Please read this Master Subscription Agreement (this “Agreement”) carefully. This is a legal contract governing your use of the services hosted by Tangibly, Inc. When you accept this Agreement, either by clicking “Accept” or by signing an Order Form or statement of work referencing this Agreement, you accept all the terms of this Agreement on behalf of yourself and any legal entity or individual you represent (collectively “Customer”).
If you are accepting this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind the entity and its Affiliates to this Agreement. If you do not have authority, or if you do not agree with these terms, you must not accept this Agreement and may not use the Hosted Services.
For good and valuable consideration, the receipt and sufficiency of which the Parties acknowledge, the Parties agree as follows:
“Affiliate,” with respect to any person, means an entity controlling, controlled by or under common control with the person. “Control,” for purposes of this definition, means direct or indirect ownership or control of over 50% of the voting interests.
“Customer Content” means any documents, images and other materials Customer stores in the Hosted Service or manages with the Hosted Service.
“Customer Metadata” means metadata associated with Customer Content, but excluding the Customer Content.
“Customer Trademark” means any trademark Customer provides Tangibly for use in referring to Customer within the user interface for the Hosted Service.
“Documentation” means Tangibly’s then-current online help, guides, and manuals published by Tangibly and made generally available by Tangibly for the Hosted Services. Documentation includes any updated Documentation that Tangibly provides.
“Effective Date” means the date Customer accepts this Agreement. The “effective date” of an Order Form will be the date Customer executes such Order Form.
“Fees” means the fees Customer must pay Tangibly: (a) for use of the Hosted Services during a Subscription Term or (b) to receive Professional Services, as such fees are reflected on an Order Form or SOW.
“Hosted Service” means Tangibly or another generally available online, web-based application or service on www.tangibly.com, as Tangibly updates it from time to time.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order Form” means an ordering document under which Customer agrees to purchase a Hosted Service.
“Party” means you or Tangibly individually; and “Parties” means you and Tangibly collectively.
“Professional Services” includes training, consulting, onboarding or implementation services (not including support) that Tangibly provides to Customer under a mutually executed SOW or Order Form.
“Provider” means a Third Party service provider (e.g. law firm or accounting firm) whose principals, employees or representatives Customer authorizes to use the Hosted Services for the benefit of Customer.
“Renewal Subscription Term” has the meaning given by Section 10.2.
“SOW” means a mutually executed statement of work detailing the Professional Services that Tangibly will perform for Customer, and any related Fees.
“Subscription Term” has the meaning given by Section 10.2.
“Third Party” means an individual or an entity other than a Party, a Party’s Affiliate, or a director, officer, employee, successor or assign of a Party or a Party’s Affiliate.
“Users” means individuals whom Customer authorizes to use the Hosted Services on Customer’s behalf or for Customer’s benefit. Users may include employees, consultants, contractors and agents of Customer, and Third Parties with which Customer transacts business. Users may not include employees, consultants, contractors, representatives or agents of a Tangibly competitor.
HOSTED SERVICES; RELATED PROVISIONS.
2.2.1. Unless otherwise specified in the Order Form, Tangibly charges for Hosted Services based on the number of Users. Each individual Customer authorizes to use the service is a “User,” and Users may not share log-on credentials. Customer may authorize no more than the number of Users specified on an Order Form and for which Customer has paid the Fee. Tangibly, at its option, may assess the number of Users from time to time and, if the assessed number of Users exceeds the Customer’s subscription, may increase the Customer’s subscription to the appropriate Fee and invoice or charge the Customer for the increase under Section 6.
2.2.2. Customer, as between Customer and Tangibly, is solely responsible for its relationship with each User and, if the User is employed by a Provider or other Third Party, the Third Party, including any agreements regarding services, access to Customer Content and confidentiality.
2.3. Restrictions. Customer will not, and will make commercially reasonable efforts to ensure that its Users do not: (a) directly or indirectly: resell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose the Hosted Services to a Third Party, otherwise commercially exploit the Hosted Services or allow a Third Party other than Users to use the Hosted Services; (b) modify, make derivative works of, disassemble, reverse compile, reverse engineer, or subvert the intrinsic security, integrity, or performance of any part of the Hosted Services for any purpose including discovering individual Customer Content or re-identifying anonymous data; (c) access or use the Hosted Services to build a similar or competitive product or service; (d) copy any features, functions or graphics of the Hosted Services for any purpose other than as authorized by this Agreement; (e) interfere with or disrupt the integrity or performance of the Hosted Services; (f) use any e-mail addresses and other contact information provided on Hosted Services for marketing or advertising purposes; or (g) send, store, access, post, transmit, link to, or otherwise distribute any spam, unlawful, infringing, obscene or libelous materials, or Malicious Code. Customer will make reasonable efforts to prevent unauthorized Third Parties from accessing the Hosted Services, and notify Tangibly promptly of any such unauthorized access or use.
2.4. Customer Content. Customer will be solely responsible for: (a) the accuracy and legality of Customer Content, the means by which it acquires and uses Customer Content (including privacy and data protection), and has obtained all rights in the Customer Content to permit Tangibly’s compliance with its obligations under this Agreement; (b) complying with all local, state, national and foreign laws, treaties, regulations and conventions governing data privacy, international communications, and the export and reexport of technical data or personal data; and (c) its acquisition, implementation, support, or maintenance of Third Party products or services purchased by Customer that may interoperate with the Hosted Services. Customer acknowledges that Customer Content may be exported from the United States if a User accesses the Customer Content while outside of the United States.
During the Subscription Term, Tangibly will assist Customer by telephone, e-mail or online chat as set forth in the applicable Order Form. In addition, Tangibly will use reasonable commercial efforts to correct at no additional charge any reproducible errors reported by Customer, except that Tangibly has no obligation to correct errors caused by: (a) unauthorized modification to the Hosted Services, (b) use of the Hosted Services other than as described in the Documentation, or (c) Customer’s using the Hosted Services with other hardware or software not supplied by Tangibly or authorized by Tangibly in writing. Tangibly from time to time may modify the support services (or particular components of the support services), provided that such modifications do not materially reduce the support services in effect as of the Effective Date of this Agreement. Tangibly will use commercially reasonable efforts to notify Customer of any material modifications to the support services by posting a notice on the Hosted Services.
If Customer requests Professional Services, Tangibly will provide a SOW detailing the Professional Services and the associated Fees. No SOW will bind the Parties until it is signed by both Parties. Tangibly will perform the Professional Services described in each SOW according to the timeframes set forth in the SOW. Tangibly will control the manner and means by which the Professional Services are performed and reserves the right to determine which personnel are assigned to perform the Professional Services. Tangibly may use Third Parties to perform the Professional Services, provided, however, that Tangibly remains responsible for such Third Parties’ acts and omissions. Tangibly retains all right, title, and interest in and to anything used or developed to perform the Professional Services, including but not limited to software programs, tools, specifications, ideas, concepts, inventions, processes, techniques, and know-how. If Tangibly delivers anything to Customer while performing the Professional Services, Tangibly grants Customer a nonexclusive, non-transferable, royalty-free license to use those deliverables during the Subscription Term, solely in conjunction with Customer’s use of the Hosted Services.
5.1. By Tangibly. Tangibly, as between the Parties, will own and retain all right, title and interest in and to the Hosted Services, Professional Services, and Tangibly Confidential Information (defined below), including all intellectual property rights. The look and feel of the Hosted Services is copyright © Tangibly Legal Technologies Inc., All rights reserved. Customer may not duplicate, copy, or reuse any portion of the Hosted Services, or visual design elements or concepts without prior written permission from Tangibly. No rights are granted to Customer other than as set forth in this Agreement.
5.2. By Customer.
5.2.1. General. Customer, as between the Parties, will own all right, title and interest in and to any Customer Content, Customer Metadata and Customer Confidential Information, including all intellectual property rights. Customer retains all moral rights to Customer Content and Customer Confidential Information, including the rights of integrity and attribution; however, Customer waives these rights and agrees not to assert them against Tangibly, solely to enable it to reasonably exercise the rights granted to it under this Agreement.
5.2.2. Customer Metadata. Customer grants to Tangibly the royalty-free, nonexclusive, worldwide right to: (a) use, host, store, reproduce, modify, adapt, transmit, communicate the Customer Metadata to operate, provide, support, improve and develop the Hosted Services, including developing additional functionality or services, and (b) use the Customer Metadata to compile, use and publish anonymized aggregate statistics, provided the statistics do not identify the Customer or disclose Customer Content or other Customer Confidential Information.
5.3. Feedback. Customer or Users from time to time, may provide Tangibly with comments, questions, enhancement requests, suggestions, ideas, process descriptions or other information related to the Hosted Services (“Feedback”). Tangibly has no obligation to act on any Feedback, but Customer and each User grants Tangibly a nonexclusive right and license to use and incorporate Feedback into the Hosted Services without restriction or payment to Customer or any User.
BILLING AND PAYMENT.
6.1. General. Customer will pay the Fees specified by the Order Form or SOW at the times specified by the Order Form or SOW (or, if the Order Form or SOW does not specify, annually in advance), in each case in full, without deduction or setoff of any kind, in U.S. Dollars. All Fees under this Agreement are nonrefundable except as otherwise provided by this Agreement. The Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer will be responsible for payment of all such taxes, levies, or duties, even if such amounts are not listed by Tangibly. If an applicable tax authority requires Tangibly to pay any taxes that should have been payable by Customer, Tangibly will advise Customer in writing, and Customer will promptly reimburse Tangibly for the amounts paid. Except as otherwise provided in an Order Form or SOW, payment for invoices is due within fifteen (15) days of Customer’s receipt of the invoice. If payment is not received by the due date, Tangibly may, in addition to taking any other action at law or equity, to: (a) charge interest on past due amounts at one and a half percent (1.5%) or the highest interest rate allowed by law, whichever is less, and to charge all expenses of recovery (including reasonable attorneys’ fees), (b) suspend Customer’s access to the Hosted Services until overdue amounts are paid in full, including any interest assessed on the overdue amounts, and (c) terminate the Order Form or SOW.
6.2. Initial Subscription Term. Except as otherwise provided in the Order Form or SOW, the Fees during the initial Subscription Term will be: (a) based on the number of Users as of the Effective Date; (b) fixed during the initial Subscription Term; and (c) charged or invoiced upon execution of such Order Form or SOW.
6.3. Renewal Subscription Term. Except as otherwise provided in the Order Form, Fees for any Renewal Subscription Term will be: (a) based on the User count as of the start of such Renewal Subscription Term; (b) subject to up to a seven percent (7%) increase above the pricing in the prior Subscription Term, unless Tangibly provides notice of different pricing at least thirty (30) days prior to the renewal Subscription Term; and (c) charged automatically at the start of each Renewal Subscription Term, or if applicable, invoiced approximately thirty (30) days prior to the start of the Renewal Subscription Term. Except as provided in the Order Form or SOW, renewal of promotional or one-time priced Subscription Terms will be at Tangibly’s applicable list price in effect on the first day of the Renewal Subscription Term. To the extent the assessment provided for in Section 2.2.1 demonstrates additional Fees are payable by Customer, Tangibly will invoice or charge the Customer for such additional prorated Fees at the end of such quarter. The Fees for the renewal Subscription Term will not be lower than the Fees for the previous Subscription Term.
LIMITED REPRESENTATIONS & WARRANTIES.
7.1. Authority. Each Party represents and warrants that: (a) it has the power and authority to enter into this Agreement; (b) the individuals accepting this Agreement and the individuals accepting or signing each Order Form and SOW on the warranting Party’s behalf has all necessary authority to bind the warranting Party to the document; (c) its execution of this Agreement violates no other agreement to which the warranting Party is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation.
7.2. Non-Competition. Customer represents and warrants that: (a) it is not a competitor of Tangibly, and (b) will not become Tangibly’s or a Tangibly Affiliate’s competitor regarding the Hosted Services, except with Tangibly’s prior written consent. In addition, Customer represents and warrants it will not access the Hosted Services to monitor their availability, performance or functionality, or for any other benchmarking or competitive purposes.
7.3. Product Warranty.
7.3.1. Paid Services. Tangibly warrants that: (a) it will provide the Hosted Service in a manner consistent with generally accepted industry standards, (b) the Hosted Service will perform substantially as described in the Documentation when used in the hardware, software and browser operating environment described in the Documentation, and (c) Tangibly will not materially decrease the functionality of the Hosted Service during a Subscription Term. If Tangibly materially breaches the warranties provided by this Section 7.3, Customer’s sole and exclusive remedies are those described in the Section 10.3 titled “Termination Rights.”
7.3.2. Beta and Trial Services. Notwithstanding Section 7.3.1, this Section 7.3.2 applies in place of Section 7.3.1 regarding any Hosted Service, or any Hosted Service feature or function, Tangibly provides to Customer on a “beta test,” “trial” or other no-charge basis. Because of the evaluation nature of those services, features and functions, they are provided on an “as is”, “as available” basis, without warranty of any kind and without support or other services by SnoFox. CUSTOMER AGREES TO USE THE BETA TEST OR TRIAL SERVICES, FEATURES AND FUNCTIONS STRICTLY FOR EVALUATION AND TESTING PURPOSES, AND ITS RELIANCE ON THE AVAILABILITY OR ACCURACY OF THE BETA TEST OR TRIAL SERVICES, FEATURES OR FUNCTIONS SHALL BE ENTIRELY AT ITS OWN RISK.
7.4. Professional Services Warranty. Tangibly warrants that any Professional Services performed under an SOW will be performed in a professional and workmanlike manner by appropriately qualified personnel. Tangibly’s only obligation, and Customer’s only remedy, for a breach of this warranty will be, at Tangibly’s option and expense, to either: (a) promptly re-perform any Professional Services that fail to meet this warranty or (b) terminate the SOW and refund any unused prepaid Fees.
7.5. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND TANGIBLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, IMPLIED WARRANTIES OF NON-INFRINGEMENT, ANY WARRANTIES THAT CUSTOMER’S OR ANY USER’S ACCESS TO THE HOSTED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS (IF ANY) WILL BE CORRECTED, THAT THE HOSTED SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USE OF TRADE, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TANGIBLY WILL HAVE NO RESPONSIBILITY FOR DETERMINING THAT CUSTOMER’S PROPOSED USE OF THE HOSTED SERVICES AND/OR PROFESSIONAL SERVICES COMPLIES WITH LAWS AND REGULATIONS TO WHICH CUSTOMER IS SUBJECT. CUSTOMER ACKNOWLEDGES AND AGREES TANGIBLY IS NOT ENGAGED IN PROVIDING LEGAL ADVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, PROVIDED BY TANGIBLY WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. CUSTOMER ACKNOWLEDGES THAT ITS PURCHASES OF HOSTED SERVICES ARE NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES NOR DEPENDENT ON ANY ORAL OR WRITTEN PUBLIC COMMENTS MADE BY TANGIBLY REGARDING FUTURE FUNCTIONALITY OR FEATURES.
LIMITATION OF LIABILITY.
8.1. General. EXCEPT FOR A BREACH BY CUSTOMER OF OBLIGATIONS IN SECTION 2.3, THE AGGREGATE, CUMULATIVE LIABILITY OF EACH PARTY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, WILL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO TANGIBLY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING FIRST THE EVENT GIVING RISE TO SUCH CLAIM (PROVIDED THAT, IF NO FEES ARE PAID OR PAYABLE, SUCH AMOUNTS WILL BE LIMITED TO ONE THOUSAND DOLLARS (U.S. $1,000.00)). THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6.
8.2. No Indirect Damages. EXCEPT FOR A BREACH BY CUSTOMER OF OBLIGATIONS IN SECTION 2.3, IN NO EVENT WILL EITHER PARTY OR THIRD PARTY PROVIDERS OF TANGIBLY (INCLUDING THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE HOSTED SERVICE, REGARDLESS OF CAUSE, WHETHER IN AN ACTION IN CONTRACT OR NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR THE THIRD PARTY PROVIDER HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
8.3. Allocation of Risk. Customer acknowledges that the pricing of Hosted Services reflects this allocation or risk and the limitation of liability specified, and that Tangibly would not enter into this Agreement without such allocation and limitation.
9.1. Indemnification by Tangibly.
9.1.1. Tangibly will defend, indemnify and hold Customer harmless against any Third Party claims, actions, suits, proceedings, and demands (each a “Claim”) made or brought against Customer where the Third Party expressly asserts that Hosted Services: (a) infringe such Third Party’s patent, trademark or copyright arising under the laws of the United States; or (b) Tangibly misappropriated such Third Party’s trade secrets in developing the Hosted Services arising under the laws of the United States.
9.1.2. Tangibly, if it believes the Hosted Services, or any part of the Hosted Services, may be the subject of an infringement or a misappropriation claim as to which Section 9.1.1 applies, may at its sole expense: (a) procure for Customer the right to continue using the Hosted Services or any part of the Hosted Services under the terms of this Agreement; (b) replace or modify the Hosted Services with a non-infringing version, (c) modify the Hosted Services, or infringing part, to make it non-infringing; or (d) terminate this Agreement regarding the infringing portion of the Hosted Services, and refund any prepaid, unused Fees for such portion of the Hosted Services for the remainder of the then-current Subscription Term after the effective date of termination. THIS SECTION 9.1 REPRESENTS TANGIBLY’S SOLE LIABILITY TO, AND CUSTOMER’S EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS OF ANY KIND IN CONNECTION WITH THE HOSTED SERVICES DELIVERED UNDER OR IN CONNECTION WITH THIS AGREEMENT.
9.1.3. Tangibly will have no indemnification obligation for any Claim under this Agreement to the extent a Claim is based on: (a) modifications to the Hosted Service by anyone other than Tangibly or its agents, or modifications made to conform requirements documents, written specifications or other written materials submitted by Customer or its agents or representatives; (b) the modification of the Hosted Services or the use, combination, or operation of the Hosted Services with equipment, devices, software, systems, or data, other than authorized by this Agreement; (c) Customer’s use of the Hosted Services in violation of this Agreement; (d) Customer’s continued use of any version of the Hosted Service other than the then-current, unaltered version, if infringement would have been avoided by use of a current, unaltered version provided to Customer; (e) Customer’s continued use of the Hosted Services after being notified of allegedly infringing activity or being informed of modifications that would have avoided the alleged infringement; (f) software or services not supplied or specified by Tangibly and employed by Customer; or (g) any Customer software or Customer Content.
9.2. Indemnification by Customer. Customer will defend, indemnify and hold Tangibly harmless against any Claims made or brought against Tangibly asserting: (a) misappropriation, misuse or breach of law related to Customer Content; (b) that the Customer Content or Tangibly’s transmission or hosting of Customer Content infringes or violates the rights of such Third Party; (c) that Customer’s breach of Section 2.3 violates the rights of the Third Party; (d) that Customer violated applicable laws, rules or regulations in its use of the Hosted Services; or (e) any Third Party software or services employed by Customer or any Customer software or Customer Content, or their combination with the Hosted Services, infringes the intellectual property rights of the Third Party.
9.3. Indemnification Procedure. To qualify for the above indemnities, the Party seeking indemnification (the “Indemnified Party”) will provide the other Party (the “Indemnifying Party”) with timely written notice of the Claim so that the timing of the notice does not prejudice the Indemnifying Party’s ability to defend or settle, and will cooperate with the Indemnifying Party in every reasonable way to facilitate the defense and settlement of the Claim. The Indemnifying Party will have sole control over the defense and settlement of any such action to which the above indemnities relate, including control over choosing and obtaining counsel. The Indemnified Party may be represented by, and have counsel appear, at its own expense, regarding any such Claim.
9.4. This Section 9 states the Indemnifying Party’s entire obligation and responsibility, and the Indemnified Party’s sole and exclusive remedy, regarding its subject matter.
10.1. Term of Agreement. The term of this Agreement will commence on the Effective Date and will continue until expiration or termination of this Agreement or Order Forms executed under this Agreement.
10.2. Subscription Term. Each Order Form will be effective for the initial period specified in that Order Form or, if the Order Form specifies no period, for one (1) year from the date of the Order Form (the “Initial Subscription Term”). The Order Form will renew for consecutive one (1) year periods (each a “Renewal Subscription Term”) unless either Party, at least thirty (30) days before the Renewal Subscription Term begins, gives written notice to the other Party of nonrenewal. This Agreement refers to the Initial Subscription Term and all Renewal Subscription Terms are collectively as the “Subscription Term.” The Hosted Service may automatically deactivate and become non-operational at the end of the Subscription Term, and Customer may not access the Hosted Services unless the Subscription Term is renewed.
10.3. Termination Rights. If either Party commits a material breach of this Agreement or any Order Form or SOW and fails to cure the breach within thirty (30) days after receiving written notice of the breach, the other Party, at its option, may terminate all Order Forms and SOWs or the Order Forms or SOWs affected by the breach. Tangibly may terminate all Order Forms by immediate notice if Customer commits a material breach of Section 2.3.
10.4. Effect of Termination. On the expiration of an Order Form or termination of an Order Form by either Party: (a) the Subscription Term for the Hosted Services will immediately terminate; (b) Customer will no longer use the Hosted Services, and any licenses or access granted to Customer relating to same will automatically cease to exist as of the effective date of expiration or termination, and (c) any SOW solely related to the Order Form will automatically terminate. Neither the expiration nor termination of an Order Form or SOW will excuse either Party from any payment or other obligation accruing before the effective date of expiration or termination. If and to the extent Customer has stored Customer Content on systems Tangibly controls, Tangibly will make the Customer Content available for Customer’s retrieval thirty (30) days following expiration of the Order Form or termination of the Order Form other than by Tangibly for cause.
10.5. Survival. The following provisions will survive any termination of this Agreement: Sections 1, 2.3, 2.4, 5, 7, 8, 9, 10.4, 11 and 12.
11.1. Each Party may have access to information confidential to the other Party. As used in this Agreement, “Confidential Information” means all confidential and proprietary information of a Party (“Discloser”) disclosed to the other Party (“Recipient”), whether orally or in writing, that is identified as confidential or that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential, including business and marketing plans, technology and technical information, product designs, trade secrets and business processes. For the avoidance of doubt, Tangibly Confidential Information includes the terms of this Agreement and the pricing and other terms reflected in an Order Form or SOW, and the Hosted Services, and Customer’s Confidential Information includes the Customer Content. Confidential Information will not include information that: (a) is or becomes a part of the public domain through no act or omission of Recipient; (b) was in Recipient’s lawful possession prior to the disclosure and had not been obtained by Recipient directly or indirectly from Discloser; (c) is lawfully disclosed to Recipient by a Third Party without restriction on disclosure; or (d) is independently developed by Recipient without use of or reference to the other Party’s Confidential Information.
11.2. Recipient will use Discloser’s Confidential Information solely to perform, or exercise the rights granted by, this Agreement, and will use all reasonable care to prevent disclosure of Discloser’s Confidential Information to any unauthorized Third Party. Notwithstanding the foregoing, Tangibly may disclose Customer’s Confidential Information (other than Customer Content) to its employees, consultants and contractors solely as required to provide the Hosted Services under this Agreement.
11.3. If Recipient receives a request to disclose any Confidential Information of Discloser pursuant to a subpoena, order, civil or criminal investigative demand, agency administrative demand, law, rule, regulation, or a judicial or similar process issued by a court of competent jurisdiction, Recipient’s regulators or any other administrative body (each such request, a “Disclosure Request”), Recipient may disclose such Confidential Information only to comply with the Disclosure Request or as otherwise required by law. If legally permitted, Recipient will provide Discloser with prompt prior notice of such Disclosure Request and reasonable assistance, at Discloser’s expense, if Discloser wishes to seek protection or confidential treatment of the Confidential Information relevant to the Disclosure Request. If Recipient receives a Disclosure Request as part of a proceeding to which Discloser is a party, and Discloser is not contesting the Disclosure Request or is requesting the Disclosure Request, Discloser will reimburse Recipient for its reasonable cost and fees incurred in compiling and providing secure access to the Confidential Information relevant to the Disclosure Request.
11.4. If Recipient discloses (or threatens to disclose) any Confidential Information of Discloser in breach of this Section 11, Discloser, in addition to any other remedies available to it, may seek injunctive relief to enjoin such acts, it being acknowledged by the Parties that any other available remedies may be inadequate.
11.5. Recipient’s obligations with respect to Discloser’s Confidential Information will continue for five (5) years following the expiration or termination of this Agreement, except that Recipient’s obligations with respect to Discloser’s trade secrets will continue for so long as they remain trade secrets. Recipient, at Discloser’s request, will return to Discloser or destroy all materials containing Discloser’s Confidential Information, provided, that Recipient may retain electronic copies of Discloser’s Confidential Information stored or archived in the normal course of business under Recipient’s normal system backup, disaster recovery or business continuity policy, in each case until the stored or archived material is deleted or destroyed under the policy.
12.1. No Other Beneficiaries. This Agreement is being made and entered into solely for the benefit of the Parties, and neither Party intends by this Agreement to create any rights for any other person as a third party beneficiary of this Agreement or otherwise.
12.2. Assignment. Neither Party may assign this Agreement or any Order Form or SOW in whole or in part without the written consent of the other Party, which consent will not unreasonably be withheld, provided, that either Party may assign this Agreement and all Order Forms and SOWs in their entirety (but not in part) to a successor-in-interest by merger or corporate reorganization, a purchaser of substantially all of the assigning Party’s outstanding equity, or a purchaser of substantially all of the assigning Party’s assets to which this Agreement relates. Any attempted assignment without a required consent is void.
12.3. Force Majeure. Neither Party will be liable for any failure or delay in performance due in whole or in part to any cause beyond the reasonable control of such Party or its contractors, agents or suppliers, including utility or transmission failures, failure of phone lines or phone equipment, power failure, epidemic or public health emergency, strikes or other labor disturbances (including a strike or other labor disturbance affecting he work force of the Party taking advantage of this Section 12.4), Acts of God, acts of war or terror, floods, sabotage, fire, natural or other disasters.
12.4. Relationship of Parties. In making and performing this Agreement, the Parties act and will act as independent contractors, and nothing in this Agreement will be construed or implied to create an agency, association, partnership or joint venture between the Parties. At no time will either Party make commitments or incur any charges or expenses for or in the name of the other Party.
12.5. Notices. All notices, demands and other communications under or related to this Agreement may be provided by electronic mail (or such other address as the Party designates by notice to the other) and will be deemed given on receipt by electronic mail or otherwise. Notices will be sent to:
If to Customer: At the address in the Order Form or SOW
If to Tangibly: [●]
12.6. Governing Law and Jurisdiction. Except with respect to that body of law relating to choice of law, this Agreement will be governed by and construed under the laws of the State of Delaware. The Parties will submit to jurisdiction and venue in such state, and in state courts and the U.S. District Courts in such state. Any award made by a court in litigation between the Parties regarding this Agreement will include an award of all reasonable attorneys’ fees and legal costs incurred by the Party in whose favor the final decision is rendered.
12.7. Severability. If any provision of this Agreement or its application to any person or circumstances will be invalid or unenforceable, the remainder of this Agreement, or its application to any person or circumstances other than those as to which it is invalid or unenforceable, will not be affected, and each provision of this Agreement will be valid and enforced to the fullest extent of the law.
12.8. Amendment. Tangibly may amend this Agreement from time to time by posting the amended version at [●], provided, that the amended Agreement will not take effect for any Order Form until the next Renewal Subscription Term.
12.9. Complete Agreement. This Agreement, together with the Order Forms and SOWs, constitutes the complete Agreement between the Parties and supersedes all previous communications and representations or agreements, either oral or written, regarding the subject matter of this Agreement. The Agreement will not be modified or changed in whole or part other than by an Agreement in writing duly signed by both Parties. Any purchase order, acknowledgment or other business form either Party issues in connection with this Agreement or any Order Form or SOW is solely for the issuing Party’s internal convenience, and will not modify, amend or supplement this Agreement or any Order Form or SOW, irrespective of whether it purports to do so, or whether it is countersigned or acknowledged by the other Party.
12.10. Waiver. This Agreement or any Order Form or SOW may be waived only by a written instrument signed by the Party waiving compliance. The waiver by either Party of a breach of any provision of this Agreement will not operate or be construed as a waiver of any later breach.
12.11. Specific Enforcement. If either Party breaches or threatens to breach Section 2.3 or 11, the other Party may seek from any court of competent jurisdiction preliminary and permanent injunctive relief, which remedy will be cumulative and in addition to any other rights and remedies to which the non-breaching Party may be entitled, without posting bond or other security.
12.12. Publicity. Tangibly may include Customer and the Customer Trademark on the customer list Tangibly provides prospective customers and posts on its website. Tangibly will make no other use of Customer’s name without Customer’s prior written consent.
12.13. Interpretation. In this Agreement,: (a) section headings are for convenience only and will not affect the construction or interpretation of this Agreement, (b) references to section numbers are to sections of this Agreement unless the context requires otherwise; (c) the use of plural will include the singular and the use of the singular will include the plural as the context, (d) references to masculine, feminine or neuter genders will include each and every gender as the context requires, and (e) the words “includes” or “including” will be construed as followed by the words “without limitation.”
12.14. Counterparts; Electronic Transactions. Any Order Form or SOW may be executed in one or more counterparts, each of which will be deemed an original, but all of which will constitute the same instrument. A Party’s acceptance or approval of an Order Form or SOW by electronic mail or other electronic means will bind such Party as if such Party had executed the document in writing.