to any other third party without the Disclosing Party’s prior written consent. Without limiting the generality of the foregoing, each party shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. The Receiving Party shall promptly notify the Disclosing Party of any misuse or misappropriation of Confidential Information that comes to the Receiving Party’s attention. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. In such event, the Receiving Party shall give the Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with the Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at the Disclosing Party’s expense.
5.3. Injunction. Each party agrees that breach of this Section 5 would cause the Disclosing Party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the Disclosing Party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
5.4. Termination & Return. Upon termination of this Agreement, each party shall return all copies of Confidential Information to the Disclosing Party or confirm, in writing, the destruction thereof.
5.5. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto.
6. IP & FEEDBACK.
6.1. IP Rights to the System. Provider retains all right, title, and interest in and to the System and services and features provided therein, including without limitation all software used to provide the System and associated services, and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant Customer any intellectual property license or rights in or to the System or any of its components. Customer recognizes that the System and its components are protected by copyright and other laws.
6.2. Feedback. Provider has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Provider, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Provider’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Provider’s products or services.)
7. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
7.1. Acceptable Use. The System may only be used as intended, according to the capabilities made available through its various user interfaces and according to the documentation. Customer shall comply with the AUP. Additionally, Customer shall not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties to use, access or exploit the System; (b) provide System passwords or other log-in information to any third party; (c) share non-public System features or content with any third party; or (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System. In the event that it suspects any breach of the requirements of this Section 7, or the AUP, including without limitation by Users, Provider may suspend Customer’s access to the System without advanced notice, in addition to such other remedies as Provider may have. Neither this Agreement nor the AUP requires that Provider take any action against Customer or any User or other third party for violating the AUP, this Section 7, or this Agreement, but Provider is free to take any such action it sees fit.
7.2. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer shall notify Provider immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop and/or rectify said breach.
7.3. Customer Responsibility for Data. Customer is solely responsible for the development, content, operation, maintenance, and use of Customer Data, including, by way of example: (a) the management and manipulation of Customer Data; (b) compliance of Customer Data with all applicable laws, including but not limited to laws applicable to the cross-border transfer of Customer Data; (c) any Claims relating to Customer Data; and (d) prompt, proper handling and processing of notices sent to Customer by any person claiming that Customer Data violates such person’s rights, including notices pursuant to the Digital Millennium Copyright Act or any applicable data protection and privacy laws.
7.4. Compliance with Laws. In its use of the System, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
7.5. Users & System Access. Customer is responsible and liable for any use of the System through Customer’s account, whether authorized or unauthorized. All Users of the System must be employees of Customer or independent contractors who are bound by contractual obligation to use the System solely in the course of Customer’s business and strictly in accordance with this Agreement. All other uses of the System are strictly prohibited.
7.6. User Conduct. Customer is responsible and liable for Users’ use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer.
7.7. Compatibility. Customer understands that the System is compatible only with certain types of computers, operating systems, software such as web browsers, and filetypes or extensions, and that Customer is responsible for assuring the compatibility between its computer systems, filetypes, its software solutions, if any, and the System.
8. CUSTOMER DATA & PRIVACY.
8.1. Use of Customer Data. Unless it receives Customer’s prior written consent, Provider: (a) shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the services provided through the System; (b) shall not give any of its employees or subcontractors access to Customer Data except to the extent that such individual needs access to facilitate performance of Provider’s obligations under this Agreement; and (c) shall not give any third party (including without limitation Provider’s other customers) access to Customer Data. Notwithstanding the foregoing, Provider may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Provider shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense. Customer possesses and retains all right, title, and interest in and to Customer Data, and Provider’s use and possession thereof is solely on Customer’s behalf. Customer grants Provider and its affiliates and related entities, a worldwide, royalty-free, fully paid, perpetual, irrevocable, non-exclusive right and license to use, copy, reproduce, distribute, publish, display, modify, adapt, translate, archive, store, and create derivative works from such Customer Data, in any form, format, or medium, of any kind now known or later developed, in order to provide the services delivered through the System. Subject to Sections 7 and 8.6 and to Annex 2 (AUP), Customer may access and copy any Customer Data in Provider’s possession at any time, and Provider shall reasonably facilitate such access and copying promptly after Customer’s request.
8.4. Risk of Exposure. Provider shall exercise commercially reasonable efforts and safeguards to prevent unauthorized exposure or disclosure of Customer Data. Notwithstanding the foregoing, Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Customer assumes such risks. Provider offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties. As between Provider and Customer, Customer shall be solely responsible for transmitting Customer Data to, and retrieving Customer Data from, the System and to restrict access only to particular individuals who are permitted Users hereunder, or representatives of Provider to the extent that such representatives require access to facilitate performance under this Agreement. Customer waives all liability, claims, damages and suits against Provider, and all of its employees, officers, directors and contractors in any way related to the unauthorized disclosure of, or access to, information or documentation in the System, whether or not due to a defect in the System.
8.5. Data Accuracy. Provider shall have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by Users. Customer agrees to provide Provider with complete and accurate information when registering for an account.
8.6. Data Deletion. Provider may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.
8.7. Aggregate & Anonymized Data. Notwithstanding the provisions of this Section 8, Provider may use, reproduce, or otherwise exploit Aggregate Data in any way, including for the purpose of supporting and developing the System, in its sole discretion. (“Aggregate Data” refers to information Provider collects about a group or category of services or Users from which individual user identities have been removed. The visual and/or human-readable content of Customer Data is not Aggregate Data.)
9. FEES AND PAYMENT.
9.1. Fees. Customer shall pay Provider the applicable fees and charges set forth on the relevant section of the Website (as defined in Section 11.1)(the “Fees”) for each product or service used or purchased by Customer during the Term. For services purchased on a subscription basis, Customer will, unless a different payment cycle is agreed between the parties in writing, be invoiced on a recurring monthly basis for so long as Customer maintains a billable case in the System. Provider will not be required to refund paid Fees under any circumstances.
9.2. Payment Period. Payment under an invoice issued under Section 9.1 shall be due within five (5) calendar days of the date of the invoice, unless stated otherwise on the invoice. Such payment must be made electronically unless otherwise agreed in writing by Provider. Customer agrees that it shall promptly provide details of a valid credit card for billing purposes, and further agrees that Provider may charge any credit card attached to Customer’s account in Provider’s records for the purposes of payment under this Agreement. Customer understands and agrees that, in addition to its other remedies for non-payment under this Agreement and under the law, Provider may send delinquent or overdue accounts to third-party collections agencies for recovery of dues.
10. THE SYSTEM.
10.1. Use of the System. During the Term, and provided Customer is current with payment of all Fees and charges due to Provider, Customer may access and use the System pursuant to Provider’s policies posted on its Website, as such policies may be updated from time to time.
10.2. Service Levels. Provider shall provide the remedies listed in the SLA for any failure of the System listed in the SLA. Such remedies are Customer’s sole remedy for any failure of the System, and Customer recognizes and agrees that if the SLA does not list a remedy for a given failure, it has no remedy. Credits issued pursuant to the SLA apply to outstanding or future invoices only and are forfeit upon termination of this Agreement. Provider is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation after termination of this Agreement.
10.3. Documentation. Customer may reproduce and use the Documentation solely as necessary to support Users use of the System.
10.4. System Revisions. Provider may revise System features and functions or the SLA at any time, including without limitation by removing such features and functions or reducing service levels. If any such revision to the System materially reduces features or functionality provided pursuant to this Agreement, Customer may within 30 days of notice of the revision terminate the Agreement.
11. DEFINITIONS. The following capitalized terms shall have the following meanings whenever used in this Agreement:
11.1. “AUP” means Provider’s Acceptable Use Policy, appended hereto as Annex 2.
11.2. “Customer Data” means data in electronic form that Customer or any User (a) runs on the System, (b) causes to interface with the System, or (c) uploads to the System under Customer’s account or otherwise transfers, processes, uses or stores in connection with Customer’s account.
11.3. “Documentation” means Provider’s standard manual related to use of the System, as well as any bulletins, instructions, memoranda, or similar information produced by Provider and related to the Customer’s use of and interface with the System.
11.5. “System” means Provider’s proprietary cloud-based, e-discovery application and data archiving system, marketed as ‘GoldFynch’, including the Website, all tools (whether paid or free) and any hosted software services made available via said Website (e.g. any dashboards, character recognition tools, or other services), as well as all hardware and software incorporated into the System. For the avoidance of doubt, GoldFynch is a proprietary content management and storage service, designed to facilitate high-volume document management, organization, search, and e-discovery requirements through a cloud-based application accessed by its subscribers over the Internet. The GoldFynch System is comprised of web-based software running locally on Customer’s browser and proprietary software running on GoldFynch’s cloud-based servers. GoldFynch does not run software at Customer’s site and all requests for data are transmitted over the Internet.
11.6. “SLA” means Provider’s standard Service Level Agreement, appended hereto as Annex 3.
11.7. “User” means any individual who uses the System on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
11.8. “Website” means the Provider’s website located at the domain name https:// goldfynch.com, or such other website maintained by the Provider from time to time through which a service is made available to Customer, along with all content in such website.
12.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Provider employee or contractor will be an employee of Customer.
12.2. Notices. Provider may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to email@example.com, and such notices will be deemed received 72 hours after they are sent.
12.3. Communication. Customer understands and agrees that unless otherwise specified by Provider, all communication between parties shall take place via email and that Provider will only communicate with Users authorized to access the Customer account. Customer is responsible for making sure their primary account email is accessible and monitored, and that Provider’s domain and email addresses are added to their “safe sender” list. Customer must submit all support requests through Provider’s software ticketing system (goldfynch.freshdesk.com) Provider’s in-app support system, or a mail to firstname.lastname@example.org.
12.4. Force Majeure. No delay, failure, or default, other than a failure to pay Fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, national or international health emergencies, or other causes beyond the non-performing party’s reasonable control.
12.5. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Provider’s express written consent. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
12.6. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
12.7. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
12.8. Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of Iowa, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Johnson County, Iowa. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in Cedar Rapids, Iowa, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys’ fees.
12.10. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
12.11. Technology Export. Customer shall not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by Provider or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
12.12. Digital Millennium Copyright Act Compliance. Please see Annex 1 - “Attachment 12.12”, which is incorporated into this Agreement.
12.13. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
This policy statement lists Provider’s requirements for notice of copyright infringement and for responses to such a notice if Customer (“you”) or your materials are accused.
Provider (“us” or “we”) uses the copyright infringement procedures of the Digital Millennium Copyright Act.
A. Notice of Copyright Infringement. To notify us of copyright infringement, please send a written communication to us, addressed to the attention of Copyright Notices, at the contact points listed below in Part C. That written communication should include the following:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material.
4. Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
B. Counter-Notice by Accused Subscriber. If you are a Customer and we have taken down your materials due to suspicion of copyright infringement, you may dispute the alleged infringement by sending a written communication to us, addressed to the attention of Copyright Notices, at the contact points listed in Part C below. That written communication should include the following:
1. A physical or electronic signature of the Customer.
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
3. A statement under penalty of perjury that the Customer has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
4. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which such address is located, or if the subscriber’s address is outside of the United States, the Federal District Court for the Southern District of Iowa, and that the subscriber will accept service of process from the person who provided notification of copyright infringement or an agent of such person.
C. Agent for Notices. Please send all notices required by this policy to us, addressed to the attention of Copyright Notices, at Mazira, LLC, Attn: Copyright Notices, 136 S Dubuque St., Iowa City, IA 52240, +1 (866) 319-7983, email@example.com.
D. Termination of Repeat Infringers. In appropriate circumstances, we will terminate the accounts of subscribers who are repeat copyright infringers.
Revision of Policy. We may revise this policy at any time, including by posting a new version at this website.
Provider agrees to provide services to the Customer, subject to the following Acceptable Use Policy (AUP). By using the System, Customer accepts and agrees to the Acceptable Use Policy and the Applicable Terms.
For the purposes of this AUP, “System” includes the Provider’s ticketing system accessed via goldfynch.freshdesk.com, Provider’s in-app support system (if any), and email communication with the Provider via firstname.lastname@example.org or any other relevant email.
“User” means any individual who uses the System on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
This Acceptable Use Policy exists to give Customer a clear understanding of what Provider expects of them while they use the System. The Acceptable Use Policy is applicable to both Customers and Users who have unpaid accounts, as well as those who pay Fees to subscribe to the System.
In instances of a User’s inappropriate behavior, Provider prefers to issue a warning and take corrective action as needed; however, Provider reserves the right to immediately terminate Customer’s access to all or part of the System without warning. Provider refraining from taking action regarding a breach in this Agreement should not be considered a waiver of further breaches in the same or any other form.
Using Provider’s System in relation to the following constitute violations of Provider’s AUP:
1. Carrying out, assisting with, or enabling illegal activities. Provider maintains the right to cooperate with legal authorities and/or injured third parties in the event of an investigation of any suspected crime or civil offense.
2. Threats and harassment. Uploading to, or sharing material through, Provider’s System to harass, threaten, encourage bodily harm or destruction of property, including harassment, threats, abusive language or behavior towards Provider’s staff, employees, officers, or directors.
3. Harm to minors, or attempting to harm them in any capacity. This includes, but is not limited to explicit audio or visual material pertaining to minors.
4. Impersonation and forgery. Using Provider’s services and the System to add, remove, alter, or share information with the purpose of deceiving or misleading. For the removal of doubt, Customer’s use of Provider’s services and/or the System to represent itself or any of its employees, officers, agents, subcontractors or representatives as being a Provider employee, officer, agent, subcontractor, or representative, shall constitute a breach of this AUP.
5. Unsolicited commercial email. Sending out commercial or unsolicited bulk email through the System.
6. Unauthorized access of other Customers’ accounts. Accessing, or attempting to access the accounts of others, or penetrating or attempting to penetrate security measures of Provider, including circumventing user authentication of any account.
7. Unauthorized attempts to access or recreate any part of the System using API. This includes attempting to scrape data (displayed or otherwise) or attempting to decode, recode and construct queries programmatically, without the use of the System graphical user web interface(s). Prior authorization from Provider is required before attempting, trialing, or experimenting access to data in the Provider's web application through sources other than the System graphical user web interface(s).
8. Infringement of Copyright, Patent, Trademark, Trade Secret, or Intellectual Property Rights. Unauthorized uploading or sharing of any material that infringes any copyright, trademark, patent, trade secret or any other proprietary rights of a third party, including but not limited to unauthorized or unlawful copying of copyrighted material, digitization and distribution of books, photographs from magazines, or other copyrighted sources, and the unauthorized transmittal of software that is copyrighted.
9. Intentional distribution of viruses or other harmful software that attempts to and/or causes annoyance, harassment, or damage to another person’s computer system or data. This includes, but is not limited to network probing tools, password guessing programs, and cracking tools.
10. Inappropriate usage. Any usage of the System outside of intended purposes which impacts the performance of the System, software, or hardware.
11. Third-party access. A Customer will be held accountable for any third-party usage of their account that violates this AUP.
12. Attempting to interfere with or interrupt access to the service for any User. This includes, but is not limited to, attempting to “lock” the account of another Customer.
13. Verbal abuse or harassment. Any inappropriate behavior or language targeting a member of Provider’s staff.
Provider has no obligation to monitor User activity for breaches of the AUP; however, it reserves the right to deactivate or suspend Customer’s account if it is determined that Customer violated the terms of the AUP. Such deactivation or suspension may continue till an investigation is complete. Prior notification to Customer is not guaranteed. In the case of an extreme violation, law enforcement may be contacted regarding the activity. Customer will not be credited for any time their account was deactivated or suspended in such a fashion.
Actions Provider may take in response to breaches of the Acceptable Use Policy or Terms of Service include but are not limited to:
1. Issuing verbal or written warning
2. Suspending Customer’s account, requiring written agreement to refrain from further violations to re-activate the account
3. Termination of the offending account
4. Billing Customer for administrative expenses and/or reactivation fees
5. Pursuing legal action and/or to collect damages, if any, caused by the violations
The AUP may be changed from time to time at Provider’s discretion. Notice of any revision, amendment, or modification will be posted in accordance with the Terms of Service. Customer understands that a change to the Acceptable Use Policy by Provider shall not be grounds for early contract termination or non-payment.
All Customers and Users must adhere to the above policies. Failure to follow any term or condition will be grounds for immediate termination of Customer’s account.
If you have any questions regarding this policy, please contact us at email@example.com
Provider agrees that during the Term of the Agreement, the Service (as defined below) will be operational and available to Customers at least 99% of the time in any calendar month (subject to Scheduled Maintenance as defined below) (the “SLA“). If Provider does not meet the SLA, and if Customer meets its obligations under the SLA, Customer will be eligible to receive the Service Credits described below. This Service Level Agreement states Customer’s sole and exclusive remedy for any failure by Provider to meet the SLA.
The following definitions shall apply to this Service Level Agreement:
1. “Downtime” is the total number of minutes during which the Service is not operational and/or available (other than as a result of Scheduled Maintenance) to Customer.
2. “Monthly Uptime Percentage” is the total number of minutes in a calendar month minus the Downtime suffered in a calendar month, divided by the total number of minutes in a calendar month, multiplied by one hundred.
3. “Scheduled Maintenance” are those times where Provider notifies Customer of periods of expected Service disruptions.
4. “Service” is any paid GoldFynch subscription-based or non-subscription-based service provided as part of the System under the Agreement and via the web application available at www.goldfynch.com.
5. “Service Credit” is defined as follows: "Monthly Uptime Percentage value based on the paid subscription value of the Service added to the end of the Service term, at no charge to Customer," in accordance with the following:
< 99.0% – ≥ 97.5%
< 97.5% – ≥ 95.0%
In order to receive any of the Service Credits described above, Customer must notify Provider within thirty days from the time Customer becomes eligible to receive a Service Credit. Failure to comply with this requirement will forfeit Customer’s right to receive a Service Credit.
The aggregate maximum number of Service Credits to be issued by Provider to Customer for all Downtime that occurs in a single calendar month shall not exceed ten percent of the Fee, added to the Customer’s account as a credit term. Service Credits may not be exchanged for, or converted to, monetary amounts.
For the avoidance of doubt, loss of operationality and/or availability of the Service due to Scheduled Maintenance does not constitute Downtime for the purposes of the SLA. There will be no more than 10 hours of aggregate Scheduled Maintenance per calendar month.
The SLA does not apply to any services that expressly exclude this Service Level Agreement (as stated in the documentation for such services) or any performance issues: (i) caused by factors described in the “Limitation of Liability” section of the Terms of Service; (ii) that resulted from Customer or third party software or hardware, or as a result of action or inaction on behalf of the Customer or third party; (iii) that resulted from Customer’s web browser performance; (iv) that resulted from Rackspace and Linode service disruptions outside the control of Provider; (v) caused by factors outside of Provider’s reasonable control.