General Terms & Conditions

The Customer identified in an Order Form or SOW (the “Customer”) and Omtrackr (the “Supplier”), each of whom may be referred to herein as a “Party” and collectively as the “Parties,” hereby agree to the following General Terms and Conditions (the “GTCs”):

1. Definitions: 

In this Agreement, the following terms have the meanings given below:

a. Agreement: Refers to these GTCs, including any attachments, as they are incorporated into any fully executed Order Form or SOW. The GTCs may be modified as outlined in Section 15(g), along with additional terms from any Order Form, SOW, or addenda that incorporate the GTCs by reference.

b. Authorized User: Individuals or entities authorized by Customer to access and use the Cloud Services, including third parties authorized per Section 2(a)(ii), subject to Customer’s limitations and obligations under the Agreement. An individual cannot be an Authorized User if they are otherwise ineligible per the Agreement terms.

c. Cloud Services: On-demand, subscription-based solutions or technology-enabled services hosted, supported, and operated by Supplier, provided to Customer per an Order Form. This includes related Documentation, Embedded Third-Party Content, and Supplier Materials necessary for Customer’s use of the Cloud Services, excluding Third-Party Content.

d. Corporate Affiliate: Any entity that directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or control with a Party, and is under common management with that Party.

e. Customer Data: Information, data, and content provided by Customer or Authorized Users to Supplier through Cloud Services, including information created specifically for Customer through the processing of such data via the Cloud Services, excluding Supplier Materials.

f. Documentation: Technical and functional documentation distributed by Supplier regarding its Products, which may include manuals, instructions, guides, release notes, and help files related to Product use.

g. IP Rights: Registered and unregistered rights under patent, copyright, trademark, trade secret, and other intellectual property laws, in any part of the world.

h. “Marks” refer to the logos, tradenames, trademarks, service marks, work marks, and trade dress of a Party, whether registered or not.

i. “Offer” signifies an agreement where Customer commits to paying Partner for specific advertising performance results to promote certain applications, products, services, networks, or advertisements.

j. “Order Form” denotes a document (like an order, quotation, or online form) agreed upon by the Parties, incorporating these GTCs, and detailing the Products to be provided under the Agreement. It can also include a “Pricing Statement” previously agreed upon and still active.

k. “Partner” represents a third party (like ad networks, publishers, advertisers, affiliates, analytics providers, or data providers) that Customer engages to promote an Offer on its behalf.

l. “Personnel” encompasses employees, directors, officers, or subcontractors of a Party or its Corporate Affiliate.

m. “Pro Rata Refund” indicates a refund of pre-paid amounts by Customer to Supplier for any Product or related costs that won’t be provided or used by Supplier by the refund date. This refund is calculated based on the remaining months for subscription-based Fees, the undelivered portion for fixed Fees, and the unincurred costs for costs or expenses.

n. “Professional Services” include implementation, integration, configuration, training, and other professional services provided by Supplier, as specified in an Order Form or SOW.

o. “Products” collectively refer to Cloud Services, Professional Services, and Support Services.

p. “Services” collectively refer to Professional Services and Support Services.

q. “Supplier Materials” encompasses all information, data, documents, materials, content, processes, descriptions, plans, reports, devices, software, websites, technologies, and innovations developed, provided, or utilized by Supplier or Supplier Personnel in relation to the Products or integrated into them. This includes Usage Data and Deliverables but excludes Customer Data and Third-Party Content.

r. “Support Services” refer to Supplier’s regular and premium customer support and maintenance services provided to Customer for its Products under the Agreement.

s. “Statement of Work” (SOW) is a written document agreed upon by the Parties, which incorporates these GTCs and outlines the Professional Services to be carried out by Supplier under the Agreement.

t. “Territory” denotes the geographical area where Customer is authorized to use the Products, as specified in an Order Form. If not specified, Territory includes all countries not excluded by Section 15(a) of these GTCs, subject to Supplier’s right to restrict usage in designated ineligible countries.

u. “Usage Data” comprises data generated by Supplier or its Products from Customer usage, such as end user profiles, visits, sessions, impressions, click-throughs, clickstreams, and related statistical or analytical information. This data is de-identified to protect individual identities.

v. “Usage Metric” defines the measurement standard and quantity used to determine permitted use and calculate Fees for Cloud Services.

2. Usage Rights and Licensing

a. Rights Granted and Permitted Usage

i. Regarding Cloud Services, subject to Customer and its Authorized Users adhering to the Agreement’s terms, including any applicable Fees outlined in the Order Form, Supplier grants Customer a limited, non-exclusive, non-transferable right to access and use the Cloud Services specified in the Order Form throughout the Term. This access is solely for use by Authorized Users within the Territory, adhering to the Usage Metrics outlined in the Order Form. It’s intended for internal business operations and managing Customer’s relationships with Partners on a limited commercial basis. Specific terms for certain Products are detailed in Appendix A of these GTCs (Product Specific Terms or PSTs), which apply if the Order Form is for purchasing a listed Product from the PSTs. Supplier reserves all rights not expressly granted to Customer. Customer acknowledges that internal controls within the Cloud Services may not inherently restrict usage to comply with specified Usage Metrics. Customer is accountable for its Authorized Users’ compliance with the Agreement and liable for their actions.

ii. Third-Party Authorized Users

  • Corporate Affiliate Utilization. Customer can authorize its Corporate Affiliates and their employees to use the Cloud Services, unless prohibited by the Order Form. Such usage by Corporate Affiliates is subject to certain conditions:

Customer must have authority to bind Corporate Affiliates to the Agreement terms.

Customer requires appropriate licensing for increased usage due to Corporate Affiliates.

Customer and Corporate Affiliates are jointly liable for their usage of the Cloud Services.

A breach by Corporate Affiliates is considered a breach by Customer.

These Corporate Affiliate usage rights are valid only with a valid Order Form and within its effective period. For expanded Corporate Affiliate usage beyond countries where Customer operated at the Order Form’s execution, prior written approval from Supplier is necessary.

  • Third-Party Service Provider Use. Customer can authorize its third-party service providers and contractors (“Service Providers”) to utilize the Cloud Services. However, this authorization is limited to what’s necessary for Customer to properly use the Cloud Services as per the Agreement. The following conditions apply to the authorized use by Service Providers:

These rights remain valid only if Customer and Service Providers have a written agreement that ensures Service Providers comply with terms similar to those in the Agreement regarding Cloud Services usage, including license grants, restrictions, and confidentiality of Supplier’s information.

Customer must have the appropriate licenses for any additional Cloud Services usage due to Service Providers.

Customer remains responsible to Supplier for any actions Service Providers take with the Cloud Services.

A breach of the Agreement terms by a Service Provider counts as a breach by Customer.

Service Providers cannot use the Cloud Services for any other party or their own business operations.

  • Partner Use. Customer can authorize Partners to use the Cloud Services, limited to what’s necessary for Customer to manage its relationships with those Partners. The following conditions apply to the authorized use by Partners:

These rights are valid if Customer and Partners have a written agreement ensuring Partners comply with terms similar to those in the Agreement regarding Cloud Services usage, including license grants, restrictions, and confidentiality of Supplier’s information.

Customer must have the appropriate licenses for any increased Cloud Services usage due to Partners.

Customer remains responsible to Supplier for any actions Partners take with the Cloud Services.

A breach of the Agreement terms by a Partner counts as a breach by Customer.

Customer must comply with any requests from Supplier to remove any content Partners post or transmit through the Cloud Services.

b. Usage Restrictions. Customers are not allowed, and should not allow anyone else, to access or use the Cloud Services unless explicitly permitted by the Agreement. To be clear, and without limiting the general scope, Customers must not: (a) try to decompile, reverse engineer, or derive the source code of the Cloud Services, unless non-waivable rights under the law allow; (b) modify, enhance, alter data structures of, or create derivative works from the Cloud Services; (c) rent, sell, sublicense, or transfer the Cloud Services to third parties; (d) provide access to the Cloud Services to anyone other than Authorized Users; (e) upload or transmit unlawful or harmful information or materials, or any Harmful Code; (f) use the Cloud Services in a way that infringes on IP Rights or other third-party rights, or violates the law; (g) use the Cloud Services for competitive analysis; (h) distribute Customer Data containing objectionable material; (i) use data mining robots or similar methods with the Cloud Services; and (j) engage in spam, excessive data transfers, or activities leading to spam warnings.

c. Service Changes. Supplier reserves the right, at its discretion, to make any changes to the Cloud Services deemed necessary for maintaining or enhancing service quality, competitiveness, cost-efficiency, performance, or compliance with the law.

d. Evaluation Licenses. Throughout the agreed Term, Supplier has the option to grant Customer access to Cloud Services under a free trial or evaluation period (referred to as an “Evaluation License”), as indicated either in (i) an Order Form, or (ii) another communication to Customer that incorporates these GTCs by reference. By using the Evaluation License, Customer implicitly accepts these GTCs. Evaluation Licenses abide by the terms and conditions outlined in the Agreement. However, unlike other provisions in the Agreement, ALL EVALUATION LICENSES ARE PROVIDED AS IS BY SUPPLIER, WITHOUT INDEMNIFICATION, SUPPORT, OR WARRANTY OF ANY KIND. THEREFORE, SUPPLIER INCURS NO LIABILITY TO CUSTOMER, AND THERE ARE NO LIMITATIONS ON CUSTOMER’S LIABILITY TO SUPPLIER. Upon the expiration of the Evaluation License Term, the Evaluation License transitions into an initial one-month Term for the Cloud Services. This Term carries the same Usage Metrics as during the Evaluation License period, and Customer is billed at Supplier’s current list Fees for the Cloud Services, which are invoiced immediately. This conversion occurs unless, prior to the end of the Evaluation Term, Customer (i) arranges a different agreement with Supplier, as documented in an Order Form, or (ii) informs Supplier of their decision to opt-out of the Evaluation License conversion.

3. Service Offerings

a. Customer Support Services.

  • Supplier, through its dedicated team, will deliver Customer Support Services for the Cloud Services. This includes access to Supplier’s support team via phone, email, or chat. Unless agreed otherwise, support will be provided in English. Any additional terms and conditions for these services will be outlined in the Documentation or an Order Form. Customer acknowledges that these Support Services are designed to address specific issues with the Cloud Services and are not intended for employee training or supporting third-party products.
  • Supplier is not obligated to provide Support Services if the request arises due to: (i) Customer’s failure to use the Cloud Services as per the Agreement terms, including any applicable Documentation; (ii) Customer’s unauthorized modifications to the Cloud Services, unless expressly permitted by Supplier; (iii) Customer’s use of third-party components to interact with the Cloud Services without Supplier’s prior written consent; and (iv) Customer’s failure to provide necessary system access as determined by Supplier for delivering Support Services. Any time and materials expended due to breaches of these conditions will be billed at Supplier’s standard rates. The Support Services pertain exclusively to the Cloud Services.

b. Professional Services

  • Service Scope: Supplier, through its team, will provide Professional Services to Customer as specified in an Order Form or Statement of Work (SOW), in line with the terms of the Agreement.
  • Project Change Requests: Either party can request changes to key parts of the SOW by submitting a Project Change Request (PCR). Upon receiving a PCR, Supplier will assess its financial and schedule impacts. The parties will then review these assessments to decide if the PCR is acceptable. Supplier won’t unreasonably reject a PCR from Customer if Customer agrees to cover the costs and schedule changes. If the parties agree on the PCR, they will execute it. If they can’t agree within five business days, the submitting party can withdraw the PCR or terminate the SOW per Section 11(d). Any additional services resulting from Customer’s actions or delays will be billable to Customer at Supplier’s current rates.
  • Deliverables and Acceptance: Some SOWs may outline specific “Deliverables,” including documents, work products, and materials prepared by or for Supplier for Customer. Supplier grants Customer a license to use Deliverables for its internal business needs. However, this license excludes new software development or modifications, which require separate agreements. Customer must notify Supplier of any Deliverable non-conformities within ten business days of delivery. Supplier will rectify non-conformities at no extra cost. If Customer doesn’t respond within this period, Deliverables are deemed accepted.
  • Personnel: Supplier will assign personnel for the services and is accountable for their performance and compliance with the Agreement. Customer’s rescheduling requests may incur additional costs.
  • Custom Development and Enhancements: New software development or modifications are considered Professional Services, outlined in SOWs. Supplier retains control over Cloud Services design and development. Requests for Cloud Services modifications will be handled separately at Supplier’s prevailing rates.

4. Payment

a. Fees: Customers are responsible for all fees associated with Products as outlined in an Order Form or SOW (the “Fees”), following the terms of the Agreement and any additional conditions specified in an Order Form or SOW regarding currency. Unless otherwise allowed by the Agreement, payment obligations cannot be canceled, and Fees paid are non-refundable. Fees are fixed for the Initial Term unless Customer exceeds licensed quantities, upgrades, requests additional Products, or agrees to Fee changes in an Order Form. Quantities purchased cannot be reduced during any Initial or Renewal Term. Supplier may adjust Fees before a Renewal Term, but not more than once a year.

b. Expenses: Customer will reimburse Supplier for all travel and related expenses incurred in providing Products, with pre-approval required from Customer, usually secured through an Order Form or SOW outlining a travel or expense budget.

c. Invoicing and Payment: Fees are invoiced as per the Order Form or SOW. Invoices are due upon receipt unless specified otherwise, with overdue accounts incurring interest or as permitted by law. If Credit Card payment is accepted by Supplier, Customer authorizes third-party payment processing and disclosure of payment information.

d. Taxes: Each Party is responsible for identifying and paying taxes and fees imposed on them per applicable law. Customer pays Fees exclusive of taxes that Supplier is required to collect and pay, such as VAT, GST, etc., unless exempted with proper documentation provided timely. Payments should be made without any deductions unless required by law, in which case Customer will cover additional amounts to ensure Supplier receives the full payment.

e. Disputes: Any invoice disputes must be raised by the Customer within thirty days of the invoice date. Undisputed amounts are still payable. Both Supplier and Customer will make reasonable efforts to resolve disputes within thirty days of Supplier receiving notice.

5. Partnerships with Third Parties

a. At times, third parties or Supplier acting on behalf of third parties may offer Customer various resources such as software, application programming interfaces (APIs), documents, data, content, specifications, products, equipment, components, websites, or professional services. These resources, collectively termed as “Third-Party Content,” are compatible with or accessible through our Cloud Services but are not integrated into or inseparable from them. Supplier does not bear responsibility for licensing, implementing, or operating Third-Party Content unless stated otherwise in an Order Form or SOW.

b. Embedded within the Cloud Services is Embedded Third-Party Content, which refers to third-party software, libraries, or code that are an integral part of our services and have been licensed by Supplier. Additional terms and conditions may apply to Embedded Third-Party Content, as outlined in the relevant Product-Specific Terms (PSTs). Any open source software included in Embedded Third-Party Content is subject to the respective open source licenses specified in the PSTs.

c. When utilizing our Cloud Services in collaboration with your Partners, you agree to establish and uphold a Customer-Partner Agreement governing that relationship. This agreement should cover key aspects such as documenting Offers, dispute resolution procedures, compliance with applicable laws (including Export Laws as defined in Section 15(a) below), and explicitly state that Supplier assumes no liability for damages arising from the Customer-Partner Agreement. Should Supplier provide sample terms and conditions for use with Partners, these are solely for reference, and it remains the responsibility of Customer and Partner to ensure the adequacy of their Customer-Partner Agreement terms.

6. Intellectual Property

a. Product and Supplier Materials Ownership: Except for rights expressly granted by the Agreement, Supplier retains full ownership rights, including intellectual property (IP) rights, in the Products and Supplier Materials. This includes any enhancements or modifications. Customer acknowledges that it’s licensing the right to use these items and that no sale or transfer of ownership is implied, except for the limited licenses explicitly stated in the Agreement. Customer agrees not to assert any rights against Supplier or its affiliates regarding these Products and Supplier Materials.

b. Customer Data Ownership: Customer retains all rights, including IP rights, in Customer Data, except where expressly granted by the Agreement.

c. Consent for Use of Customer Data: Customer grants Supplier a non-exclusive, global, royalty-free, perpetual, and irrevocable license to access and use Customer Data for enforcing the Agreement, exercising rights, and fulfilling obligations. This includes creating Usage Data, which becomes Supplier Materials. If Usage Data is deemed Customer Data, Customer grants Supplier a non-exclusive, irrevocable, transferable, perpetual license to use it as necessary. Additional rights may be granted through an Order Form.

d. Customer Feedback: Supplier owns all rights to any feedback, suggestions, or information provided by Customer regarding Product improvements. Customers are not obligated to provide such feedback.

e. Use of Marks: Each party retains ownership of its Marks. Customer needs Supplier’s written consent to use Supplier’s Marks. Unless specified otherwise, Customer allows Supplier to use its Marks in promotional materials. Supplier acknowledges no proprietary interest in Customer’s Marks but owns the rights to its promotional materials. Customer can terminate permission for using its Marks with a 30-day notice, after which Supplier must discontinue future use but can continue using existing materials with Customer’s Marks.

7. Confidentiality and Data Privacy

a. Customer Responsibilities: expects customers to adhere to all relevant anti-spam and data privacy laws and regulations. Customers are responsible for obtaining all necessary rights and permissions to use their data in conjunction with Omtrackr’s Products. This includes licensing data to Omtrackr as outlined in the Agreement. Additionally, customers are responsible for maintaining data integrity, implementing access controls for authorized users, and taking measures to secure their data against unauthorized access and loss within the capabilities of Omtrackr’s Products. Some of these responsibilities may be shared with Omtrackr as specified in the Agreement.

b. Supplier Responsibilities:

  • Compliance with Privacy Laws: Omtrackr will comply with anti-spam and privacy laws while performing services under the Agreement. Omtrackr will also provide reasonable assistance to customers upon request to help meet their legal obligations, although additional fees may apply for professional services unrelated to Agreement breaches.
  • Data Security: If Omtrackr processes Personal Data, the terms of the Data Processing Agreement (DPA) available at [link] apply and are incorporated into the Agreement. If Omtrackr doesn’t process Personal Data, it will still take reasonable measures to protect customer data from unauthorized use or disclosure. In case of any data breaches within Omtrackr’s control, Omtrackr will promptly inform customers, investigate and remedy the breach, and provide customers with necessary information for their own investigations.

c. Mutual Confidentiality Responsibilities:

  • Under the Agreement, both parties may gain access to each other’s Confidential Information. This refers to any information disclosed under the Agreement that falls under these criteria: (a) marked as “Confidential” or similarly labeled if tangible; (b) identified as “Confidential” by the disclosing party at the time of disclosure and confirmed in writing to the recipient as Confidential Information if intangible; or (c) reasonably understood by the recipient to be confidential based on the circumstances (such as pricing, non-public Personal Data, etc.). Not included in Confidential Information are portions that the recipient can prove: (a) were known to them before receiving them from the discloser; (b) were publicly known as of the Effective Date of the Agreement; (c) became publicly known after the Effective Date of the Agreement without the recipient’s involvement; (d) were received from a third party without breaching any obligations to the discloser; or (e) were independently developed by the recipient without breaching the Agreement.
  • The parties agree to treat each other’s Confidential Information with the same level of care as they would their own similar Confidential Information, but in no case less than a reasonable level of care.
  • Except as expressly stated in the Agreement, Confidential Information may only be disclosed to employees, subcontractors, consultants, agents, and other representatives of the receiving party and its Corporate Affiliates who need access to fulfill their obligations or rights under the Agreement. Those individuals must be contractually bound to protect the Confidential Information in a manner no less restrictive than the Agreement’s requirements. Each party is responsible for its employees, subcontractors, consultants, agents, and representatives, and any breaches by them would be considered breaches by that party under Section 7. Supplier may disclose Customer’s Confidential Information to a Partner or Third-Party Content provider as needed to facilitate Customer’s relationship with them.
  • Disclosure of Confidential Information pursuant to a subpoena or other compulsory legal process does not breach this Section 7, provided that the Party served with such process promptly notifies the other Party and assists in obtaining a protective order if legally permissible.
  • Both parties acknowledge that monetary damages would not suffice in case of a breach of these obligations and that such a breach would cause irreparable harm. In such instances, the non-breaching Party may seek injunctive relief from a competent court to pursue appropriate remedies.

d. Sensitive Personal Information. “Sensitive Personal Information” refers to an individual’s financial details, sexual preferences, medical or health records protected by health data laws, biometric data used for unique identification, personal information of children safeguarded by child data protection laws (e.g., US Children’s Online Privacy Protection Act or COPPA), and any other information categorized similarly under applicable data protection or privacy laws. Customer must not collect, process, or store any Sensitive Personal Information using our Cloud Services unless explicitly permitted through an Order Form, Statement of Work (SOW), or with prior written consent from Supplier. However, the signing of any agreement or addendum covering the use of such Sensitive Personal Information (e.g., a Business Associate Addendum or Data Processing Agreement explicitly addressing Sensitive Personal Information) implies consent.

e. Return and Destruction of Confidential Information. Upon termination or expiration of the Agreement, except for continued use necessary for surviving rights explicitly granted in the Agreement: (i) all rights to the disclosing Party’s Confidential Information automatically cease, and the receiving Party must immediately stop all access and use of the disclosing Party’s Confidential Information; and (ii) the receiving Party must securely destroy the disclosing Party’s Confidential Information in line with its sensitivity. Upon request, an officer of the receiving Party will provide written certification of such destruction. However, the receiving Party may retain a copy of Confidential Information for legal requirements or as per its records retention policies, provided it maintains the restrictions outlined in this Section 7. Supplier isn’t obliged to retain data beyond thirty (30) days post Agreement or Order Form expiration/termination.

8. Indemnity

a. Supplier’s Responsibility: At its own cost, Supplier will defend Customer against any claims, suits, or legal actions brought by a third party alleging that Customer’s use of a Product under the Agreement violates the intellectual property (IP) rights of that third party. Supplier will also cover any damages, attorney fees, and costs awarded against Customer due to such claims, provided that Customer notifies Supplier promptly in writing, gives Supplier control to defend or settle the claim, and provides necessary information and assistance. If Supplier believes a Product infringes third-party IP rights, Supplier may modify the Product to be non-infringing, secure rights for Customer to use the Product, or terminate the Agreement, with Customer receiving a refund for terminated Products. However, Supplier isn’t obligated to defend or indemnify for claims arising from certain circumstances outlined in the Agreement.

b. Customer’s Responsibility: Customer will defend Supplier against any claims brought by a third party related to Customer Data, Customer’s unlawful use of Products, or matters concerning Customer’s relationship with Partner. Customer will cover damages, fees, and costs resulting from such claims, provided that Supplier is promptly notified, given control to defend or settle, and provided necessary support.

c. This indemnity clause outlines the parties’ responsibilities regarding third-party claims of IP infringement or misappropriation, providing a clear framework for resolving such disputes.

9. Warranty & Warranty Disclaimer

a. Mutual Assurances and Assurances Disclaimer. Each Party assures the other Party that: (i) it is legally organized, validly existing, and in good standing as a corporation or entity under the laws of its incorporation or organization jurisdiction; (ii) it possesses full rights, power, and authority to enter into and fulfill obligations and grant rights, licenses, consents, and authorizations as required under the Agreement; (iii) the Agreement’s execution by its representative, whose signature concludes the Agreement, has been duly authorized by all necessary corporate or organizational actions; and (iv) upon execution and delivery by both parties, the Agreement will represent a legal, valid, and binding obligation enforceable in accordance with its terms.

b. Additional Supplier Assurances, Warranties, and Commitments.

  • Cloud Services. Supplier assures that the Cloud Services will substantially conform with the current Documentation. In case of any breach of this assurance, if Customer notifies Supplier within thirty (30) days of discovering such non-conformance, Supplier will make commercially reasonable efforts to rectify it, provided it is not caused by: (A) negligence, gross negligence, or intentional misconduct of Customer or its Authorized Users; (B) Customer’s failure to use the Cloud Services as per the Agreement terms; (C) Third-Party Content or other products/services not provided by Supplier, its Corporate Affiliates, or Personnel; or (D) Harmful Code, excluding cases where Supplier’s negligence, gross negligence, or intentional misconduct introduced such code. If Supplier fails to correct a non-conformity within ninety (90) days from receiving notice (the “Remedy Period”), Customer may terminate the license for the non-conforming Cloud Service and receive a Pro Rata Refund. Failure to exercise this right within fifteen (15) days after the Remedy Period’s end waives this right.
  • Services. Supplier assures that Services will be performed professionally and in line with industry standards. If Customer notifies Supplier of any documented non-conformance within thirty (30) days of discovery, Supplier will make reasonable efforts to rectify it, provided it’s not due to: (A) Customer’s failure to meet Agreement obligations, including SOW assumptions; or (B) Third-Party Content or other products/services not provided by Supplier, its Corporate Affiliates, or Personnel.
  • Service Level Agreements. Any Service Level Agreements (SLAs) clearly identified in an SOW, Order Form, or Product-Specific Terms (PSTs) are binding. Failure to meet an SLA does not breach the Section 9(b)(i) warranty, unless explicitly stated. Remedies for SLA failures are as outlined in the SLAs.

c. Customer Responsibilities and Assurances. affirms to Supplier that they have complied with all relevant laws and regulations, particularly those governing the collection and utilization of Customer Data within the context of this Agreement. Additionally, asserts that they own or have the necessary rights and consents concerning Customer Data, ensuring that when received and processed by Supplier according to the Agreement and any Data Processing Addendum (DPA), such data does not infringe upon, misappropriate, or otherwise violate any Intellectual Property (IP) Rights, privacy rights, or any other rights of third parties, nor does it contravene any applicable laws or regulations. In cases where Customer Data originates from a third party, like a data broker, further assures Supplier that they have a written agreement with such third parties, mandating compliance with all relevant laws and regulations governing data collection and usage.

d. Disclaimers. With the exception of the warranties stated in this section and as permitted by applicable law, acknowledges that the Products and Third-Party Content are provided “as is” and “with all faults,” with Supplier disclaiming all other warranties, representations, guarantees, or conditions, whether express or implied. These include implied warranties or conditions of merchantable quality, merchantability, satisfactory quality, fitness for a particular purpose, or the use of reasonable skill and care. Specifically:

  • Supplier does not guarantee that the Products will meet all Customer requirements or operate without interruption or errors.
  • Supplier makes no warranties regarding interactions between Customer and Partners facilitated by the Cloud Services or Third-Party Content.
  • Supplier disclaims liability for third-party privacy or data security practices.
  • Supplier’s limited warranties do not cover any Cloud Service that has been modified by parties other than Supplier, its affiliates, or personnel. Certain states or jurisdictions may not allow the exclusion of certain warranties, so these disclaimers may not fully apply. Nothing in the Agreement limits any rights or remedies guaranteed by applicable law, and it is Customer’s responsibility to determine the suitability of the Products for their needs. No other terms, conditions, representations, warranties, or guarantees, whether written or oral, express or implied, will be considered part of the Agreement or have any legal effect.

10. Limitation of Responsibility

Our responsibility under the Agreement or in connection with the Products is limited to direct damages equivalent to the fees you paid us during the six-month period preceding the first incident leading to a claim. We won’t be liable for any special, indirect, incidental, or consequential damages related to the Agreement or the Products, including but not limited to lost revenue, profits, goodwill, or data (whether due to a virus or otherwise), business interruptions, failure to achieve expected savings, data corruption, or claims from third parties, even if we were informed of the possibility of such damages in advance. These limitations apply regardless of how the claim arises, whether through breach of contract, negligence, or any other means, and they apply to all Order Forms, Statements of Work (SOWs), and related documents. We’re not responsible for any claims resulting from interactions between you and partners, whether facilitated by our Cloud Services or otherwise. These limits of responsibility allocate risks between us and form a significant basis of our agreement. Our pricing reflects this risk allocation and the limitation of responsibility outlined here.

11. Term and Termination

a. Term: The initial term of an Order Form or SOW starts on the Effective Date specified and continues for the period outlined in the Order Form or SOW (the “Initial Term”), unless terminated earlier by either party as per the Agreement terms. Unless stated otherwise in an Order Form, it will automatically renew at the current Usage Metrics for additional periods, up to the length of the Initial Term or one year (whichever is less), unless one party gives the other thirty days’ written notice before the Initial Term or any Renewal Term ends. All terms remain in effect during Renewal Terms unless otherwise agreed in writing. The term of these General Terms and Conditions (GTCs) aligns with the Order Form or SOW incorporating them.

b. Suspension Policy

  • Non-Payment of Fees: If Customer has not paid undisputed Fees within fifteen (15) days of written notice, Supplier reserves the right to suspend Customer’s access to Cloud Services or other Services until payment is made. A past-due invoice serves as sufficient notice under this provision.
  • Misuse: If Customer is not using a Product according to the Agreement terms, Supplier may suspend access to that Product upon fifteen (15) days’ prior written notice, until the issue is resolved. In cases where nonconformity poses a significant risk, Supplier may suspend access immediately without notice.
  • Additional Terms: During any suspension, Supplier retains the right to pursue other remedies as per the Agreement, and no Fees will be refunded for the suspension period. Customer loses access to Products and Supplier Materials, except with Supplier’s written consent to remedy the default.

b. Termination by Supplier: Supplier may terminate the Agreement if Customer defaults on a material term and fails to rectify it within thirty (30) days of written notice. Immediate termination is possible if Customer’s actions violate laws or cause significant harm to Supplier or its products.

c. Termination by Customer: Customer may terminate the Agreement if Supplier defaults on a material term and doesn’t rectify it within thirty (30) days of written notice, or if Supplier becomes insolvent or faces bankruptcy proceedings.

d. Effect of Termination or Expiration: Upon termination or expiration, any owed amounts become immediately due, and Customer’s access rights are revoked. Certain obligations and provisions, such as confidentiality and dispute resolution, continue after termination or expiration.

12. Assignment

Both Parties agree not to transfer their rights or responsibilities mentioned in this agreement without prior written consent from the other Party. However, Supplier may transfer the Agreement to any of its Corporate Affiliates without Customer’s consent, as long as the Agreement remains valid and beneficial for any successor or assignee of Supplier. In case Customer is acquired by a direct competitor of Supplier, sells a significant portion of its assets to such a competitor, or undergoes a change of control in favor of such a competitor, Supplier reserves the right to terminate the Agreement immediately upon written notice.

13. Governing Law 

a. The applicable law for interpreting the Agreement, determining its existence, or addressing any legal disputes arising from or related to the Agreement, as well as the courts with jurisdiction over such disputes, will depend on the country of incorporation or organization of Customer. This determination will be made as follows:

–  The United States of America, Mexico or a Country in Central or South America or the Caribbean

  • Governing Law: The laws of the State of Maryland and the federal laws of the United States applicable in that state.
  • Courts Having Jurisdiction:
  • The United States District Court for the District of Maryland (to the extent it has subject matter jurisdiction), or
  • The courts of the State of Maryland in Baltimore County

–  Canada

  • Governing Law: The laws of the Province of Ontario and the laws of Canada applicable in that province.
  • Courts Having Jurisdiction: Toronto, Ontario

–  United Kingdom or Another Country in Europe, the Middle East or Africa

  • Governing Law: The laws of England and Wales.
  • Courts Having Jurisdiction: England and Wales

–  Australia or a Country in Asia or the Pacific Region

  • Governing Law: The laws of the State of New South Wales and the laws of the Commonwealth of Australia applicable in that state.
  • Courts Having Jurisdiction: Sydney, Australia

b. Each party accepts the governing law mentioned above, disregarding choice or conflicts of law rules. They also agree, subject to the availability of injunctive relief under Section 5(c) (Confidentiality) and Section 12 (Dispute Resolution), to abide by the jurisdiction of the relevant courts. The parties specifically exclude the United Nations Convention on Contracts for the International Sale of Goods.

14. Disputes: 

Regarding disputes, if any arise between the parties, each party will appoint a senior management representative to attempt resolution. These representatives will negotiate in good faith for thirty (30) days to settle the dispute. If resolution isn’t achieved within this timeframe, the parties will submit the dispute to binding arbitration in the jurisdiction specified in Section 13(a). An impartial arbitrator, well-versed in legal and business matters within the software industry, will handle the arbitration. The parties will equally share the arbitrator’s fee and bear their respective costs, legal or otherwise, related to the arbitration, unless the arbitrator deems otherwise. The arbitration proceedings will be conducted in English, following arbitration rules, and in the location determined based on the customer’s country of incorporation or organization. Importantly, this arbitration process does not hinder a party’s ability to seek injunctive relief.

15. General

a. Export Compliance: acknowledges that its Products and derivatives may be subject to various laws and policies related to economic sanctions, anti-terrorism, export, and technology transfer controls (“Export Laws”). We are responsible for ensuring compliance with these laws when using our Cloud Services ourselves or with partners. We confirm that we are not listed on any U.S. government denied-party list and will not allow access or use of our Products in embargoed countries or in violation of any export law.

b. Anti-Corruption: We affirm that we have not received any illegal or improper benefits from Supplier’s employees or agents related to our agreement. Reasonable business gifts and entertainment are exempt from this restriction. If we become aware of any violations, we will promptly inform the Supplier.

c. Subcontractors: Supplier may use subcontractors to provide or develop Products as it deems fit, without relieving Supplier of its obligations under the agreement.

d. Non-Solicitation: During the agreement and for a year after its termination, both parties agree not to recruit employees of the other party without written consent. Certain exceptions apply, such as general solicitations, use of search firms, or hiring individuals who have left the other party’s employment.

e. Notice Delivery: Notices will be in writing and deemed delivered through various methods, including personal delivery, international shipping services, or email confirmation.

f. Entire Agreement; Order of Precedence; Severability: The agreement represents the entire understanding between the parties, superseding all previous communications. It prevails over conflicting terms in purchase orders. In case of conflict, the terms of specific documents within the agreement control. If any provision is deemed invalid, it does not affect the validity of other provisions. As a customer, you understand and agree that the Supplier may, at its discretion, make changes to these General Terms and Conditions (GTCs) from time to time. Such modifications will take effect thirty (30) days after the Supplier provides you with the updated GTCs. This can be done via email or invoice containing a URL to the updated GTCs, along with a clear notification of the updates. It’s your responsibility to review and familiarize yourself with these changes.

g. If you object to any modifications that significantly reduce your rights or Supplier’s obligations under the GTCs, you can notify Supplier before the effective date of the changes. In such cases, Supplier will either negotiate in good faith regarding those specific modifications or terminate the Agreement with a thirty (30) days notice. This termination right is in addition to any other termination rights outlined in the Agreement. If the Supplier terminates under these circumstances, you’ll receive a Pro-Rata Refund for any Fees already paid for the affected Products, starting from the termination’s effective date.

h. Failure to object before the updated GTCs’ effective date implies your acceptance of these changes. Except for Supplier’s right to update the GTCs as mentioned, and unless agreed otherwise in an SOW or Order Form, any modifications to the Agreement require a written amendment signed by both Parties.

i. Waivers are valid only if provided in writing and signed by the issuing Party, except as expressly stated in the Agreement. Neither Party will be held liable for delays or failures in performance due to Force Majeure Events, with the affected Party excused from performance until the event concludes, provided reasonable efforts are made to mitigate its impact.

j. Suppliers may conduct periodic audits, not more than annually, to ensure your use of the Products aligns with the Agreement. You agree to cooperate with these audits and cover any fees for usage exceeding agreed metrics, notified within thirty (30) days. The audit process won’t unreasonably disrupt your normal business operations, and Supplier bears all audit costs except those related to your cooperation.

k. The Agreement establishes an independent contractor relationship between Supplier and Customer, not an agency, joint venture, or partnership. This means Supplier and its representatives act independently and aren’t agents or employees of Customer, with neither Party authorized to bind the other or enter obligations on their behalf.

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