AI-Driven Process Mining
© 2025 Bloomfilter All rights reserved
This Subscription and Services Agreement (this “Agreement”) is a legal agreement between Bfilter, Inc, a Delaware corporation (“Company”), and the purchaser of the Software Subscription identified in the Program Order Form(s)attached hereto ("Customer"), for the term specified in the applicable Program Order Form. Company and Customer may be referred to in this Agreement individually as a “party” and collectively as “parties”.
1. Software.
1.1 Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Company will provide Customer a limited, non-exclusive, nontransferable right to access and use the software-as-a-service offerings specified in the applicable Program Order Form and as further described in the Documentation (the “Software”) during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. “Authorized Users” means Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Software under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Software has been purchased hereunder. “Program Order Form” shall mean the document executed by Customer and Company that outlines the specific Software, quantities and pricing purchased by Customer under this Agreement, which is attached hereto.
1.2 Documentation License. Company hereby grants to Customer a non-exclusive, non-sublicensable, nontransferable license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Software. “Documentation” means any manuals, instructions, or other documents or materials that Company provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Software or Company Materials (as defined in Section10.2), including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
1.3 Changes. Company reserves the right, in its sole discretion, to make any changes to the Software and Company Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Company’s services to its customers; (ii) the competitive strength of or market for Company’s services; or (iii) the Software’s cost efficiency or performance; or (b) to comply with applicable law.
1.4 Suspension or Termination of Software. Company may, directly or indirectly, by use of any lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other person’s access to or use of all or any part of the Software or Company Materials, without incurring any resulting obligation or liability, if: (a)Company receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Company to do so; or (b) Company believes, in its sole discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Software beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Documentation; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with the Software; or (iii) this Agreement expires or is terminated. This Section 1.4does not limit any of Company’s other rights or remedies, whether at law, in equity, or under this Agreement.
2. Services.
2.1 Technical Support. Except as otherwise agreed to by the parties in an applicable Program Order Form,Company will provide Customer with reasonable technical support services for the Software during the applicableSubscription Term in accordance with Company’s standard practice. “Subscription Term” means the period of time12during which Customer is subscribed to the Software, as specified in a Program Order Form and which shall beginupon delivery of the Software or as otherwise specified in a Program Order Form.
2.2 Professional Services. Any implementation, consulting, training, and similar professional services (the“Services”) specified in a Services Order Form shall be performed in a good, workmanlike, and professional manneraccording to industry standards. “Services Order Form” means the document agreed in writing by Customer andCompany which describes the professional services to be provided by Company to Customer under theAgreement, which is attached hereto. In the event of a conflict between any provisions of the Agreement and aServices Order Form, the provisions of the Agreement shall control, unless the Services Order Form expresslyreferences those provisions of the Agreement it intends to supersede and states the intention of the parties tosupersede those provisions.
3. Fees.
3.1 Payment Terms. Company shall invoice Customer annually in advance, unless otherwise set forth in theapplicable Program Order Form or Services Order Form. Customer shall pay all invoices submitted by or on behalfof Company within thirty (30) days of the date of invoice, without any unjustified deduction or set-off. Except fortermination by Company for a breach, if the Agreement and/or relevant Program Order Form or Services OrderForm is terminated early for any cause or if the access to the Software is terminated or suspended, Customer shallhave the right to refund the unused amount of Subscription Fees, payable by Company within thirty (30) days ofthe date of invoice, without any unjustified deduction or set-off. Payment can be made via credit card or check.
3.2 Pricing. Fees for Software or Services shall be specified in the applicable Program Order Form or ServicesOrder Form. All pricing is exclusive of taxes.
3.3 Fee Increases. Company’s fees for Services or Software as identified in a Program Order Form or ServicesOrder Form are fixed for the Term of the applicable Program Order Form or Services Order Form. After the term ofthe applicable Program Order Form or Services Order Form, Company may increase pricing annually for theSoftware or Services, as applicable, upon thirty (30) days’ advanced notice to Customer.
4. Term.
This Agreement begins on the Start Date and continues until terminated as set forth under this Agreement (the“Term”). The duration of Services Order Form or Program Order Form shall as set forth in the Program Order Formunless otherwise specified therein, and shall automatically renew as set forth in the Program Order Form unlesseither party gives written notice of non-renewal within thirty (30) days prior to the end of the current term. Uponexpiration or termination of an applicable Services Order Form or Program Order Form, Customer will no longerhave access to or the right to use the Services or Software, as applicable, unless the parties enter into anotherServices Order Form or Program Order Form for the continued use of the Services or Software.
5. Restrictions and Responsibilities.
Customer will not, and will not permit any Authorized User or any other person to, directly or indirectly, access oruse the Software or Company Materials except as expressly permitted by this Agreement and, in the case of thirdparty materials, the applicable third-party licenses. For purposes of clarity and without limiting the generality ofthe foregoing, Customer shall not, except as this Agreement expressly permits:
5.1 reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code orunderlying structure, ideas, know-how or algorithms relevant to Software;
5.2 modify, copy, translate, or create derivative works or improvements of, or based on, the Software or CompanyMaterials;
5.3 rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, use or otherwise make available theSoftware or Customer Materials to any person, including on or in connection with the internet or for timesharing orservice bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels;
5.4 bypass or breach any security device or protection used by the Software or Company Materials or access oruse the Software or Company Materials other than by an Authorized User through the use of his or her own validaccess credentials;
5.5 input, upload, transmit, or otherwise provide to or through the Software or Company’s systems, anyinformation or materials that are unlawful or injurious, or contain, transmit, or activate any software, hardware, orother technology, device, or means, including any virus, worm, malware, or other malicious computer code, thepurpose or effect of which is to (i) permit unauthorized access to, or to destroy, disrupt, disable, distort, orotherwise harm or impede in any manner any (A) computer, software, firmware, hardware, system, or network; or(B) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any dataprocessed thereby; or (ii) prevent Customer or any Authorized User from accessing or using the Software orCompany Systems as intended by this;
5.6 damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner theSoftware, Company’s systems, or Company’s provision of services to any third party, in whole or in part;
5.7 access or use the Software or Company Materials in any manner or for any purpose that infringes,misappropriates, or otherwise violates any intellectual property right or other right of any third party (including byany unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any otherCompany customer), or that violates any applicable law; or
5.8 input, upload, transmit, or otherwise provide to or through the Software or Company’s systems any personallyidentifiable information, personal health information, or other data that is subject to regulation under applicableprivacy laws, other than Authorized User information associated with Access Credentials.
6. Compliance with laws.
Customer represents, covenants, and warrants that Customer will use the Software and related services only incompliance with Company’s standard published policies available at: http://www.thebloomfilter.com/terms-andconditions/, then in effect and all applicable laws and regulations. Although Company has no obligation to monitorCustomer’s use of the Software, Company may do so and may prohibit any use of the Software it believes may be(or alleged to be) in violation of the foregoing.
7. Equipment.
Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed toconnect to, access or otherwise use the Software, including, without limitation, modems, hardware, servers,software, operating systems, networking, web servers and the like (collectively, “Equipment”).
8. Data Security.
8.1 Company’s Security Obligations. Company will use administrative, physical, organizational, and technicalsafeguards reasonably designed to secure Proprietary Information of Customer and shall, at a minimum, maintainand comply with commercially reasonable information security requirements consistent with industry standards.
8.2 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all CustomerData, including its content and use; (b) all information, instructions and materials provided by or on behalf ofCustomer or any Authorized User in connection with the Services; (c) Customer's information technologyinfrastructure, including computers, software, databases, electronic systems (including database managementsystems), networks, and accounts, whether operated directly by Customer or through the use of third partyservices ("Customer Systems"); (d) the security and use of Customer's and its Authorized Users' AccessCredentials; and (e) all access to and use of the Services and Company Materials directly or indirectly by orthrough the Customer Systems or its or its Authorized Users' Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on,such access or use. Customer will also be responsible for maintaining the security of Equipment, Customeraccount, passwords (including but not limited to administrative and user passwords) and files, and for all uses ofCustomer account or Equipment with or without Customer’s knowledge or consent. Customer shall employ allphysical, administrative, and technical controls, screening, and security procedures and other safeguardsnecessary to: (a) securely administer the distribution and use of all access credentials to the Software and protectagainst any unauthorized access to or use of the Software; and (b) control the content and use of Customer Data,including the uploading or other provision of Customer Data for processing by the Software or related services."Access Credentials" means any user name, identification number, password, license or security key, securitytoken, PIN or other security code, method, technology or device used, alone or in combination, to verify anindividual's identity and authorization to access and use the Services.
9. Confidentiality; Proprietary rights.
9.1 Proprietary Information. Each party (“Receiving Party”) understands that the other party (“Disclosing Party”)has disclosed or may disclose, directly or indirectly in connection with this Agreement, proprietary andconfidential business, technical or financial information relating to Disclosing Party’s business, technology, tradesecrets, know-how, plans, strategies, customers, and pricing, in each case whether or not marked, designated orotherwise identified as confidential (hereinafter referred to as “Proprietary Information” of Disclosing Party).Proprietary Information of Company includes but is not limited to non-public information regarding features,functionality and performance of Software and Company Materials. Proprietary Information of Customer includesnon-public data provided by Customer to Company to enable Company to provide Services and/or Software,including but not limited to messages and content in the Software; including any integrated third-partyapplications; personally identifiable information about Authorized Users such as names, location, IP address, anddomain; time and date from which an Authorized User accesses the Services and/or Software; and methods bywhich the Authorized User uses the Software and/or Services (“Customer Data”). Customer Data does not includeResultant Data (as defined below).
9.2 Protection of Proprietary Information. Receiving Party agrees to protect such Proprietary Information fromunauthorized use, access, or disclosure using at least the degree of care it uses to protect its confidentialinformation and in no event less than a reasonable degree of care, and not to use (except for as necessary toexercise its rights or perform its obligations under and in accordance with this Agreement or as otherwisepermitted herein) or divulge to any third person any such Proprietary Information. Notwithstanding anything to thecontrary in the foregoing, Receiving Party may disclose Proprietary Information of Disclosing Party to ReceivingParty’s affiliates, employees, officers, directors, agents, and subcontractors who: (a) need to know suchProprietary Information for purposes of Receiving Party’s exercise of its rights or performance of its obligationsunder and in accordance with this Agreement; (b) have been informed of the confidential nature of the ProprietaryInformation and Receiving Party’s obligations under this Section 9; and (c) are bound by confidentiality andrestricted use obligations at least as protective of the Proprietary Information as the terms set forth in this Section9.
9.3 Exclusions. Disclosing Party agrees that the foregoing will not apply with respect to any information thatReceiving Party can document: (a) is or becomes generally available to the public other than by Receiving Party’sor any of its representatives’ noncompliance with this Agreement; (b) was rightfully in its possession or known byit prior to receipt from Disclosing Party without any obligation to maintain its confidentiality or restriction on useor disclosure; (c) was rightfully disclosed to it without restriction by a third party that was not or is not, at the timeof such receipt, under any obligation to maintain its confidentiality; (d) was independently developed without useof any Proprietary Information of Disclosing Party; or (e) is required to be disclosed by law or governmentalauthority. If Receiving Party or any of its representatives is compelled by applicable law to disclose any ProprietaryInformation then, to the extent permitted by applicable law, Receiving Party shall: (i) promptly, and prior to suchdisclosure, notify Disclosing Party in writing of such requirement so that Disclosing Party can seek a protectiveorder or other remedy or waive its rights under Section 9; and (ii) provide reasonable assistance to Disclosing Partyin opposing such disclosure or seeking a protective order or other limitations on disclosure. If Disclosing Partywaives compliance or, after providing the notice and assistance required under this Section 9.3, Receiving Party15remains required by law to disclose any Proprietary Information, Receiving Party shall disclose only that portion ofthe Proprietary Information that Receiving Party is legally required to disclose.The Parties’ obligations of confidentiality shall be effective as of the Effective Date and shall remain in effect untilthe Agreement is terminated or expires under its terms. The Parties’ obligations will continue for a three-yearperiod thereafter.
10. Intellectual Property.
10.1 Customer Data. Customer will own all right, title and interest in and to Customer Data, as well as any data thatis based on or derived from Customer Data and provided to Customer as part of the Software and Servicesprovided hereunder. However, Customer hereby grants to Company a non-exclusive, non-transferable, worldwide,royalty-free, fully paid-up, perpetual, and irrevocable right and license to use such data (a) as is necessary or usefulto Company, its subcontractors and personnel to enforce this Agreement and exercise Company’s rights andperform its obligations hereunder, and (b) in aggregated or de-identified form for the purposes of providing andimproving Software and/or Services. Customer acknowledges that the Software and/or Services collects and usesCustomer Data. Customer agrees and consents to Company’s collection and use of the Customer Data to analyzeCustomer’s use of the Software and/or Services and to improve the Services and/or Software.
10.2 Company Materials. All right, title, and interest in and to the Company Materials, including all intellectualproperty rights therein, are and will remain with Company and, with respect to any third-party materials, theapplicable third-party providers own all right, title, and interest, including all intellectual property rights, in and tothe third-party materials. Customer has no right, license, or authorization with respect to any of the CompanyMaterials except as expressly set forth in Section 1.2 or the applicable third-party license, in each case subject toSection 6. All other rights in and to the Company Materials are expressly reserved by Company. In furtherance ofthe foregoing, Customer hereby unconditionally and irrevocably grants to Company an assignment of all right,title, and interest in and to the Resultant Data, including all intellectual property rights relating thereto. “CompanyMaterials” means the Software, Documentation, Services, and all other information, data, documents, materials,works, and other content, devices, methods, processes, hardware, software, and other technologies andinventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that areprovided or used by Company or any subcontractor of Company in connection with the Software or Services orotherwise comprise or relate to the Software or Services. For the avoidance of doubt, Company Materials includeResultant Data and any information, data, or other content derived from Company’s monitoring of Customer’saccess to or use of the Software, but do not include Customer Data. “Resultant Data” means data and informationrelated to Customer’s use of the Software that is used by Company in an aggregate and anonymized manner,including to compile statistical and performance information related to the provision and operation of theSoftware.
10.3. Feedback. If Customer or any of its employees or contractors sends or transmits any communications ormaterials to Company by mail, email, telephone, or otherwise, suggesting or recommending changes to theCompany Materials, including without limitation, new features or functionality relating thereto, or any comments,questions, suggestions, or the like (“Feedback”), Company is free to use such Feedback irrespective of any otherobligation or limitation between the parties governing such Feedback. Customer hereby assigns to Company onCustomer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, andCompany is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts,techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, althoughCompany is not required to use any Feedback.
11. Termination.
11.1 Termination for Cause. In addition to any other express termination right set forth elsewhere in thisAgreement either party may terminate this Agreement, effective immediately upon on written notice to the otherparty, if the other party: (a) materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii)16being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breachingparty with written notice of such breach; or (b) (i) becomes insolvent or is generally unable to pay, or fails to pay,its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy orotherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreignbankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or(iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court ofcompetent jurisdiction to take charge of or sell any material portion of its property or business.
11.2 Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expresslyotherwise provided in this Agreement: (a) all rights, licenses, consents, and authorizations granted by either partyto the other hereunder will immediately terminate; (b) Company shall immediately cease all use of any CustomerData or Customer’s Proprietary Information and (i) return to Customer, or at Customer's written request destroy,all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data orCustomer’s Proprietary Information; and (ii) permanently erase all Customer Data and Customer’s ProprietaryInformation from all systems Company directly or indirectly controls, provided that, for clarity, Company’sobligations under this Section 11.2(b) do not apply to any Resultant Data; (c) Customer shall immediately cease alluse of any Services or Company Materials and (i) promptly return to Company, or at Company’s written requestdestroy, all documents and tangible materials containing, reflecting, incorporating, or based on any CompanyMaterials or Company’s Proprietary Information; (ii) permanently erase all Company Materials and Company’sProprietary Information from all systems Customer directly or indirectly controls; and (iii) certify to Company in asigned written instrument that it has complied with the requirements of this Section 11.2(c); (d) notwithstandinganything to the contrary in this Agreement, with respect to information and materials then in its possession orcontrol: (i) Receiving Party may retain Disclosing Party’s Proprietary Information in its then current state and solelyto the extent and for so long as required by applicable law; (ii) Company may also retain Customer Data in itsbackups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course; and(iii) all information and materials described in this Section 11.2(d) will remain subject to all confidentiality, security,and other applicable requirements of this Agreement; (e) Company may disable all Customer and Authorized Useraccess to the Company Materials and (f) provide a refund of applicable fees, pursuant to Section 5.1 of theAgreement.
12. Representations and Warranties.
12.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (a) it isduly organized, validly existing, and in good standing as a corporation or other entity under the laws of thejurisdiction of its incorporation or other organization; (b) it has the full right, power, and authority to enter into andperform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grantunder this Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at theend of this Agreement has been duly authorized by all necessary corporate or organizational action of such party;and (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and bindingobligation of such party, enforceable against such party in accordance with its terms.
12.2 Additional Company Representations, Warranties, and Covenants. Company represents and warrants that (a)it will use reasonable efforts consistent with prevailing industry standards to maintain Software in a manner whichminimizes errors and interruptions in functioning of Software; provided that Software may be temporarilyunavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or bythird-party providers, or because of other causes beyond Company’s reasonable control, but Company will usereasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption; and (b)the Services will be performed in material conformance with the applicable Services Order Form. Customer shallnotify Company in writing of any claims under Section 12.2(b) within ten (10) business days following Company’sperformance of the defective Services. Company’s sole and exclusive liability, and Customer’s sole and exclusiveremedy, for a breach of Company’s warranty under Section 12.2(b) will be for Company to correct suchnonconformity within thirty (30) business days of the date that notice of the breach was provided; and, if17Company fails to correct the defective Services within such cure period, Customer may terminate the affectedServices Order Form and the portion for the defective Services in any related Program Order Form and receive arefund of fees paid.
12.3 Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, andcovenants to Company that Customer owns or otherwise has and will have the necessary rights and consents inand relating to the Customer Data so that, as received by Company and processed in accordance with thisAgreement, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights,or any privacy or other rights of any third party or violate any applicable law.
12.4 WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 12.1 ANDSECTION 12.2, ALL SOFTWARE, SERVICES, AND COMPANY MATERIALS ARE PROVIDED "AS IS." COMPANYSPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULARPURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING,USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OFANY KIND THAT THE SOFTWARE, SERVICES, OR COMPANY MATERIALS, OR ANY PRODUCTS OR RESULTS OFTHE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUTINTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE,SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERRORFREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OFOR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTYOWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
13. Limitation of liability; Indemnification.
13.1 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO CONTRARY, EXCEPT FOR BODILY INJURYOF A PERSON AND COMPANY’S INDEMNITY OBLIGATIONS FOR ANY THIRD-PARTY CLAIM, COMPANY ANDITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS),OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES WILL NOT BE RESPONSIBLE ORLIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONSRELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FORERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OFPROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) ANYINDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, ENHANCED, PUNITIVE, OR CONSEQUENTIAL DAMAGES; (C)FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT,TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMERTO COMPANY FOR THE SOFTWARE UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THATGAVE RISE TO THE LIABILITY; IN EACH CASE, WHETHER COMPANY HAS BEEN ADVISED OF THE POSSIBILITYOF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITSESSENTIAL PURPOSE. CUSTOMER WILL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECTMATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT,NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL,SPECIAL, ENHANCED, PUNITIVE, OR CONSEQUENTIAL DAMAGES; (B) FOR ANY MATTER BEYONDCUSTOMER’S REASONABLE CONTROL; OR (C) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTSASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THESOFTWARE UNDER THIS AGREEMENT IN THE 6 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THELIABILITY; IN EACH CASE, WHETHER CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCHDAMAGES AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIALPURPOSE.
13.2 Company Indemnification. Company shall indemnify and defend Customer and its subcontractors andaffiliates and each of their respective officers, directors, employees, agents, successors, and assigns (‘Customer Indemnitee’) from and against any and all Losses incurred by Customer Indemnitee resulting from any Action by athird party (other than an affiliate of Customer) 1. arising from or related to acts or omissions of Company towardsthe implementation of proper measure to enable security and confidentiality of Customer’s Data; 2. thatCustomer’s use of the Software or Services (excluding Customer Data and third-party materials, provided byCustomer or used at Customer’s sole discretion) in accordance with this Agreement (including theDocumentation) infringes or misappropriates such third party’s intellectual property rights. The foregoingobligation does not apply to the extent that the alleged infringement arises from: (a) third-party materials,provided by Customer or used at Customer’s sole discretion or Customer Data; (b) access to or use of theCompany Materials in combination with any hardware, system, software, network, or other materials or service notprovided by Company or specified for Customer's use in the Documentation, unless otherwise expressly permittedby Company in writing; (c) modification of the Company Materials other than: (i) by or on behalf of Company; or(ii) with Company’s written approval in accordance with Company’s written specification; (d) failure to timelyimplement any modifications, upgrades, replacements, or enhancements made available to Customer by or onbehalf of Company. “Losses” means any and all losses, damages, deficiencies, claims, actions, judgments,settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys'fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insuranceproviders. “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice ofviolation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal,administrative, regulatory, or other, whether at law, in equity, or otherwise.
13.3 Customer Indemnification. Customer shall indemnify and defend, Company and its officers, directors,employees, agents, successors, and assigns (each, a “Company Indemnitee”) from and against Losses incurred bysuch Company Indemnitee resulting from any Action by a third party (other than an affiliate of a CompanyIndemnitee) for alleged infringement by: (a) Customer Data, including any processing of Customer Data by or onbehalf of Company in accordance with this Agreement; (b) any other materials or information (including anydocuments, data, specifications, software, content, or technology) provided by or on behalf of Customer or anyAuthorized User; or (c) acts of gross negligence or willful misconduct in a course of the use of Software byCustomer or any Authorized User.
13.4 Indemnification Procedures. The indemnity obligations are subject to the following: (i) the Indemnified Partymust promptly notify the Indemnifying Party, in writing, of the suit, claim or proceeding or a threat of a suit, claimor proceeding; (ii) at the Indemnifying Party’s reasonable request and expense, the Indemnified Party must providethe Indemnifying Party with reasonable assistance for the defense or settlement of the suit, claim or proceeding;and (iii) the Indemnifying Party has sole control of the defense of any suit, claim or proceeding and all negotiationsfor settlement or compromise.
14. Independent contractors.
Customer and Company are independent contractors in all matters relating to this Agreement, and this Agreementwill not be construed to create a partnership, joint venture, agency, employment, or any other relationshipbetween Customer and Company.
15. Governing law.
This Agreement are governed by the laws of the State of Delaware, without giving effect to principles of conflictsof law. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses grantedhereunder will be instituted exclusively in the federal courts of the United States or the courts of the State ofDelaware, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, orproceeding. Service of process, summons, notice, or other document by mail to such party's address set forthherein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
16. Audit.
Company or its nominee (including its accountants and auditors) may inspect and audit Customer's use of theSoftware under this Agreement at any time during the Term and for one year thereafter, with a maximumfrequency of once per year and with at least fifteen days prior written notice. All audits will be conducted duringregular business hours and in a manner that does not unreasonably interfere with Customer’s business operations.Customer shall make available all such books, records, equipment, information, and personnel, and provide all suchcooperation and assistance, as may reasonably be requested by or on behalf of Company with respect to suchaudit. Company shall only examine information reasonably related to Customer’s use of the Software. If the auditdetermines that Customer’s use of the Software exceeded the usage permitted by this Agreement, Customer shallpay to Company all amounts due for such excess use of the Software. Customer shall make all payments requiredunder this Section 16 within thirty (30) days of the date of written notification of the audit results.
17. Final provisions.
17.1 Entire Agreement. This Agreement constitute the entire agreement between the parties with respect to itssubject matter and supersedes all prior agreements between the parties regarding the same subject matter.
17.2 Waiver; Modifications. This Agreement can be modified only by a written amendment signed by the parties.Failure to enforce any provisions of this Agreement will not constitute a waiver.
17.3 Severability. If any provision is unenforceable, the other provisions will remain effective.
17.4 Electronic Signatures; Counterparts. Parties may execute this Agreement by electronic signatures or byfacsimile in counterparts, which taken together will constitute one instrument.
17.5 Assignment. Neither party may assign or transfer this Agreement without the prior written consent of theother party.
17.6 Notices. Any notice under this Agreement must be in writing and delivered personally or by overnight courieror sent by email to the addresses in the signature blocks, below. Notices sent in accordance with this Section 17.6will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b)when received, if sent by a nationally recognized overnight courier, signature required; or (c) when sent, if byemail, with confirmation of transmission, if sent during the addressee's normal business hours, and on the nextbusiness day, if sent after the addressee’s normal business hours.
17.7 Headings. The section headings of this Agreement are for convenience only and have no value forinterpretation of this Agreement.
17.8 No Third-Party Beneficiaries. This Agreement are for the sole benefit of the parties hereto and their respectivesuccessors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon anyother Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of thisAgreement.
17.9 No Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury inrespect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
18. Survival.
The following provisions and any right or obligation of the parties in this Agreement that, by its nature, shouldsurvive termination or expiration of this Agreement, will survive termination or expiration of this Agreement: 9(Confidentiality; Proprietary rights), 10 (Intellectual Property), 13 (Limitations of liabilities; Indemnification), 15(Governing law) and 17 (Final provisions).
19. Force Majeure.
In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under orbreached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when andto the extent such failure or delay is caused by any circumstances beyond Party’s reasonable control (a “ForceMajeure Event”), including (i) acts of God; (ii) flood, fire, earthquake, epidemic, pandemic, or explosion; (iii) war,invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv)government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi)national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; and(viii) shortage of adequate power or transportation facilities. Either party may terminate this Agreement if a ForceMajeure Event continues substantially uninterrupted for a period of sixty (60) days or more. The Party shall provideprompt written notice to the other Party on the commencement of Force Majeure Event and circumstancessurrounding it.
20. Equitable Relief.
Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligationsunder Section 8 or Section 9 or, in the case of Customer, Section 6, would cause the other party irreparable harmfor which monetary damages would not be an adequate remedy and that, in the event of such breach orthreatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction,specific performance, and any other relief that may be available from any court, without any requirement to post abond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Suchremedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, orotherwise.
21. Non-solicitation.
During the period commencing on the Effective Date and ending one year following the termination or expirationof this Agreement, Company shall not, without Customer’s prior written consent, directly or indirectly solicit orencourage any person to leave the employment or other service of the Customer or its Affiliates.