End User License AGREEMENT
PLEASE READ CAREFULLY THIS End User License AGREEMENT (“AGREEMENT”), which CONTAINS THE EXCLUSIVE TERMS AND CONDITIONS BETWEEN Bleach corporation (“COMPANY”), with an address at 111 Congress Ave., Suite 500, Austin, TX 78701, USA, AND YOU (TOGETHER WITH THE ENTITY FOR WHICH YOU REGISTER, ACCESS OR USE THE sERVICE, “Customer”), regarding ACCESS AND USE OF THE SERVICE. YOU REPRESENT AND WARRANT THAT YOU have full legal authority to enter into THIS AGREEMENT, under all applicable laws and on behalf of Customer. BY SELECTING THE “ACCEPT”, “SIGN UP” or similar button or checkbox referencing this Agreement OR by ACCESSING OR USING THE SERVICE (“ACCEPTANCE”), YOU WILL CREATE A LEGALLY ENFORCEABLE CONTRACT where CUSTOMER agreeS TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION.
IF YOU CANNOT OR DO NOT AGREE TO ALL TERMS AND CONDITIONS IN THIS AGREEMENT, YOU SHOULD SELECT THE “DO NOT ACCEPT” or similar BUTTON BELOW AND YOU ARE PROHIBITED FROM ACCESSING OR USING THE service.
1.1.“Analytics” means statistics, metrics and other analyses that are based on or derived from the Service, which are developed in the aggregate with other data or results or in a manner that does not disclose Customer’s identity or Customer Data.
1.2.“Applicable Laws” means any state, federal or foreign law(s), rule(s) or regulation(s) applicable to this Agreement, including those concerning privacy, data protection, confidentiality, information security, availability and integrity, or the handling or processing of Personal Data. Applicable Laws expressly include, if applicable, the California Consumer Privacy Act of 2018 (as amended and supplemented) (“CCPA”), the United Kingdom Data Protection Act 2018 (the “UK Data Protection Act”), including any superseding regulation, and the General Data Protection Regulation (Regulation (EU) 2016/679) (the “GDPR”), EU Directive 2002/58/EC (the “ePrivacy Directive”), and any regulation expressly superseding the ePrivacy Directive, as well as the laws, rules, and regulations of each nation in the European Economic Area (“Member State Law(s)”).
1.3.“Customer Data”means all other information and data provided by Customer, which may be stored, analyzed, processed and used by the Service which excludes Customer Registration Data and shall not include any Personal Data.
1.4.“Customer Registration Data”means information and data provided by Customer for Registration purposes (excluding Customer Data).
1.5.“Documentation”means any user instructions, help information and other documentation regarding the Service that are provided by Company to Customer in electronic or other form.
1.6.“Platform”means the technology platform developed and/or used by Company in providing the Service (including all related ideas, concepts, inventions, systems, hardware, software, interfaces, tools, utilities, content, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information), and including all corrections, improvements and extensions thereto.
1.7.“Personal Data”means any information relating to an identified or identifiable person which is subject to Applicable Laws including any Sensitive Personal Data.
1.8.“Registration”means the process by which Customer registers with Company to access and use the Service including any order form, purchase order or electronic registration.
1.9.“Sensitive Personal Data”means any (a) government-issued identification number (including social security number, driver’s license number or state-issued identification number); (b) financial account number, credit card number, debit card number, credit report information, with or without any required security code, access code, personal identification number or password, that would permit access to an individual’s financial account; (c) genetic, biometric or health data; (d) Personal Data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, sexual orientation or sexual activity, or trade union membership; (e) Personal Data relating to criminal convictions and offenses (including commission of or proceedings for any offense committed or alleged to have been committed) and (f) any other Personal Data designated as sensitive or deserving of heightened protection under applicable individual Member State Law.
1.10.“Service”means the Company products and services identified in the applicable Registration, including certain Internet-accessed business application(s) and/or application programming interfaces identified during Registration, which includes a hosted service (in a cloud environment), branded and provided on a software-as-a-service basis by Company from time to time.
2.1.“Service”Subject to all terms and conditions in this Agreement including terms set forth during Registration and any applicable usage limitations set forth therein, Company grants Customer (without right to sublicense) a nonexclusive, nontransferable right and license to (a) access and use the Service solely for Customer’s internal business purposes, and (b) use the Documentation solely in connection with Customer’s authorized access and use of the Service. Customer’s access and use of the Service shall comply with all other conditions set forth herein or during Registration (such as, for example, any requirements regarding data formats, number or identity of authorized users, size limits, time limits or prohibited uses).
2.2.“Hosting Provider”Customer agrees and acknowledges that Company is free to use any hosting or internet-as-a-service provider in connection with the Services including, without limitation, AWS, Microsoft, GCP or Vultr.
2.3.“Access Credentials”Customer is responsible for maintaining the confidentiality of its access credentials and other account information, and will be liable for any and all activities under its account. Customer shall be responsible for keeping all account information up-to-date. Customer agrees to notify Company immediately of any unauthorized use of Customer’s account or any other breach of security.
2.4.“Customer Data”Customer bears all responsibility and liability for the accuracy and completeness of the Customer Data and Company’s access, possession and use as permitted herein. Company has no obligation to backup, retain or deliver any Customer Data. Customer hereby grants Company a nonexclusive, royalty-free, worldwide right and license to access, copy, store, process, distribute, transmit and otherwise use the Customer Data for the purposes of providing the Service (and support services) to Customer. Without limiting the generality of the foregoing, Customer represents and warrants that it (a) has properly obtained, and will not share any Customer Data with Company unless it has obtained, all necessary rights, consents and authorizations to share the Customer Data with Company and (b) will at all times comply with all Applicable Laws pertaining to the collection, use and disclosure of the Customer Data.
2.5.“Personal Information”Except for Personal Data contained in Customer Registration Data specifically requested by Company during Registration, Customer agrees and acknowledges that Company does not wish to receive any Personal Data from or on behalf of Customer in its use of the Services, and unless the parties specifically agree in writing, Customer shall not provide any Personal Data to Company, and Customer shall not use the Services to transmit, store or otherwise process any Personal Data. Without limiting the foregoing, Customer shall not disclose or make available to Company any Sensitive Personal Data without the express prior written consent of Company.
2.6.“Systems and Access”At its sole cost and expense, Customer is responsible for providing all (a) rights, licenses and permissions necessary for Company to receive and use the Customer Data, (b) modems, servers, devices, storage, software, databases, network and communications equipment and ancillary services needed to connect to, access or otherwise use the Service from Customer’s facility, (c) corresponding backup, recovery, network security and maintenance service and (d) access to third party applications or services used by Customer in connection with the Services (collectively, “Customer Systems”). Customer shall ensure that Customer Systems are compatible with the Service and comply with all configurations and specifications described in the Documentation. Customer acknowledges and agrees that use of the Services may require Customer to provide Company with access to certain Customer Systems and third party applications including the configuration settings related to such systems and applications. Company will not be responsible for any failure to perform the Services arising out of any failure of any Customer Systems, third party aplications, or Customer’s inability or failure to provide access to any of the foregoing.
2.7.“Limitations”Customer acknowledges and agrees that the Service can only provide support and recommendations in connection with Customer’s security practices, and that Company is not responsible for the performance, availability, or function of any third party systems or services or for Customer’s failure to follow the recommendations offered by Company in connection with the Services. Company will not be responsible or liable for any failure in the Service resulting from or attributable to (a) failures in any telecommunications services, networks or systems, (b) Customer’s or any third party’s negligence, acts or omissions, (c) any force majeure or other cause beyond Company’s reasonable control or (d) unauthorized access to the Service, breach of firewalls or other hacking.
2.9.“Changes”Company may update or modify the terms and conditions of this Agreement (in whole or in part). Company will communicate such change including the effective date of such change via the Service, electronic mail or other form of communication reasonably designed to notify Customer of such change. Following any such notice, continued use of the Service after the effective date of the change constitutes Customer’s acceptance of that change.
3.1.“Free Trials”If Customer is using a free version of the Services, all usage of the Services will be subject to all applicable terms and limitations communicated to Customer by Company including during Registration. Upon expiration of the trial, Customer must pay all applicable Fees (defined below) for continued use of the Services.
3.2.“Fees”Customer agrees to pay Company all fees in the amounts and at the times specified during Registration, and as otherwise provided in this Agreement (“Fees”). Fees may be specified as being payable in advance or in arrears; Fees may be fixed, contingent or variable (e.g., depending on usage factors); and Fees may be specified on a recurring basis (e.g., subscription fees and/or usage fees, which may be payable monthly, quarterly or annually) or non-recurring basis (e.g., one-time activation fees). If Customer exceeds any user or usage limitations specified during Registration, then Company shall invoice Customer, and Customer shall pay, for such additional users or usage at the overage rates set forth on the Registration (or if no overage rates are set forth during Registration, at Company’s then-current standard overage rates for such usage). For the avoidance of doubt, Customer’s failure to timely pay all Fees due under this Agreement will be considered a material breach of this Agreement, and without limiting any of Company’s rights and remedies hereunder, Company may terminate this Agreement or suspend Customer’s access to the Service until such Fees are paid.
3.3.“Payment Terms”Unless specified otherwise, all Fees shall be paid in full (without deduction, set-off or counterclaim) within 30 days after invoice in US dollars at Company’s address or to an account specified by Company. Past due amounts shall bear a late payment charge, until paid, at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less. Customer agrees to reimburse Company for all costs (including attorneys’ fees) incurred by Company in collecting late payments.
3.4.“Payment Authorization”Customer gives Company permission to charge its on-file credit card, PayPal account, bank account via ACH or other approved methods of payment (Customer’s “Payment Method”) for Fees that Customer authorizes Company to satisfy via the Registration. Customer agrees to make payment via that selected Payment Method, and the terms of Customer’s payment will be based on Customer’s Payment Method and may be determined by agreements between Customer and the financial institution, credit card issuer or other provider of Customer’s chosen Payment Method. If Company uses a third-party payment processor (a “Payment Procesor”) to bill Customer through a payment account linked to Customer’s account on the Services for use of the Services, the processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement, and Company will not responsible for any error by, or other acts or omissions of, the Payment Processor. If Company, through the Payment Processor, does not receive payment from Customer, Customer agrees to pay all Fees hereunder upon demand.
3.5.“Taxes”All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon Company’s net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government.
4.1.“Scope”The term “Confidential Information” means all trade secrets, know-how, inventions, developments, software and other financial, business or technical information disclosed by or for a party in relation to this Agreement, but not including any information the receiving party can demonstrate is (a) already known by it without restriction, (b) rightfully furnished to it without restriction by a third party not in breach of any obligation to the disclosing party, (c) generally available to the public without breach of this Agreement or (d) independently developed by it without reliance on such information. The Platform, Analytics and pricing information are Company’s Confidential Information.
4.2.“Confidentiality”Except for the specific rights granted by this Agreement, the receiving party shall not access, use or disclose any of the other’s Confidential Information without its written consent, and shall use reasonable care to protect the other’s Confidential Information, including ensuring that its employees and contractors with access (a) have a need to know for the purposes of this Agreement and (b) have been apprised of and agree to the restrictions in this Agreement. Each party shall be responsible for any breach of confidentiality by its employees and contractors. At the disclosing party’s request at any time, the receiving party shall return all of the other’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any legal or regulatory requirement, financing transaction or due diligence inquiry.
4.3.“Compelled Disclosure”Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided, prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
5.1.“Customer”Except for the limited rights and licenses expressly granted hereunder, Customer (and its licensors) shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Customer Data.
5.2.“Company”Except for the limited rights and licenses to access and use the Service and Documentation expressly granted hereunder, no other license is granted, no other use is permitted and Company (and its licensors) shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Documentation, Platform, Service and Analytics.
5.3.“Restrictions”Customer shall not, directly or indirectly (a) use any Company Confidential Information to create any software, platform, service or documentation that is similar to the Platform, Service or Documentation, (b) attempt to access any Platform or Service component or to disassemble, decompile, reverse engineer or otherwise discover any source code or underlying organization, structures, ideas or algorithms of the Platform or Service, (c) encumber, sublicense, distribute, transfer, rent, lease, lend, access or use the Platform or Service in any time-share or service bureau arrangement, (d) copy, adapt, combine, create derivative works of, translate, localize, port or otherwise modify the Platform, Service or Documentation, (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction or (f) permit any third party to do any of the foregoing.
5.4.“General Learning”Customer hereby grants Company a nonexclusive, royalty-free, worldwide perpetual, irrevocable right and license to access, copy, store, process and otherwise use Customer Data in an aggregated or anonymized basis in connection with (a) developing, improving, extending and testing the Platform and Service and (b) designing, developing and producing Analytics. Customer agrees that Company is free to use and disclose the Analytics and aggregate measures of Service usage and performance, and to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Service under this Agreement (including without limitation, that which it could have acquired performing the same or similar service for another customer).
6.LIMITED WARRANTY AND DISCLAIMERS.
6.1.“Customer”Customer represents and warrants to Company that it owns all rights, title and interest in and to the Customer Data, or that Customer has otherwise secured all necessary rights in the Customer Data as may be necessary to permit the access, use and processing thereof as contemplated by this Agreement.
6.2.“Company”Company warrants to Customer that it will use commercially reasonable efforts to (i) provide and maintain the Service in a professional and workmanlike manner and (ii) provide Customer with technical support for the Service in accordance with its then-current service level commitments, which are available at (the “SLA”). Company’s sole obligation and Customer’s exclusive remedy for any failure to comply with the SLA shall be as expressly set forth therein.
6.3.“Disclaimers”EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. COMPANY DOES NOT WARRANT THAT THE SERVICE OR ANYTHING PROVIDED BY COMPANY UNDER THIS AGREEMENT WILL MEET CUSTOMER’S REQUIREMENTS OR RESULT IN ANY OUTCOME, OR THAT OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY HEREBY DISCLAIMS (FOR ITSELF AND ITS LICENSORS) ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICE, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, ACCURACY, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
7.1.“Customer”Customer agrees to defend Company against any demand, suit, action or other claim by a third party that is related to any Customer Data or breach of Customer’s representations or warranties hereunder, and to indemnify Company for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of any such claim.
7.2.“Company” Company agrees to defend Customer against any demand, suit, action or other claim by a third party that Customer’s use of the Service in accordance with this Agreement infringes a valid US patent, or any copyright or trade secret, of such third party, and to indemnify Customer for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of any such claim. The foregoing states the entire liability of Company, and Customer’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Service, any part thereof or its use or operation. Notwithstanding the foregoing, Company shall have no liability or obligation to Customer hereunder with respect to any claim based upon (i) any use of the Services not strictly in accordance with this Agreement, (ii) use of any Services in an application or environment or on a platform or with devices for which it was not designed or contemplated, (iii) alterations, combinations or enhancements of the Services not approved by Company, (iv) Customer’s continuing allegedly infringing activity after being notified thereof or its continuing use of any version of the Services after being provided modifications that would have avoided the alleged infringement or (v) any intellectual property right in which Customer or any of its affiliates has an interest.
7.3.“Conditions”The indemnifying party’s obligations hereunder are conditioned on (a) the party seeking indemnification providing prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith and (b) the indemnifying party having sole control and authority to defend, settle or compromise such claim. The indemnified party may participate in the defense at its sole cost and expense. The indemnifying party will not enter into any settlement that adversely affects the indemnified party’s rights or interest without its prior written approval, not to be unreasonably withheld. The indemnifying party shall not be responsible for any settlement it does not approve in writing.
7.4.“LIMITATION OF LIABILITY”EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY (OR ITS LICENSORS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OF DATA, LOSS OR INTERRUPTION OF USE, OR COST TO PROCURE SUBSTITUTE TECHNOLOGIES, GOODS OR SERVICES, (B) ANY MATTER BEYOND ITS REASONABLE CONTROL INCLUDING ERRORS ON CUSTOMER SYSTEMS, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL OR (D) AGGREGATE DAMAGES IN EXCESS OF THE AMOUNT PAID TO COMPANY FOR THE SERVICE DURING THE PRIOR 12 MONTHS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
8.TERM AND TERMINATION.
8.1.“Term”This Agreement shall commence upon Acceptance and continue in effect for the time period specified during Registration (the “Initial Term”). As specified during Registration and upon expiration of the Initial Term or any subsequent term, this Agreement may renew automatically for an additional time period of the same length as the Initial Term (each such term, a “Renewal Term” and together with the Initial Term, collectively, the “Term”) unless Customer provides notice of non-renewal to Company prior to the end of the then-current Term.
8.2.“Termination”This Agreement may be earlier terminated (in whole, or in respect of any Service) by either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 30 days after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course. Notwithstanding the foregoing, Company may suspend or terminate this Agreement upon written notice to Customer in the event Customer’s breach of this Agreement is incurable or upon Customer’s failure to timely pay all invoices hereunder.
8.3.“Effects of Termination”Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive and (b) the provisions of Sections 3 (Payments), 4 (Confidentiality), 5 (Proprietary Rights), 6 (Limited Warranty and Disclaimers), 7 (Indemnification), 8 (Limitation of Liability), 10 (General Provisions) and this Section 9 shall survive.
9.2.“Governing Law”This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, USA, without regard to its conflicts of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Unless waived by Company in its sole discretion, exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in New Castle County, Delaware, and both parties consent to the jurisdiction of such courts with respect to any such action.
9.3.“Remedies”Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 4 or 5, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of proving actual damages or posting any bond.
9.4.“Notices”Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing, in English and delivered to the parties at their respective addresses stated herein, during Registration or at such other address designated by written notice. Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or electronic mail; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
9.5.“Publicity”Customer hereby consents to inclusion of its name and logos in customer lists that may be published as part of Company’s marketing and promotional efforts. Otherwise, neither party may issue any press release or other public announcement concerning the arrangements under this Agreement without the other party’s prior written consent, not to be unreasonably delayed, conditioned or withheld.
9.6.“Assignment”This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent, not to be unreasonably withheld. However, without consent, Company may subcontract performance of all or any part of the Service, and either party may assign this Agreement to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
9.7.“Independent Contractors”The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
9.8.“Acknowledgment”Customer acknowledges that (a) it has read and understands this Agreement, (b) it has had an opportunity to have its legal counsel review this Agreement, (c) this Agreement has the same force and effect as a signed agreement, (d) Company requires identification of the Customer before issuing this license to access and use the Service and (e) entering into this Agreement does not constitute general publication of the Platform, Analytics or Documentation.