Software as a Service Agreement

Last updated: June 26, 2025

This Software as a Service Agreement (“Agreement”) applies to new Software Order Forms (“SOF”, as defined below) or renewals of existing SOFs effective on or after April 23, 2025.

If you are an existing Client and previously agreed to a version of the Agreement before April 23, 2025 the terms and conditions of this Agreement will go into effect upon the renewal date of your next SOF.

This Agreement is entered into by and between Arceo Labs, Inc., doing business as Resilience (the “Company” or “Resilience”) with its principal place of business at 55 Second Street, Suite 1950, San Francisco, CA 94105, and the entity indicated on the applicable Software Order Form (“SOF”, as defined below), or, where no SOF has been executed, the entity that otherwise acknowledges and agrees to this Agreement through the Resilience platform (in either case, the “Client”).

By executing a Software Order Form, or otherwise acknowledging this Agreement (including by electronic acceptance, click-through, or other means), Client accepts the terms and conditions contained in this Agreement, any SOF in which it is incorporated, and any document incorporated by reference herein or therein, which represent the parties’ entire agreement regarding the Software (as defined below).

1.
Definitions.
  • “Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the Software.
  • “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
  • “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person.
  • “Agreement” has the meaning set forth in the preamble.
  • “Authorized Users” means Client’s employees, consultants, contractors, and agents (a) who are authorized by Client to access and use the Software under the rights granted to Client pursuant to this Agreement; and (b) for whom access to the Software has been purchased hereunder.
  • “Availability Requirement” has the meaning set forth in Section 8.1.
  • “Available” has the meaning set forth in Section 8.1.
  • “Client” means the legal entity that enters into this Agreement with the Company, whether by executing a Software Order Form or by accepting the Agreement through the Resilience platform.
  • “Client Indemnitee” has the meaning set forth in Section 10.1.
  • “Client Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Client or an Authorized User by or through the Software, or that incorporates or is derived from the processing of such information, data, or content by or through the Software. For the avoidance of doubt, Client Data does not include Resultant Data.
  • “Company” has the meaning set forth in the preamble.
  • “Company Indemnitee” has the meaning set forth in Section 10.2.
  • “Company Materials” means the Software, Company Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Company or any subcontractor Company may engage in connection with the Software or otherwise comprise or relate to the Software or Company Systems. For the avoidance of doubt, Company Materials include Resultant Data and any information, data, or other content derived from Company’s monitoring of Client’s access to or use of the Software, but do not include Client Data. “Company Materials” also includes all discoveries, concepts and ideas, whether or not registrable under patent, copyright or similar statutes, including, but not limited to, patents, copyright, trademarks, trade secrets, processes, methods, formulae, techniques, tools, solutions, programs, data and documentation, as well as modifications and improvements thereof and know-how related thereto, which Company, alone, or jointly with others, its personnel, agents or employees, conceives, makes develops, acquires or obtains knowledge of at any time before, after, or during the term of the Agreement without breach of Company’s duty of confidentiality to Client. To the extent Company Materials may be included with, or embodied in, any work product delivered hereunder, Client shall have a perpetual, irrevocable, non-exclusive, worldwide, royalty-free license to use, execute, reproduce, display, perform, distribute internally, and prepare for internal use “derivative works,” as defined in the Copyright Act, 17 U.S.C. §101, based upon the Company Materials in each case solely in conjunction with the work product delivered hereunder.
  • “Company Systems” means the information technology infrastructure used by or on behalf of Company in providing the Software, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Company or through the use of third-party services.
  • “Confidential Information” has the meaning set forth in Section 6.1.
  • “Disclosing Party” has the meaning set forth in Section 6.1.
  • “Effective Date” means the effective date of the first Software Order Form referencing this Agreement.
  • “Force Majeure Event” has the meaning set forth in Section 12.8.
  • “Indemnitee” has the meaning set forth in Section 10.3.
  • “Indemnitor” has the meaning set forth in Section 10.3.
  • “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
  • “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
  • “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 insurance providers.
  • “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
  • “Receiving Party” has the meaning set forth in Section 6.1.
  • “Resultant Data” means data and information related to Client’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 the Software. As between Company and Client, all right, title, and interest in the Resultant Data, and all intellectual property rights therein, belong to and are retained solely by Company. Client acknowledges that Company may compile Resultant Data based on Client Data input into the Software.
  • “Scheduled Downtime” has the meaning set forth in Section 8.2.
  • “Service Credit” has the meaning set forth in Section 8.4.
  • “Service Level Failure” has the meaning set forth in Section 8.1.
  • “Software” means Company’s software-as-a-service offerings and any Third-Party Software supplied by Company, as described in the applicable Software Order Form.
  • “Software Order Form” (“SOF”) means a written document agreed upon and entered into between Company and Client specifying the Software to be provided by the Company, including any exhibits, addenda, and amendments thereto. By entering into a SOF, Client agrees to be bound by the terms of this Agreement.
  • “Term” has the meaning set forth in Section 4.1.
  • “Third-Party Materials” means materials and information, in any form or medium, including any (open-source or other) software, documents, data, content, specifications, products, equipment, or components of or relating to the Software that are not proprietary to Company (or an Affiliate of Company).
  • “Third-Party Product” means any product or software which is proprietary to any third party (other than an Affiliate of Company) which is or will be used by Company for the purposes of providing Software and/or services pursuant to the Agreement.
2.
Access and Use.
2.1.Access. Client may request that Company provide access to and use of its Software under the terms of this Agreement. For each such request, the parties will agree on a written SOF that sets forth the Software to be provided by the Company. Subject to the other terms and conditions of this Agreement, upon entering into a SOF, Company grants Client a limited, worldwide, non-exclusive, non-transferable (except as expressly permitted in this Agreement) license to access and use the Software during the term set forth in the applicable SOF, solely for use by Client and Authorized Users for internal business purposes in accordance with the terms and conditions contained in the Agreement.
2.2.Use by Affiliates. If Client’s Affiliates access and use the Software under this Agreement, Client will cause such Affiliates to comply with this Agreement as if they were Client and any reference to “Client” will be read to include such Affiliates. Any breach of the Agreement by an Affiliate of Client or their respective Authorized Users will be deemed a breach by Client of the Agreement and Client will be liable for such breach as if Client itself had breached the Agreement.
2.3.Client’s Responsibilities. Client agrees to obtain and securely maintain any equipment and ancillary services needed to connect to, access or otherwise use the Software, including, without limitation, hardware, servers, software, operating systems, networking, web servers, APIs and the like. Client will cooperate with Company in all matters relating to the obligations contemplated herein, respond promptly to any of Company’s requests for Client to provide direction, information, data, approvals, authorizations or decisions that are reasonably necessary for Company to provide the Software and to perform any related activities in accordance with this Agreement. Client understands and acknowledges that Company’s performance under this Agreement is conditioned on Client’s timely and effective performance of the foregoing.
2.4.Limitations and Restrictions. Client shall not, and shall not permit any other person or entity, to access or use the Software except as specifically allowed in this Agreement or any written modification, and, in the case of any related Third-Party Materials that Company provides hereunder (including open-source components), as allowed in the applicable third-party license agreement. Client and its Authorized Users will not, directly or indirectly:
  1. copy, modify or create derivative works or improvements of the Software or Company Materials;
  2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Software or Company Materials to any Person not a party to this Agreement (excluding Client’s Affiliates), including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
  3. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Software, or Company Materials, in whole or in part;
  4. bypass or breach any security device or protection used by the Software or Company Materials or access or use the Software or Company Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
  5. input, upload, transmit or otherwise provide to or through the Software any information or materials that are unlawful or injurious, or contain, transmit or activate any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise 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 data processed thereby;
  6. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Software, Company Systems, or Company’s ability to provide services to any third party;
  7. access or use the Software in any way that infringes, misappropriates or otherwise violates any intellectual property right, privacy right or other right of any third party, or that violates any applicable law or regulation;
  8. access or use the Software for purposes of benchmarking or competitive analysis, developing, producing, marketing, distributing, licensing or selling any product or service that may compete with the Software, or disclosing to Company’s competitors, for any purpose, otherwise non-public information about the Software; or
  9. otherwise access or use the Software or Company Materials beyond the scope of the authorization granted under this Agreement.
2.5.Third-Party Products. Client may have the option to access or use certain Third-Party Products that interoperate with the Software. Each Third-Party Product is governed by the terms of service, end user license agreement, privacy policies, and/or any other applicable terms and policies of the third party provider. Notwithstanding anything in this Agreement to the contrary, Third-Party Products are provided “AS-IS” and “AS AVAILABLE” without any warranties, guaranties, or representations, and Company specifically disclaims any obligation or liability with respect to Third-Party Products, including but not limited to any obligation to defend or indemnify under Section 10 of this Agreement. Company does not guarantee the continued availability of any Third-Party Product or any feature of the Software designed to interoperate with a Third-Party Product and may cease providing a Third-Party Product at any time without entitling Client to any refund, credit, or other compensation.
2.6.Modifications to Software. Company reserves the right, in its sole discretion, to make any changes to the Software that it deems necessary or useful to: (a) maintain or enhance the quality or delivery of the Software; or (b) comply with applicable Law.
2.7.Suspension or Termination of Software. Company may suspend, terminate, or otherwise deny Client’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Software without incurring any resulting obligation or liability, if: (a) Company is required to do so by Law or court order; or (b) Company believes, in its good faith and reasonable discretion, that: (i) Client or any Authorized User has failed to comply with any material term of the Agreement, or accessed or used the Software beyond the scope of the rights granted or for a purpose not authorized under the Agreement; (ii) Client 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 any of the Software; or (iii) the Agreement expires or is terminated. This Section 2.7 does not limit any of Company’s other rights or remedies, whether at law, in equity, or under the Agreement.
2.8.Free Trials and Beta Features. From time to time, Company may offer Client (or Client’s Authorized Users) access to certain Services or functionality on a free trial basis or as beta features (“Trial Services”). Trial Services are provided solely for evaluation purposes and may be subject to additional terms communicated by Company. Trial Services may be modified, suspended, or terminated by Company at any time in its sole discretion. Client acknowledges and agrees that Trial Services are provided “as is” and without warranty of any kind, and may not be subject to the same support or availability commitments as the generally available Software. For clarity, the service levels, support obligations, and remedies set forth in Section 8 (“Service Levels”) do not apply to Trial Services. Company shall have no liability arising out of or in connection with Client’s use of Trial Services. Client may provide feedback to Company regarding Trial Services, and Company may use such feedback without restriction or obligation to Client.
3.
Payment Terms.
3.1.Compensation and Fees. Client shall pay Company all fees set forth in the applicable SOF. Any additional expenses or services must be agreed to in advance in writing by both parties. Unless expressly set forth in this Agreement or applicable SOF, a fully executed SOF is non-cancellable and the fees are non-refundable. Fees are based on the licensing of the Software and not on Client’s actual usage.
3.2.Payment Terms. Unless otherwise provided in the applicable SOF, Company will invoice Client upon execution of the applicable SOF. All invoiced fees are due in full within thirty (30) days from the invoice date. In addition to Company’s other rights and remedies under this Agreement, Company reserves the right to subject any late payment (that is not subject to good faith dispute) to finance charges at the rate of 1.5% per month (or the highest rate permitted by law, if less), compounded daily from the date payment was due until paid in full. Where Company prevails in any proceedings brought by Company to collect any amount due under this Agreement, Company shall be entitled to receive its actual cost of collection, including attorneys’ fees and expenses.
3.3.Taxes. Client shall bear and pay all liabilities for any and all applicable sales and use taxes and similar taxes from any governmental authority claiming jurisdiction over this Agreement on account of or resulting from the execution of or performance under this Agreement.
4.
Term and Termination.
4.1.Term. This Agreement will be effective as of the Effective Date and shall remain in full force and effect until terminated (the “Term”) in accordance with the terms of the Agreement. Each SOF shall be effective for the term specified in the SOF.
4.2.Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
  1. Company may terminate this Agreement, effective on written notice to Client if: (i) Client fails to pay any undisputed amount when due hereunder, and such failure continues more than thirty (30) days after Company’s written notice thereof, or (ii) Client breaches its obligations under Section 2.4 use restrictions and Article 6.
  2. This Agreement may be terminated by: (a) written agreement of both parties, or (b) upon sixty (60) calendar days written notice by either party to the other party if there are no SOFs then in effect.
  3. If a SOF is in effect, either party may terminate the Agreement or any applicable SOF: (i) for cause, immediately upon material breach of this Agreement that is incapable of being cured, or, if curable, if such breach remains uncured thirty (30) days after receipt of written notice from the non-breaching party; (ii) either party ceases to carry on its business substantially as such business is conducted on the Effective Date; or (iii) either party institutes, or suffers from the institution of bankruptcy, reorganization, liquidation, receivership, or similar proceedings.
4.3.Effect of Termination or Expiration. If this Agreement is terminated or expires, then, except as expressly provided in this Agreement:
  1. all rights, licenses and authorizations granted by one party to the other will immediately terminate;
  2. Company shall cease use of Client Data and Client Confidential Information, except where: (a) deletion is not permitted under applicable Law or the order of a governmental or regulatory body; (b) Company retains such Client Data and Client Confidential Information for internal record keeping and compliance with any legal obligations; and (c) Company’s then-current data retention or similar back-up system stores Client Data and Client Confidential Information, provided such data will remain protected in accordance with the measures described in the Agreement, the DPA (to the extent applicable), and all applicable Laws. For clarity, Company’s obligations under this Section 4.3 do not apply to any Resultant Data.
  3. Client shall immediately cease all use of any Software and Company Materials and promptly return to Company, or at Company’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Company’s Confidential Information;
  4. If Company terminates this Agreement due to Client’s uncured material breach, or by Client for any reason other than Company’s uncured material breach, Client will immediately pay to Company all fees and/or other amounts that are due for the remainder of the applicable SOF’s term.
  5. If Client terminates the Agreement or applicable SOF due to Company’s material uncured breach, provided that Client is not in breach of its obligations under the Agreement, Client shall be entitled to a pro-rata refund of any prepaid fees under the applicable SOF for the time period remaining under the Term for which the Software was not provided.
4.4.Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 2.4 (Limitations and Restrictions), Section 4.3 (Effect of Termination or Expiration), this Section 4.4 (Surviving Terms), Article 6 (Confidentiality), Section 9.4 (Disclaimer of Warranties), Article 10 (Indemnification), Article 11 (Limitations of Liability), this Section 4.4 (Surviving Terms), and Article 12 (Miscellaneous).
5.
Intellectual Property Rights, Residual Rights.
5.1.Company Intellectual Property. All right, title, and interest in and to the Software and Company Materials, including all Intellectual Property Rights therein, are and will remain with the Company, and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. All other rights in and to the Software and Company Materials are expressly reserved by Company. In furtherance of the foregoing, Client 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.
5.2.Client Intellectual Property. As between Client and Company, Client is and will remain the sole and exclusive owner of all right, title, and interest in Client Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 5.3 (Consent to Use Client Data).
5.3.Consent to Use Client Data. Client grants Company all such rights and permissions in or relating to Client Data as are necessary for Company to provide the Software and for account management and other services compatible with providing the Software.
5.4.Residual Rights. Notwithstanding anything to the contrary herein, Company and its personnel shall be free to use and employ its and their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course of this Agreement, so long as it or they acquire and apply such information without any unauthorized use or disclosure of any Client’s Confidential Information.
6.
Confidentiality.
6.1.Definition. For purposes of the Agreement, “Confidential Information” shall mean all documents, data files, information, and other materials, in any medium, proprietary to and made available by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in connection with this Agreement that should reasonably be recognized as confidential information of the Disclosing Party or any information generated by the Receiving Party or by its representatives that contains, reflects, or is derived from any of the foregoing. Notwithstanding the foregoing, information will not constitute “Confidential Information” if such information (a) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party in violation of this Agreement, (b) was within the Receiving Party’s possession prior to being furnished to such party by the Disclosing Party, or (c) is lawfully obtained by the Receiving Party from a source that, to the Receiving Party’s knowledge, is not in breach of any obligation of confidentiality with respect to such Confidential Information.
6.2.Non-Use and Non-Disclosure. The Receiving Party will protect the Disclosing Party’s Confidential Information with 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 limit access to such Confidential Information to those of its employees and contractors (including legal counsel and accountants) who need that access, in each case, solely for the purposes outlined and contemplated in this Agreement, and who are bound by confidentiality obligations with the Receiving Party not materially less protective of the Confidential Information than those herein.
6.3.Compelled Disclosures. In the event Receiving Party becomes or may become legally required to disclose any Confidential Information, (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand or other process or otherwise), Receiving Party shall provide, to the extent permitted, prompt prior written notice of any such requirement to Disclosing Party so Disclosing Party may seek a protective order or other appropriate remedy, and if such protective order or other remedy is not obtained, Receiving Party shall furnish only the portion of such Disclosing Party’s Confidential information to the party compelling disclosure as required by applicable law.
6.4.Damages and Injunctive Relief. Each party acknowledges and agrees that money damages might not be a sufficient remedy for any breach or threatened breach of this Article 6 by such party. Therefore, in addition to all other remedies available at law (which neither party waives by the exercise of any rights hereunder), the non-breaching party shall be entitled to seek specific performance and injunctive and other equitable relief as a remedy for any such breach or threatened breach, and the parties hereby waive any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim.
6.5.Right, Title, and Interest. Except as otherwise explicitly provided in this Agreement, each party hereby retains its entire right, title and interest, including all Intellectual Property Rights, in and to all of its Confidential Information. Any disclosure of Confidential Information hereunder shall not be construed as an assignment, grant, option, license, or other transfer of any such right, title or interest whatsoever to the Receiving Party.
6.6.Notification of Breach. Each party shall immediately notify the other party promptly upon becoming aware of any breach of this Article 6.
7.
Data Security and Protection.
7.1.Safeguards. Company shall maintain commercially reasonable administrative, technical, and physical safeguards designed to protect the security and privacy of Client Data. Such safeguards shall comply with the data privacy laws that are applicable to Company in its performance of the Agreement.
7.2.Data Processing Addendum. To the extent Client Data includes personal data or personal information as such terms are defined under applicable data protection or privacy laws, Company’s data processing addendum will form a part of and is hereby incorporated into the Agreement by reference. Company will provide Client with its data processing addendum contemporaneously with the provision of the applicable SOF.
8.
Service Levels.
8.1.Service Levels. Subject to the terms and conditions of the Agreement, Company will use commercially reasonable efforts to make the Software Available at least 99.5% of the time as measured over the course of each calendar month during the term of the applicable SOF, excluding any of the exceptions described below in Section 8.3 (the “Availability Requirement”). “Available” means the Software is available for access and use by Client and its Authorized Users over the internet and operating in material accordance with the specifications set forth in the applicable SOF. “Service Level Failure” means a material failure of the Software to meet the Availability Requirement. All availability calculations will be based on Company’s system records.
8.2.Scheduled Downtime. Company will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Software during non-business hours; and (b) give Client reasonable notice of all scheduled outages of the Software via the portal used to access the Software (“Scheduled Downtime”).
8.3.Exceptions. For purposes of calculating the Availability Requirement, the following are exceptions to the Availability Requirement, and neither the Software will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Client or its Authorized Users to access or use the Software that is due, in whole or in part, to any: (a) Scheduled Downtime; (b) a Force Majeure Event; (c) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Company pursuant to this Agreement; (d) suspension or termination of Client’s right to access and use the Software by the Company under Section 2.7; (e) Client’s or its Authorized Users’ internet connectivity; and (f) any interruption or unavailability resulting from Client’s breach of Section 2.4.
8.4.Service Level Failures and Remedies. Notwithstanding anything to the contrary in this Agreement, Client’s sole and exclusive remedy for failure to meet the Availability Requirement shall be a credit as follows, and subject to the following terms and conditions:
  1. In the event that there are two (2) or more consecutive calendar months in which the Availability Requirement is not met, Client will be entitled to receive a credit equal to the prorated amount of fees applicable to the downtime as measured within two (2) or more consecutive calendar months during which the Availability Requirement was not met (“Service Credit”).
  2. The Service Credit will be applied against any invoice or charge for the following renewal Term, provided that Client requests such credit within twenty (20) calendar days of the end of the relevant calendar month in which Company did not meet the Availability Requirement.
  3. This Section 8.4 sets forth Company’s sole obligation and liability and Client’s sole remedy for any Service Level Failure.
8.5.Trial Services. For clarity, the service levels and remedies set forth in this Section 8 do not apply to any Trial Services (as defined in Section 2.8).
9.
Representations and Warranties.
9.1.Mutual Representations and Warranties. Each party represents and warrants to the other party that:
  1. 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;
  2. 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;
  3. the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
  4. when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
9.2.Additional Company Representations, Warranties, and Covenants. Company represents, warrants, and covenants to Client that Company will provide the Software using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar Software and will devote adequate resources to meet its obligations under this Agreement.
9.3.Additional Client Representations, Warranties, and Covenants. Client represents, warrants, and covenants to Company that Client owns or otherwise has and will have the necessary rights and consents in and relating to the Client Data so that, as received by Company and processed in accordance with this Agreement, it does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights of any third party or violate any applicable Law.
9.4.DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN 9.1 AND 9.2, ALL SOFTWARE AND COMPANY MATERIALS ARE PROVIDED “AS IS.” COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE OR COMPANY MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, 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 ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CLIENT AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
10.
Indemnification.
10.1.Company Indemnification. Company shall indemnify, defend, and hold harmless Client and Client’s officers, directors, employees, agents, permitted successors, and permitted assigns (each, a “Client Indemnitee”) from and against any and all Losses incurred by a Client Indemnitee resulting from any Action by a third party (other than an Affiliate of a Client Indemnitee) that Client’s (or an Authorized User’s) use of the Software (excluding Client Data and Third-Party Materials) in accordance with the Agreement infringes or misappropriates such third party’s Intellectual Property Rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from:
  1. Third-Party Materials or Client Data;
  2. 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;
  3. failure to timely implement any modifications, upgrades, replacements, or enhancements to the Software made available to Client by or on behalf of Company; or
  4. any act, omission, or other matter described in 10.2(a), 10.2(b), 10.2(c), or 10.2(d), whether or not the same results in any Action against or Losses by any Company Indemnitee.
10.2.Client Indemnification. Client shall indemnify, defend, and hold harmless Company and each of its officers, directors, employees, agents, permitted successors, and permitted assigns (each, a “Company Indemnitee”) from and against any and all Losses incurred by such Company Indemnitee resulting from any Action by a third party (other than an Affiliate of a Company Indemnitee) to the extent that such Losses arise out of or result from, or are alleged to arise out of or result from:
  1. Client Data, including any processing of Client Data by or on behalf of Company in accordance with this Agreement;
  2. any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Client or any Authorized User, including Company’s compliance with any specifications or directions provided by or on behalf of Client or any Authorized User to the extent prepared without any contribution by Company;
  3. allegation of facts that, if true, would constitute Client’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
  4. negligence or more culpable act or omission (including recklessness or willful misconduct) by Client, any Authorized User, or any third party on behalf of Client or any Authorized User, in connection with this Agreement.
10.3.Indemnification Procedure. Each party shall promptly notify the other party in writing in accordance with Section 12.3 of any Action for which such party believes it is entitled to be indemnified pursuant to 10.1 or 10.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee (including, but not limited to, requiring any admission of wrongdoing on the part of the Indemnitee or imposing any obligation on the Indemnitee) without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 10.3 will not relieve the Indemnitor of its obligations under this Article 10, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
10.4.Mitigation. If any of the Software or Company Materials are, or in Company’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Client’s or any Authorized User’s use of the Software or Company Materials is enjoined or threatened to be enjoined, Company may, at its option and sole cost and expense:
  1. obtain the right for Client to continue to use the Software and Company Materials as contemplated by this Agreement;
  2. modify or replace the Software and Company Materials, in whole or in part, to seek to make the Software and Company Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Software and Company Materials, as applicable, under this Agreement; or
  3. by written notice to Client, terminate this Agreement with respect to all or part of the Software and Company Materials, and require Client to immediately cease any use of the Software and Company Materials or any specified part or feature thereof, provided that if such termination occurs prior to the end of the Term, subject to Client’s compliance with its post-termination obligations set forth in Section 4.3, Client will be entitled to a pro-rata refund of any prepaid fees under the applicable SOF for the time period remaining under the Term for which the Software was not provided.
10.5.Sole Remedy. This Article 10 sets forth Client’s sole remedies and Company’s sole liabilities and obligations for any actual, threatened, or alleged claims that the Software or Company Materials or any subject matter of this Agreement infringes, misappropriates, or otherwise violates any Intellectual Property Rights of any third party.
11.
Limitations of Liability.
11.1.EXCLUSION OF DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 11.3, IN NO EVENT WILL COMPANY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS PURSUANT TO SECTION 8.4; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11.2.CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 11.3, IN NO EVENT WILL THE AGGREGATE LIABILITY OF COMPANY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID BY CLIENT UNDER THE APPLICABLE SOF. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11.3.Exceptions. The exclusions and limitations in Sections 11.1 and 11.2 do not apply to Company’s obligations under Article 10 (Indemnification) or liability for Company’s gross negligence or willful misconduct.
12.
Miscellaneous.
12.1.Relationship of the Parties. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. Client acknowledges Company’s right to provide the Software and Company Materials to other entities, including without limitation, Client’s competitors. Such provision of the Software and Company Materials shall comply with the Confidentiality provisions under Article 6 of this Agreement.
12.2.Publicity, Use of Marks. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement or as needed to provide or use the Software, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that Company may include Client’s name and other indicia in its lists of Company’s current or former clients of Company in promotional and marketing materials.
12.3.Notices. Any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to a party in accordance with Exhibit 2 to the applicable SOF.
12.4.Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
12.5.Headings and Subheadings. The headings and subheadings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
12.6.Entire Agreement. This Agreement, together with any exhibits hereto, any DPA, and any SOF hereunder constitute the entire agreement between the Parties concerning the subject matter of this Agreement. This Agreement supersedes all prior written or oral understandings, agreements or representations by or between the Parties prior to the execution hereof, including, without limitation, prior drafts or prior versions of this Agreement. The terms of this Agreement may only be modified by specific fulfillment information contained in an executed SOF form. No other supplement, amendment, or modification of this Agreement shall be binding unless in written format and signed by both parties.
12.7.Assignment and Successors. Client shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Company’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Client (regardless of whether Client is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Company’s prior written consent is required. No assignment, delegation, or transfer will relieve Client of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 12.7 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
12.8.Force Majeure.
  1. No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), including (i) acts of God; (ii) flood, fire, earthquake, 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) plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions; and (vii) national or regional emergencies. For the avoidance of doubt, Force Majeure shall not include (x) financial distress nor the inability of either party to make a profit or avoid a financial loss, (x) changes in market prices or conditions, or (z) a party’s financial inability to perform its obligations hereunder. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.
  2. Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
12.9.No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
12.10.Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. Notwithstanding the foregoing, Company may revise this Agreement from time to time by posting the modified version on this site, where the Agreement is hosted. By continuing to access or use the Software after the posted effective date of modifications to this Agreement, Client agrees to be bound by the revised version of the Agreement.
12.11.Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
12.12.Governing Law; Submission to Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed by and construed in accordance with the laws of the state of California in the United States of America, without regard to the conflict of laws principles. The Parties irrevocably submit to the exclusive jurisdiction of the state or federal courts located in San Francisco County, California in respect of any dispute arising pursuant to or in connection with this Agreement and each party waives any objection that such party may now or hereafter have to the laying of the venue of any such action, suit or proceeding. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
12.13.Export. Neither party will knowingly export or re-export or cause to be exported or re-exported, directly or indirectly, any Software that is provided under this Agreement, to any country for which the U.S. government, or any U.S. government agency, requires an export license or other government approval at the time of such export without first obtaining any required license or approval.