THESE TERMS OF SERVICE (the “Terms”) APPLY TO THE PURCHASE AND SALE OF PRODUCTS AND SERVICES OFFERED BY OR THROUGH EVERYACTION INC. (“EveryAction”) TO YOU (the “Client”).
“Action” means any 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. The term "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through ownership of more than fifty percent (50%) of the voting interests of a Person or by written agreement.
“Applicable Law” means, except as the context may otherwise require, any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law judgment, decree, or other requirement of any applicable government authority.
“Authorized User” means Client's or its Affiliate’s employees, contractors, and agents (a) authorized by Client or such Affiliate to access and use the Services pursuant to the Terms; and (b) for whom Client has paid for such access to the Services.
“Client Content” means information, data, and other content, in any form or medium, collected, downloaded, or otherwise received, directly or indirectly from Client or an Authorized User by or through the Services. For the avoidance of doubt, Client Content includes Consumer Data, but does not include Unassociated Data. Client irrevocably grants all such rights and permissions in or relating to Client Content as are necessary or useful to EveryAction to enforce and exercise any rights or perform any obligations hereunder.
“Commercially Reasonable Efforts” means efforts that a prudent Person in the same industry under similar circumstances desirous of achieving a particular result would use to achieve that result knowing that the exercise of such efforts does not guarantee the desirous result; however, Commercially Reasonable Efforts does not require: (a) the undertaking of extraordinary or unreasonable measures, (b) the taking of every conceivable effort, (c) a Person to sacrifice its own economic and business interests, incur substantial losses to perform its contractual obligations, or suffer any other detriment that is out of reasonable proportion to that Person’s benefits under the Terms, including any action that would harm a Person’s existence or solvency. Any allegation that a party failed to exercise of Commercially Reasonable Efforts under the Terms shall be considered an immaterial breach of the Terms not warranting termination, rescission, or repudiation of the Terms.
“Consumer Data” means the personal information provided by Consumers. Client shall, from wherever Client obtains Consumer Data, provide, in compliance with Applicable Law, a complete and accurate notice of its collection, use and disclosure practices with respect to Consumer Data (“Privacy Notices”).
“Documentation” means any technical or non-technical manuals, instructions, or other documents or materials that EveryAction provides or makes available to Client in any form or medium and which describe the functionality, components, features, or requirements of the Services, including any aspect of the installation, configuration, integration, operation, availability, use, support, or maintenance thereof.
“Effective Date” means the date upon which the Term begins as evidenced by the signature of an authorized representative of EveryAction contained in an applicable Order Form.
“Fees” has the meaning set forth in an applicable Order Form, which includes the costs (without any setoff, recoupment, deduction, debit, or withholding for any reason, unless such amount is subject to a good faith dispute) associated with access to or use of the Services; however Fees shall not include: (a) any costs associated with validations for any initial Client databases transferred into the Services or (b) any sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any government authority on the Services. Client agrees that, with respect to the timely and complete payment of any Fees contained in an Order Form, time is of the essence.
“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, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Losses” means any and all losses, damages, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' and other professional fees and the costs of enforcing any right to indemnification hereunder arising out of or related to an Action.
“Order Form” means a document signed by both Client and EveryAction, which details the agreed-upon Services along with other transaction-specific information.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Services” mean the online, web-based software applications provided by EveryAction that are described in one or more applicable Order Form(s) and any related Documentation, including upgrades and updates thereto made commercially available by EveryAction to Client, as well as any consulting or other services provided by EveryAction as described in one or more applicable Order Form(s).
“Unassociated Data” means aggregated and anonymized Client Content that does not contain consumer personal information or otherwise identify Client or another Person.
1.1. Access and Use. Subject to and conditioned on Client's payment of Fees and compliance with the Terms, EveryAction hereby grants Client a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by Authorized Users and limited to Client's internal business use.
1.2. Documentation License. EveryAction hereby grants to Client a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term, solely for use by Authorized Users and limited to Client's internal business use.
1.3. Reservation of Rights. Nothing in the Terms grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to the Services, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services are and will remain with EveryAction.
1.4. Changes. EveryAction reserves the right, in its sole discretion, to make any changes to the Terms or the Services that it deems necessary: (a) maintain or enhance: (i) the quality or delivery of the Services to its clients; (ii) the competitive strength of or market for the Services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with Applicable Law. However, any changes made by EveryAction under this Section 1.4 will apply to EveryAction’s clients generally and shall not be specific to Client.
1.5. Term, Renewal, & Suspension or Termination of Services.
1.5.1. Term. These Terms and any applicable Order Form will begin on the Effective Date and continue for the period as outlined on the Order Form (the “Initial Term”).
1.5.2. Renewal. The Terms and any applicable Order Form will automatically renew for successive additional terms of the same length to the Initial Term (each a “Renewal Term”) unless earlier terminated pursuant to the Terms or either party gives the other party written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current term. The Fees for any Renewal Term shall be at the then-current Fees as of the first day of the applicable Renewal Term for the applicable Services or as reasonably determined by EveryAction upon thirty (30) days prior written notice.
1.5.3. Late Charges. On any outstanding Fees, EveryAction may impose interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under Applicable Law and shall be entitled to recover from Client all costs (including reasonable attorneys’ fees) incurred by EveryAction in collecting any late payment or interest.
a. For Cause. If a party (the “Non-Breaching Party”) believes that the other party (the “Breaching Party”) has materially breached one or more of its obligations under the Terms or one or more Order Form(s), then the Non-Breaching Party may deliver notice of such material breach to the Breaching Party specifying the nature of the alleged breach in reasonable detail (a “Default Notice”). Thereafter, the Non-Breaching Party shall have the right to terminate this Agreement if the breach asserted in such Default Notice has not been cured within sixty (60) days after such Default Notice. Notwithstanding the foregoing, (i) if such material breach, by its nature, cannot be remedied within such sixty (60) day cure period, but can be remedied over a longer period not expected to exceed one hundred and fifty (150) days, then such sixty (60) day period shall be extended for up to an additional ninety (90) days provided that the Breaching Party provides the Non-Breaching Party with a reasonable written plan for curing such material breach and uses Commercially Reasonable Efforts to cure such material breach in accordance with such written plan and (ii) if such material breach cannot be cured, but the effects of such material breach are not such that the Non-Breaching Party would be deprived of the material benefits the Non-Breaching Party would reasonably be expected to derive from this Agreement in the absence of such material breach, then the Non-Breaching Party shall not be entitled to terminate this Agreement on the basis of such material breach unless the Breaching Party has previously committed a substantially similar material breach of this Agreement. For clarity, a breach of Sections 1.5.4(b)(2)(i) through (iii), Section 6, Section 7, and Section 11.15 of the Terms or a breach by Client as to its payment of Fees shall not, notwithstanding anything herein, fall within the exception in subpart (ii) of the immediately preceding sentence.
b. By EveryAction. EveryAction may suspend, terminate, or otherwise deny Client or any Authorized User access to or use of the Services, without incurring any resulting obligation or liability, if (1) EveryAction receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires EveryAction to do so; or (2) EveryAction believes, in its reasonable discretion, that (i) Client or any Authorized User have failed to comply with the Terms, or accessed or used the Services beyond the scope of rights granted or for a purpose not authorized under the Terms or in any manner that does not materially comply with the Documentation; (ii) Client or any Authorized User are, or have been, or are likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with the Services; (iii) Clients or any Authorized User’s use of the Services disrupts or poses a security risk to the Services or to the information technology systems of any other client or vendor of EveryAction, including introducing virus, worm, malware, or other malicious computer code (“Harmful Code”) through use of the Services; (iv) Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (v) the Terms (or an applicable Order Form) expires or is otherwise terminated.
c. Disputed Breach. If the Breaching Party disputes in good faith and acting reasonably the existence or materiality of a breach specified in a Default Notice provided by the Non-Breaching Party pursuant to Section 1.5.4(a), and the allegedly Breaching Party provides notice to the Non-Breaching Party of such dispute within the applicable cure period provided in Section 1.5.4(a), the Non-Breaching Party shall not have the right to terminate the Terms or an applicable Order Form unless and until the existence of such material breach or failure has been determined in accordance with Section 11.9 and the allegedly Breaching Party fails to cure such breach within thirty (30) days following such determination. It is understood and acknowledged that while such a dispute is pending all of the terms and conditions of the Terms and any applicable Order Form(s) shall remain in effect and the parties shall continue to perform all of their respective obligations thereunder. The parties further agree that any payments that are made by a party to the other party pursuant to the Terms or an applicable Order Form pending resolution of the dispute shall be promptly refunded if an appropriate court determines pursuant to Section 11.9 that such payments are to be refunded by one party to the other party.
d. Effect of Expiration or Termination. Upon the expiration or earlier termination: (a) each party shall comply with Section 6.5 of the Terms; (b) Client shall immediately discontinue use of the Services, and (c) EveryAction shall, after the expiration of all applicable regulatory requirements and receipt of all amounts owed to it by Client, deliver or make available to Client a copy of the Client Content in a commonly accessible data format.
2. USE RESTRICTIONS.
2.1. Use Restrictions. Client shall not, and shall not permit any other Person to, access or use the Services except as expressly permitted by the Terms. Without limiting the generality of the foregoing, Client shall not, except as the Terms expressly permit: (a) copy, modify, or create derivative works or improvements of the Services; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services to any Person other than an Authorized User; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services; (d) remove, alter, or obscure any proprietary notices from the Documentation; (e) transmit any content, data or information that is unlawful, abusive, malicious, harassing, or violates Applicable Law or any Privacy Notices; (f) access the Services for the purpose of building a competitive product or service or copying its features or user interface, or (g) engage in any other conduct when using the Services that EveryAction deems inappropriate or inconsistent with its business ethos.
3. CLIENT RESPONSIBILITIES.
3.1. Client Cooperation. Client shall: (a) make all Authorized Users aware of the Terms as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions; (b) set up, maintain, and operate in accordance with the Documentation; and (c) provide all cooperation and assistance as EveryAction may reasonably request to enable EveryAction to exercise its rights and perform its obligations under and in connection with Services.
3.2. Effect of Client Failure or Delay. EveryAction is not responsible or liable for any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its responsibilities under the Terms (each, a “Client Failure”).
3.3. Corrective Action and Notice. If Client becomes aware of any actual or threatened activity prohibited by Section 2.1, Client shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify EveryAction of any such actual or threatened activity.
4. SUPPORT AND DATA BACKUP.
4.1. Support. EveryAction will use Commercially Reasonable Efforts to provide the Services and any Support thereto as set out and referenced in the Documentation.
4.2. Data Backup. The Services do not replace the need for Client to maintain regular data backups or redundant data archives. EVERYACTION HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CLIENT CONTENT OR CONSUMER DATA.
5.1. EveryAction Security Protocols. EveryAction will employ and maintain security measures and data breach response protocols in accordance with EveryAction’s Privacy Statement (the “Privacy Statement”), which the parties recognize are Commercially Reasonable Efforts by EveryAction.
5.2. Client Control and Responsibility. Client shall: (a) retain control over and responsibility for: (1) all Client Content, including its content and use; (2) all information, instructions, and materials provided by or on behalf of Client or any Authorized User in connection with the Services; and (3) Client’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Client or through the use of third-party services (“Client Systems”); and (b) employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to securely administer the distribution and use of all identification numbers, passwords, licenses or security keys, security tokens, PINs, or other security codes, methods, technologies, or devices used, alone or in combination, to verify an individual's identity and authorization to access and use the Services and protect against any unauthorized access to or use of the Services.
6.1. Confidential Information. In connection with the Terms, each party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”) information about its business affairs, products, pricing, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Without limiting the foregoing, the financial terms of an Order Form shall be Confidential Information of EveryAction.
6.2. Exclusions. Confidential Information does not include: (a) Unassociated Data, or (b) information that, at the time of disclosure is: (1) in the public domain; (2) known to the Receiving Party at the time of disclosure; (3) rightfully obtained by the Receiving Party on a non-confidential basis from a third-party; or (4) independently developed by the Receiving Party.
6.3. Protection of Confidential Information. . As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall: (a) not disclose the Disclosing Party's Confidential Information to any Person, except to a Person who: (1) has a need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with the Terms and (2) has been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 6.3; and (3) is bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 6; (b) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and (c) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and reasonably cooperate with Disclosing Party to prevent further unauthorized use or disclosure.
6.4. Compelled Disclosures. If the Receiving Party is compelled under Applicable Law to disclose Confidential Information then, to the extent permitted by Applicable Law, the Receiving Party shall prior to such disclosure, provide the Disclosing Party with sufficient notice of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 6.3.
6.5. Effect of Termination. On the expiration or termination of the Services, the Receiving Party shall, at the direction of the Disclosing Party, either (a) return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party’s Confidential Information, or (b) destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. Notwithstanding any other provisions of the Terms, the Receiving Party’s obligations under this Section 6 with respect to any Confidential Information that constitutes a trade secret under Applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such Applicable Law other than as a result of any act or omission of the Receiving Party.
7. INTELLECTUAL PROPERTY RIGHTS.
7.1. Respective Rights. All right, title, and interest, including all Intellectual Property Rights therein, to the Services are and will remain with EveryAction and, with respect to Client Content, all right, title, and interest, including all Intellectual Property Rights are and will remain with Client, subject to the rights and permissions granted in the Terms.
7.2. Unassociated Data. EveryAction may collect and compile Unassociated Data for any purpose, including benchmarking and statistical analysis. As between EveryAction and Client, EveryAction shall own and retain all right, title, and interest in Unassociated Data, and all Intellectual Property Rights therein. Client acknowledges and agrees that EveryAction may compile Unassociated Data based on Client Content and Consumer Data inputted into the Services, and that EveryAction may make Unassociated Data available to any Person to the extent and in the manner permitted under Applicable Law. For clarity, and to the extent necessary, Client hereby unconditionally and irrevocably grants to EveryAction an assignment of all right, title, and interest in and to the Unassociated Data, including all Intellectual Property Rights relating thereto.
8. LIMITED WARRANTY AND DISCLAIMER.
8.1. By EveryAction. EveryAction warrants to Client that: (a) the Services will materially conform to the Documentation when accessed and used in accordance with the Documentation; and (b) EveryAction will exercise Commercially Reasonable Efforts in performing the Services. However, EveryAction shall not be liable under this Section 8.1 based upon or arising out of any inaccuracy in or breach of any of the warranties of EveryAction contained in these Terms if Client had knowledge of such inaccuracy or breach prior to the Effective Date.
8.2. Exclusive Remedy. Client’s exclusive remedy and EveryAction’s sole liability for breach of the limited warranty in Section 8.1 is correction of the warranted non-conformity or reperformance of the non-conforming Services, or if EveryAction fails to correct the warranted non-conformity after using Commercially Reasonable Efforts, EveryAction may terminate access to the nonconforming Services and refund the Fees paid in respect of such Services for the remainder of the applicable Term of such Services, starting with the date Client reported the non-conformity to EveryAction. To claim the benefit of this express warranty, Client must give EveryAction written notice of any breach of the express warranty, describing any non-conformity in the Services with reasonable particularity, within thirty (30) days following Client’s discovery of the allegedly non-conformity with respect to the Services.
8.3. DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 8.1, THE SERVICES ARE PROVIDED “AS IS.” EVERYACTION 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, EVERYACTION MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY 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 PRODUCTS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY PRODUCTS IS STRICTLY BETWEEN CLIENT AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY PRODUCTS.
9.1. General. The party seeking indemnification hereunder shall promptly notify the indemnifying party in writing of any Action and cooperate with the indemnifying party at the indemnifying party's sole cost and expense using counsel of its choice to handle and defend the same.
9.2. EveryAction Indemnification. EveryAction shall indemnify Client and its officers, directors, employees, successors, and permitted assigns (each, a “Client Indemnitee”) from and against any and all Losses incurred by Client resulting from any Action by a third party (other than an Affiliate of a Client Indemnitee) (a “Client Indemnity Claim”) alleging:
9.2.1. Client’s use of the Services in accordance with the Terms or Documentation infringes or misappropriates, in EveryAction’s reasonable discretion, a third-party's United States’ Intellectual Property Rights except to the extent that the alleged infringement arises from: (a) use of the Services in combination with data, software, hardware, equipment, or technology not provided or authorized by EveryAction, including Client Content; (b) any modification of the Services by Client; and (c) the failure by Client to timely implement any modifications, upgrades, replacements, or enhancements made available to Client.
9.2.2. Any bodily injury or death of any Person caused by the grossly negligent or more culpable acts or omissions of EveryAction (including any reckless or willful misconduct) except to the extent such Action arises out of or results from, in whole or in part, from Client’s negligence, gross negligence, or more culpable act or omission (including recklessness or willful misconduct).
9.3. Client Indemnification. Client shall indemnify EveryAction and its officers, directors, employees, successors, and assigns (each, a “EveryAction Indemnitee”) from and against any and all Losses incurred by an EveryAction Indemnitee related to any Action by a third-party (other than an Affiliate of a EveryAction Indemnitee) (a “EveryAction Indemnity Claim”) alleging:
9.3.1. EveryAction’s use of the Client Content, in accordance with the Terms or Documentation, infringes, misappropriates, or otherwise violates Applicable Law or a Person’s Intellectual Property Rights;
9.3.2. Any bodily injury or death of any Person caused by the grossly negligent or more culpable acts or omissions of Client (including any reckless or willful misconduct), except to the extent such Action arises out of or results from, in whole or in part, from EveryAction’s negligence, gross negligence, or more culpable act or omission (including recklessness or willful misconduct).
9.4. Sole Remedy and Mitigation.
9.4.1. Sole Remedy. Notwithstanding anything to the contrary in these Terms, this Section 9 does not apply to any Action (whether direct or indirect) for which another section of these Terms provides a sole and exclusive remedy.
9.4.2. Mitigation. If any of the Services or Documentation are, or in EveryAction’s reasonable opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Rights, or if Client’s or any Authorized User’s use of the Services or Documentation is enjoined or threatened to be enjoined, EveryAction may, at its option and sole cost and expense: (a) procure for Client the right to continue to use the Services under these Terms, or (b) modify or replace the Services so that it no longer infringes but remains functionally equivalent. If neither of the foregoing options is commercially practicable in EveryAction’s reasonable opinion, EveryAction may terminate the allegedly infringing Service and refund the Fees paid in respect of such Service for the remainder of the applicable Term of such Service, starting with the date Client reported the infringement Action to EveryAction.
9.4.3. THIS SECTION 9 SETS FORTH CLIENT’S SOLE REMEDIES AND EVERYACTION’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND DOCUMENTATION OR ANY SUBJECT MATTER OF THE TERMS INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
9.5. Settlement of Indemnified Claims. Both an indemnifying party and indemnified party shall give prompt written notice to the other party of any proposed settlement of an indemnified Action. Neither an indemnifying party nor an indemnified party may, without the other party's prior written consent (not to be unreasonably withheld, conditioned, or delayed) settle or compromise any Action or consent to the entry of any judgment regarding an indemnified matter unless such settlement, compromise, or consent: (a) includes an unconditional release of the other party from all liability arising out of such Action; (b) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of a party; and (c) does not contain any equitable order, judgment, or term (other than the fact of payment or the amount of such payment) that in any material manner affects, restrains, or interferes with the business of the other party.
10. LIMITATIONS OF LIABILITY.
10.1. EXCLUSION OF DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY 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; (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. HOWEVER, THE LIMITATIONS IN THIS SECTION 10.1 SHALL NOT APPLY TO (x) INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR (y) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9.
10.2. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EVERYACTION TO CLIENT, ITS AFFILIATES, OR ANY AUTHORIZED USERS ARISING OUT OF OR RELATED TO THE TERMS OR THE SERVICES, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT PAID TO EVERYACTION UNDER THESE TERMS OR THEN-VALID ORDER FORM(S) BETWEEN EVERYACTION AND CLIENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE ACTION OR $100,000.00, WHICHEVER MONETARY AMOUNT IS LESS.
10.3. IF REMEDY FAILS ESSENTIAL PURPOSE. THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION 10 SHALL APPLY EVEN IF THE NON-BREACHING PARTY'S REMEDIES UNDER THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE PARTIES ENTERED INTO THESE TERMS IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 10, THAT THE SAME REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS), AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
11.1. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Terms creates 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.
11.2. Notices. All notices, requests, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the most recent Order Form by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid).
11.3. Interpretation. The parties intend that the construing of the Terms is without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument.
11.4. Entire Agreement. These Terms, together with any Order Form(s), Documentation, and Privacy Statement (each of which are an integral part of the Terms and are incorporated as if set forth fully herein), constitutes the sole and entire agreement of the parties, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of the Terms, an Order Form, and any other documents incorporated herein by reference, unless such inconsistency is expressly acknowledged as intended in a document, the following order of precedence governs: (a) first, these Terms; (b) second, an Order Form; and (c) third, the other documents listed above.
11.5. Assignment. Client may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of EveryAction, which consent shall not be unreasonably withheld, conditioned, or delayed, and any such assignment or delegation will be invalid. No assignment or delegation will relieve Client of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns. EveryAction may assign, delegate, or novate its rights, duties, or interest in the Terms in its reasonable discretion.
11.6. Force Majeure. In no event shall either party be liable to the other party, or be deemed to have breached the Terms, for any failure or delay in performing its obligations under the Terms, if and to the extent such failure or delay is caused by any unforeseeable circumstances beyond such party’s control (a “Force Majeure Event”), including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, cyber terrorism or other comparable criminal or willful acts, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances (including EveryAction’s suppliers failure to supply necessary goods or services to EveryAction), passage of Applicable Law or any action taken by a government authority or other public authority, including imposing an embargo, or international, national, or regional shortage of adequate power or telecommunications or transportation.
11.7. Amendment and Modification; Waiver. Except as expressly provided in the Terms, no amendment to or modification of the Terms 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 will be effective unless explicitly set forth in writing and signed by the party so waiving, including any time of the essence provisions as to a party’s obligations. Except as otherwise set forth in the Terms, (a) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Terms will operate or be construed as a waiver thereof and (b) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
11.8. Severability. If any provision of the Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Terms 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 shall negotiate in good faith to modify the Terms so as to effect their original intent 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.
11.9. Governing Law; Submission to Jurisdiction. The Terms is governed by and construed in accordance with the internal laws of the District of Columbia without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the District of Columbia. Any Action arising out of or related to the Terms or the Services will be instituted exclusively in the federal courts of the United States or the courts of the District of Columbia, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Notwithstanding the above, in the event of any dispute between the parties with respect to the Terms or the Services, the parties shall first use their best efforts to resolve such dispute among themselves. If the parties are unable to resolve the dispute within thirty (30) calendar days after the commencement of efforts to resolve the dispute, either party may submit the dispute to an appropriate court.
11.10. WAIVER OF JURY TRIAL. 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 THE TERMS OR THE TRANSACTIONS CONTEMPLATED THEREIN.
11.11. Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Sections 2.1, 6, or 7 would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at Applicable Law, in equity, or otherwise unless provided otherwise in the Terms.
11.12. Electronic Signatures. Each party intends and agrees that the electronic signatures, whether digital or encrypted, of the parties included in an Order Form shall authenticate the Terms and Order Form and shall have the same force and effect as manual signatures. An electronic signature means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record.
11.13. Export Controls. Client will not download or otherwise export or re-export the Services or underlying information or technology in violation of the laws and regulations of the United States or other applicable jurisdictions.
11.14. Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to the Terms or, unless expressly permitted under the Terms, 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 EveryAction may, without Client’s consent, include Client’s name and other indicia in its lists of EveryAction’s current or former customers of EveryAction in promotional and marketing materials.
11.15. Business Ethos. The parties shall, and to each of their respective Affiliates and the respective executives and other senior management of each party and such Affiliates shall cause each to, conduct their respective business affairs under the Terms and any Order Form in accordance with the principles set forth in each party’s code of ethics, code of conduct, or similar policies, including without limitation those relating to discrimination against historically-disadvantaged groups (including the LGBT community), lack of recognition of a woman’s right to choose, protection of international human rights, environmental responsibility, unlawful contributions to any candidate for any political office (or failing to fully disclose any contribution in violation of Applicable Law) or making any contribution or other payment to any official of, or candidate for, any federal, state, municipal, or foreign office or other person charged with similar public or quasi-public duty in violation of Applicable Law or of the character required to be disclosed in meeting the spirit or intent of Applicable Law, and bribery of domestic and foreign public official. If Client, its Affiliates, any of their respective executives or its senior management (or a Person of public note associated with Client or any of its Affiliates) should, prior to or during the Term of any Order Form engage in any conduct that in EveryAction’s reasonable discretion is contrary to this Section 11.16 or other immoral, financially irresponsible, or any other conduct that might tend to bring Client or any of its Affiliates into public disrepute, contempt, scandal, or which might otherwise tend to reflect unfavorably upon Client or its Affiliates (each a “Conflict”), Client shall: (a) notify EveryAction of such Conflict and (b) take such reasonable measures as are necessary to mitigate as far as possible or remove the Conflict so disclosed. Prior to or upon notice of a Conflict from Client, EveryAction, and only EveryAction, will have the right to: (c) suspend the Services, (d) terminate the Terms and any then-current Order Form for cause and without further liability or obligation to EveryAction, (e) seek appropriate remedies at Applicable Law or equity, and (f) issue a public announcement announcing any such suspension or termination (as the case may be) which may express or contain statements that criticize, condemn, denounce, or otherwise disapprove of the underlying basis for, or subject matter of, the Conflict and express how such Conflict is antithetical to EveryAction’s code of ethics or overall business ethos.
11.16. Surviving Terms and Statute of Limitations. Subject to the limitations and other provisions of the Terms, Section 6 through Section 11 of these Terms shall survive the expiration or termination of the Terms or an applicable Order Form. The parties must file any Action arising directly or indirectly from Section 9 of these Terms no later than two (2) years after the Action has accrued, and the parties waive the right to file an Action arising directly or indirectly from Section 9 of these Terms under any longer statute of limitations.
Last modified on August 7, 2019