Please read our terms, enter your initials,
and click "I ACCEPT".
Master Subscription Agreement
AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN
THAT FREE TRIAL.
ACCEPTING THIS AGREEMENT, EITHER BY LOGGING INTO OUR APPLICATION, CLICKING A
BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS
AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO
THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT
YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS
AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR"
SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH
AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT
ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
may not access the Services if You are Our competitor, except with Our prior
written consent. In addition, You may not access the Services for purposes of
monitoring their availability, performance or functionality, or for any other
benchmarking or competitive purposes.
Agreement is effective between You and Us as of the date of You accepting this
means any entity that directly or indirectly controls, is controlled by, or is
under common control with the subject entity. "Control," for purposes
of this definition, means direct or indirect ownership or control of more than
50% of the voting interests of the subject entity.
means this Master Subscription Agreement.
Our services that are not generally available to customers.
information obtained by Us from Our content licensors or publicly available
sources and provided to You pursuant to an Order Form, as more fully described
in the Documentation.
means Our online user guides, documentation, and help and training materials,
as updated from time to time, accessible by login to the applicable Service.
Code" means code, files, scripts, agents or programs intended to do harm,
including, for example, viruses, worms, time bombs and Trojan horses.
"Marketplace" means an online directory,
catalog or marketplace of applications that interoperate with the Services.
Applications" means a Web-based or offline software application that
is provided by You or a third party and interoperates with a Service,
including, for example, an application that is developed by or for You, is
listed on a Marketplace, or is identified as Giva Labs or by a similar
Form" means an ordering document specifying the Services to be provided
hereunder that is entered into between You and Us or any of Our Affiliates,
including any addenda and supplements thereto. By entering into an Order Form
hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if
it were an original party hereto.
Services" means Services that You or Your Affiliate purchase under an
Order Form, as distinguished from those provided pursuant to a thirty-day free
means the products and services that are ordered by You under a thirty-day free
trial or an Order Form and made available online by Us, including associated
offline components, as described in the Documentation. "Services" exclude
Content and Non-Giva Applications.
"User" means an
individual who is authorized by You to use a Service, for whom You have ordered
the Service, and to whom You (or We at Your request) have supplied a user
identification and password. Users may include, for example, Your employees,
consultants, contractors and agents, and third parties with which You transact
"Us" or "Our" means the Giva, Inc. described
in Section 13 (Who You Are Contracting With, Notices, Governing Law and
or "Your" means the company or other legal entity for which
you are accepting this Agreement, and Affiliates of that company or entity.
Data" means electronic data and information submitted by or for You to the
Purchased Services or collected and processed by or for You using the Purchased
Services, excluding Content and Non-Giva Applications.
You register on our website for a free trial (excluding optional fee based
assistance during free trial), We will make one or more Services available to
You on a trial basis free of charge until the earlier of (a) the thirtieth day
after Your acceptance of this Agreement, or (b) the start date of any Purchased
Service subscriptions ordered by You for such Service(s). Additional trial
terms and conditions may appear on the trial registration web page. Any such
additional terms and conditions are incorporated into this Agreement by
reference and are legally binding. If You elect to use Our optional
professional services for assistance with set-up, customization, training, or
technical support to answer questions during a free trial, then You agree to
pay Us for all professional services rendered to You at $175/hour and
according to the terms set forth in Section 6.
DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES
BY OR FOR YOU, DURING YOUR THIRTY-DAY FREE TRIAL WILL BE PERMANENTLY LOST
UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE
TRIAL OR EXPORT SUCH DATA, BEFORE THE END OF THE THIRTY-DAY TRIAL PERIOD.
SECTION 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS),
DURING THE FREE TRIAL THE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY.
review the on-line documentation during the trial period so that You become
familiar with the features and functions of the Services before You make Your
Provision of Purchased Services. We will (a) make the Services and Content
available to You pursuant to this Agreement and the applicable Order Forms, (b)
provide Our standard support for the Purchased Services to You at no additional
charge, and/or upgraded support if purchased, and (c) use commercially
reasonable efforts to make the online Purchased Services available 24 hours a
day, 7 days a week, except for: (i) planned downtime (of which We shall give at
least 8 hours electronic notice posted in the Services and which We shall
schedule to the extent practicable during the weekend hours between 10:00 p.m.
Friday and 3:00 a.m. Monday, Eastern Time/USA and Central Time/USA; Sydney,
Australia Time; Toronto, Canada Time; Frankfurt, Germany Time; and Dubai,
United Arab Emirates Time (ii) any unavailability caused by circumstances
beyond Our reasonable control, including, for example, an act of God, act of
government, flood, climate-related extreme weather event, fire, earthquake,
civil unrest, war, act of terror, strike or other labor problem (other than one
involving Our employees), interruption of or delay in transportation,
unavailability or interruption or delay in telecommunications or third party
services (including DNS propagation), failure of third party software or
hardware or inability to obtain raw materials, supplies, or power used in or
equipment needed for provision of Our Service, Non-Giva Applications, denial of
service attack or other cyberattack or major Internet-wide software bugs or
3.2. Protection of Your Data. Your Data shall be owned by You. Upon
termination or upon request, We will provide a copy of Your Data in an
ODCB-compliant format as soon as practicable. Your Data can be downloaded by
You at any time from Our Report section of the Services.
We will maintain administrative, physical, and technical safeguards for
protection of the security, confidentiality and integrity of Your Data, as
described in the Documentation. Those safeguards will include, but will not be
limited to, measures for preventing access, use, modification or disclosure of
Your Data by Our personnel except (a) to provide the Purchased Services and
prevent or address service or technical problems, (b) as compelled by law in
accordance with Section 8.3 (Compelled Disclosure) below, or (c) as You
expressly permit in writing.
You specifically agree that when You are located in the European Economic Area
("EEA") the terms "Personal Data", "Process", "Data Controller", "Special
Categories of Data", "Processing", "Data Subject", "Third Party Processing" and
"Data Processor" will have the meanings given to them in the EU Directive 95/46
EC. In respect of Personal Data processed under this Agreement, the parties
agree that You are the Data Controller and We are the Data Processor. You and
We both agree to process data in accordance with the local data protection
laws. In addition, the Data Processor agrees that it will only collect, process
and use Personal Data for the sole purpose of performance of Our Services
described hereunder and in accordance with the Data Controller's instructions.
You acknowledge that Personal Data shall not include Special Categories of
Data. We shall have no liability arising from the processing of Personal Data
in accordance with Your written instructions. The Data Processor shall take
appropriate technical and organizational measures to adequately protect
Personal Data against (i) unauthorized access, (ii) unauthorized disclosure,
(iii) misuse, (iv) corruption, and (v) loss, in accordance with the
requirements of the EU Directive 95/46 EC as implemented under each local
law and industry best practices. The parties agree that We may subcontract the
processing of Personal Data to a subcontractor (the "Subcontractor")
provided that We shall remain solely responsible for the acts and omissions of
such Subcontractor. The Data Processor and its Subcontractor may transfer
and/or store Personal Data within the European Economic Area (the "EEA").
The Data Processor may also transfer Personal Data to and store Personal Data
in accordance with U.S. Safe Harbor requirements, provided that the Data
Processor and its subcontractor are and remain Safe Harbor certified. The Data
Processor shall promptly inform the Data Controller and follow up with a
subsequent written notice if it becomes aware of any unauthorized or unlawful
or improper processing, loss of, damage to, or destruction of any Personal Data
(singly or collectively referred to as "Security Breach").
3.3 Our Personnel. We will be
responsible for the performance of Our personnel (including Our employees and
contractors) and their compliance with Our obligations under this Agreement,
except as otherwise specified herein.
Beta Services. From
time to time, We may invite You to try Beta Services at no charge. You may
accept or decline any such trial in Your sole discretion. Beta Services will be
clearly designated as beta, pilot, limited release, developer preview,
non-production, evaluation or by a description of similar import. Beta Services
are for evaluation purposes and not for production use, are not considered
"Services" under this Agreement, are not supported, and may be subject to
additional terms. Unless otherwise stated, any Beta Services trial period will
expire upon the earlier of one year from the trial start date or the date that
a version of the Beta Services becomes generally available. We may discontinue
Beta Services at any time in Our sole discretion and may never make them
generally available. We will have no liability for any harm or damage arising
out of or in connection
a Beta Service.
3.5 Support and Maintenance & Service
Level Agreements. We shall provide to
You technical support in accordance with terms and conditions on the Service
web site by clicking on "Help Center" in the upper right hand side and then
clicking on the "Service Level Agreement" tab. We shall provide to You
software updates, software upgrades and new versions thereto at no charge.
USE OF SERVICES AND CONTENT
4.1 Subscriptions. Unless otherwise
provided in the applicable Order Form, (a) Services and Content are purchased
as subscriptions, (b) subscriptions may be added during a subscription term at
the same pricing as the underlying subscription pricing, prorated (i.e. You
will be invoiced for the highest number of licenses registered during each
calendar month) for the portion of that subscription term remaining at the time
the subscriptions are added. You are solely responsible for adding, activating,
and deactivating Users.
4.2 Usage Limits. Services and
Content are subject to usage limits, including, for example, the quantities
specified in Order Forms. Unless otherwise specified, (a) a quantity in an
Order Form refers to Users, and the Service or Content may not be accessed by
more than that number of Users, (b) a User's password may not be shared with
any other individual, and (c) a User identification may be reassigned to a new
individual replacing one who no longer requires ongoing use of the Service or
Content. If You exceed a contractual usage limit, We may work with You to seek
to reduce Your usage so that it conforms to that limit. If, notwithstanding Our
efforts, You are unable or unwilling to abide by a contractual usage limit, You
will execute an Order Form for additional quantities of the applicable Services
or Content promptly upon Our request, and/or pay any invoice for excess usage
in accordance with Section 6.2 (Invoicing and Payment).
4.3 Your Responsibilities. You will (a) be
responsible for Users' compliance with this Agreement, (b) be responsible for
the accuracy, quality and legality of Your Data and the means by which You
acquired Your Data, (c) use commercially reasonable efforts to prevent
unauthorized access to or use of Services and Content, and notify Us promptly
of any such unauthorized access or use, (d) use Services and Content only in
accordance with the Documentation and applicable laws and government
regulations, and (e) comply with terms of service of Non- Giva Applications
with which You use Services or Content.
4.4 Usage Restrictions. You will not (a)
make any Service or Content available to, or use any Service or Content for the
benefit of, anyone other than You or Users, (b) sell, resell, license, sublicense,
distribute, rent or lease any Service or Content, or include any Service or
Content in a service bureau or outsourcing offering, (c) use a Service to store
or transmit infringing, libelous, or otherwise unlawful or tortious material,
or to store or transmit material in violation of third-party privacy rights,
(d) use a Service to store or transmit Malicious Code, (e) interfere with or
disrupt the integrity or performance of any Service or third-party data
contained therein, (f) attempt to gain unauthorized access to any Service or
Content or its related systems or networks, (g) permit direct or indirect
access to or use of any Service or Content in a way that circumvents a
contractual usage limit, (h) copy a Service or any part, feature, function or
user interface thereof, (i) copy Content except as permitted herein or in an
Order Form or the Documentation, (j) frame or mirror any part of any Service or
Content, other than framing on Your own intranets or otherwise for Your own
internal business purposes or as permitted in the Documentation, (k) access any
Service or Content in order to build a competitive product or service, or (l)
reverse engineer any Service (to the extent such restriction is permitted by
law). You shall always remain in compliance with Our Acceptable Use Policy
(AUP) which has been created to promote the integrity, security, reliability
and privacy of the Our Products and Services, and the most current copy can be
well as this Agreement at any time and any such modification shall
automatically be effective for You.
5.1. Acquisition of Non-Giva Products and Services. We or third
parties may make available (for example, through a Marketplace or otherwise)
third-party products or services, including, for example, Non-Giva applications
and implementation and other consulting services. Any acquisition by You of
such non-Giva products or services, and any exchange of data between You and
any non-Giva provider, is solely between You and the applicable non-Giva
provider. We do not warrant or support Non-Giva Applications or other non-Giva
products or services, whether or not they are designated by Us as "certified"
or otherwise, except as specified in an Order Form.
5.2. Non-Giva Applications and Your Data. If You install or
enable a Non-Giva Application for use with a Service, You grant Us permission
to allow the provider of that Non-Giva Application to access Your Data as
required for the interoperation of that Non-Giva Application with the Service.
We are not responsible for any disclosure, modification or deletion of Your
Data resulting from access by a Non-Giva Application.
Integration with Non-Giva Applications. The Services may contain features designed
to interoperate with Non-Giva Applications. To use such features, You may be
required to obtain access to Non-Giva Applications from their providers, and
may be required to grant Us access to Your account(s) on the Non-Giva
Applications. If the provider of a Non-Giva Application ceases to make the
Non-Giva Application available for interoperation with the corresponding
Service features on reasonable terms, We may cease providing those Service
features without entitling You to any refund, credit, or other compensation.
FEES AND PAYMENT FOR PURCHASED SERVICES
will pay all fees in USA Dollar currency or as specified in Order Forms. Fees
are based on Services and Content purchased and not actual usage. Payment
obligations are non-cancelable and fees paid are non-refundable. License quantities
purchased cannot be decreased during the relevant subscription term nor can
they be decreased for subsequent renewal subscription terms.
6.2. Invoicing and Payment. You will provide Us with valid and updated
credit card information, or with a valid purchase order or alternative document
reasonably acceptable to Us. If You provide credit card information to Us, You
authorize Us to charge such credit card for all Purchased Services listed in
the Order Form for the initial subscription term and any renewal subscription
term(s) as set forth in Section 12.2 (Term of Purchased Subscriptions). Such
charges shall be made in advance, either annually or in accordance with any different
billing frequency stated in the applicable Order Form. If the Order Form
specifies that payment will be by a method other than a credit card, We will
invoice You in advance and otherwise in accordance with the relevant Order
Form. Unless otherwise stated in the Order Form, invoiced charges are due net
30 days from the invoice date. You are responsible for providing complete and
accurate billing and contact information to Us and notifying Us of any changes
to such information. We may, in our sole and absolute discretion, elect not to
send You an invoice in the event that amounts then due are small. We will have
the right to include any skipped amount in any subsequent invoice.
6.3. Overdue Charges. If any invoiced
amount is not received by Us by the due date, then without limiting Our rights
or remedies, (a) those charges may accrue late interest at the rate of 1.5% of
the outstanding balance per each whole or partial calendar month that payments
are late, or the maximum rate permitted by law, whichever is lower, and/or (b)
We may condition future subscription renewals and Order Forms on payment terms
shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4. Suspension of Service and Acceleration.
any amount owing by You under this or any other agreement for Our services is
30 or more days overdue (or 10 or more days overdue in the case of amounts You
have authorized Us to charge to Your credit card), We may, without limiting Our
other rights and remedies, accelerate Your unpaid fee obligations under such
agreements so that all such obligations become immediately due and payable, and
suspend Our services to You until such amounts are paid in full. We will give
You at least 10 days' prior notice that Your account is overdue, in accordance
with Section 13.2 (Manner of Giving Notice), before suspending services to You.
Such suspension will not relieve You from the obligation to pay amounts due
and to pay for the services while You are under such suspension.
6.5. Payment Disputes. We will not
exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of
Service and Acceleration) above if You are disputing the applicable charges
reasonably and in good faith and are cooperating diligently to resolve the
dispute. If You in good faith dispute any charges, You
shall (a) timely pay all undisputed charges, and (b) on or before the Due Date,
give Us written notice of the disputed amount(s) and reason(s) therefore. A
"Disputed" amount is one for which You have given Us a proper written notice
within 60 days following the invoice date, adequately supported by a bona fide
explanation and documentation thereof. We shall review any such notice
reasonably promptly. Any invoiced amount not disputed by You within 60 days following
the invoice date is deemed to be correct and binding on You. We may make
appropriate corrections to issued invoices at any time. You must make any
claim regarding an overpayment within 60 days following the date of
You shall pay all
expenses incurred by Us in exercising any of our rights under this Agreement,
or, with respect to a Payment Default, under applicable law. Such expenses
shall include, without limitation, reasonable attorneys' and experts' fees,
litigation costs and fees of any collection agency retained by Us.
fees do not include any taxes, levies, duties or similar governmental
assessments of any nature, including, for example, value-added, sales, use or
withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes").
You are responsible for paying all Taxes associated with Your purchases
hereunder. In the event that We are required to pay any Taxes on behalf of You
in either current or past subscription terms, You shall promptly reimburse Us
for such amounts upon notification. For clarity, We are solely responsible for
taxes assessable against Us based on Our income, property and employees.
6.7. Future Functionality. You agree that Your purchases are not contingent on
the delivery of any future functionality or features, or dependent on any oral
or written public comments made by Us regarding future functionality or
PROPRIETARY RIGHTS AND LICENSES
7.1. Reservation of Rights. Subject to the
limited rights expressly granted hereunder, We and Our licensors reserve all of
Our/their right, title and interest in and to the Services and Content,
including all of Our/their related intellectual property rights. No rights are
granted to You hereunder other than as expressly set forth herein.
7.2. License by Us to Use Content. We grant to You a
worldwide, limited-term license, under Our applicable intellectual property
rights and licenses, to use Content acquired by You pursuant to Order Forms,
subject to those Order Forms, this Agreement and the Documentation.
7.3. License by You to Host Your Data and
grant Us and Our Affiliates a worldwide, limited- term license to host, copy,
transmit and display Your Data, and any Non-Giva Applications and program code
created by or for You using a Service, as necessary for Us to provide the
Services in accordance with this Agreement. Subject to the limited licenses
granted herein, We acquire no right, title or interest from You or Your
licensors under this Agreement in or to Your Data or any Non-Giva Application
or program code.
7.4. License by You to Use Feedback. You grant to Us
and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to
use and incorporate into the Services any suggestion, enhancement request,
recommendation, correction or other feedback provided by You or Users relating
to the operation of the Services.
Federal Government End Use Provisions. We provide the Services, including
related software and technology, for ultimate federal government end use solely
in accordance with the following: Government technical data and software rights
related to the Services include only those rights customarily provided to the
public as defined in this Agreement. This customary commercial license is
provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212
(Software) and, for Department of Defense transactions, DFAR 252.227-7015
(Technical Data - Commercial Items) and DFAR 227.7202-3 (Rights in Commercial
Computer Software or Computer Software Documentation). If a government agency
has a need for rights not granted under these terms, it must negotiate with Us
to determine if there are acceptable terms for granting those rights, and a
mutually acceptable written addendum specifically granting those rights must be
included in any applicable agreement.
8.1. Definition of Confidential
Information" means all information disclosed by a party ("Disclosing
Party") to the other party ("Receiving Party"), whether orally or in
writing, that is designated as confidential or that reasonably should be
understood to be confidential given the nature of the information and the
circumstances of disclosure. Your Confidential Information includes Your Data;
Our Confidential Information includes the Services and Content; and
Confidential Information of each party includes the terms and conditions of
this Agreement and all Order Forms (including pricing), as well as business and
marketing plans, technology and technical information, product plans and
designs, and business processes disclosed by such party. However, Confidential
Information does not include any information that (i) is or becomes generally
known to the public without breach of any obligation owed to the Disclosing
Party, (ii) was known to the Receiving Party prior to its disclosure by the
Disclosing Party without breach of any obligation owed to the Disclosing Party,
(iii) is received from a third party without breach of any obligation owed to
the Disclosing Party, or (iv) was independently developed by the Receiving
8.2. Protection of Confidential
Receiving Party will use the same degree of care that it uses to protect the
confidentiality of its own confidential information of like kind (but not less
than reasonable care) (i) not to use any Confidential Information of the
Disclosing Party for any purpose outside the scope of this Agreement, and (ii)
except as otherwise authorized by the Disclosing Party in writing, to limit
access to Confidential Information of the Disclosing Party to those of its and
its Affiliates' employees and contractors who need that access for purposes
consistent with this Agreement and who have signed confidentiality agreements
with the Receiving Party containing protections no less stringent than those
herein. Neither party will disclose the terms of this Agreement or any Order
Form to any third party other than its Affiliates, legal counsel and
accountants without the other party's prior written consent, provided that a
party that makes any such disclosure to its Affiliate, legal counsel or accountants
will remain responsible for such Affiliate's, legal counsel's or accountant's
compliance with this Section 8.2.
The Receiving Party may disclose Confidential Information of the Disclosing
Party to the extent compelled by law to do so, provided the Receiving Party
gives the Disclosing Party prior notice of the compelled disclosure (to the
extent legally permitted) and reasonable assistance, at the Disclosing Party's
cost, if the Disclosing Party wishes to contest the disclosure. If the
Receiving Party is compelled by law to disclose the Disclosing Party's
Confidential Information as part of a civil proceeding to which the Disclosing
Party is a party, and the Disclosing Party is not contesting the disclosure,
the Disclosing Party will reimburse the Receiving Party for its reasonable cost
of compiling and providing secure access to that Confidential Information.
REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
9.1. Representations. Each party
represents that it has validly entered into this Agreement and has the legal
power to do so.
9.2. Our Warranties. We warrant that
(a) this Agreement, the Order Forms and the Documentation accurately describe
the applicable administrative, physical, and technical safeguards for
protection of the security, confidentiality and integrity of Your Data, (b) We
will not materially decrease the overall security of the Purchased Services
during a subscription term, (c) the Purchased Services will perform materially
in accordance with the applicable Documentation, (d) subject to Section 5.3
(Integration with Non-Giva Applications), We will not materially decrease the
functionality of the Purchased Services during a subscription term, and (e) the
Purchased Services and Content will not introduce Malicious Code into Your
systems. For any breach of an above warranty, Your exclusive remedies are those
described in Sections 12.3 (Termination) and 12.4 (Refund or Payment upon
AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND,
WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY
DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE
PROVIDED "AS IS," EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS
ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY
ANY THIRD-PARTY HOSTING PROVIDERS.
10.1. Indemnification by Us. We will defend You
against any claim, demand, suit or proceeding made or brought against You by a
third party alleging that the use of a Purchased Service in accordance with
this Agreement infringes or misappropriates such third party's intellectual
property rights (a "Claim Against You"), and will indemnify You from any
damages, attorney fees and costs finally awarded against You as a result of, or
for amounts paid by You under a court-approved settlement of, a Claim Against
You, provided You (a) promptly give Us written notice of the Claim Against You,
(b) give Us sole control of the defense and settlement of the Claim Against You
(except that We may not settle any Claim Against You unless it unconditionally
releases You of all liability), and (c) give Us all reasonable assistance, at
Our expense. If We receive information about an infringement or
misappropriation claim related to a Service, We may in Our discretion and at no
cost to You (i) modify the Service so that it no longer infringes or
misappropriates, without breaching Our warranties under Section 9.2 (Our
Warranties), (ii) obtain a license for Your continued use of that Service in
accordance with this Agreement, or (iii) terminate Your subscriptions for that
Service upon 30 days' written notice and refund You any prepaid fees covering
the remainder of the term of the terminated subscriptions. The above defense
and indemnification obligations do not apply to the extent a Claim Against You
arises from Content, a Non-Giva Application or Your breach of this Agreement.
10.2. Indemnification by You. You will defend Us
against any claim, demand, suit or proceeding made or brought against Us by a
third party alleging that Your Data, or Your use of any Service or Content in
breach of this Agreement, infringes or misappropriates such third party's
intellectual property rights or violates applicable law (a "Claim Against Us"),
and will indemnify Us from any damages, attorney fees and costs finally awarded
against Us as a result of, or for any amounts paid by Us under a court-approved
settlement of, a Claim Against Us, provided We (a) promptly give You written
notice of the Claim Against Us, (b) give You sole control of the defense and
settlement of the Claim Against Us (except that You may not settle any Claim
Against Us unless it unconditionally releases Us of all liability), and (c)
give You all reasonable assistance, at Your expense.
Exclusive Remedy. This
Section 10 states the indemnifying party's sole liability to, and the
indemnified party's exclusive remedy against, the other party for any type of
claim described in this Section 10.
LIMITATION OF LIABILITY
Limitation of Liability. NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE
INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT
PAID BY CUSTOMER HEREUNDER IN THE MONTH PRECEDING THE INCIDENT, PROVIDED THAT
IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED
TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER IN MOST RECENT 6
MONTHS HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN
CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE
LIMITATIONS WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES
AND PAYMENT FOR PURCHASED SERVICES).
11.2. Exclusion of Consequential and Related Damages. IN
NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST
PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR
PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF
THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED
TERM AND TERMINATION
Term of Agreement. This
Agreement commences on the date You first accept it and continues until all
subscriptions hereunder have expired or have been terminated.
12.2. Term of Purchased Subscriptions. The term of each
subscription shall be as specified in the applicable Order Form.
12.3. Termination. A party may
terminate this Agreement for cause (i) upon 30 days written notice to the other
party of a material breach if such breach remains uncured at the expiration of
such period, or (ii) if the other party becomes the subject of a petition in
bankruptcy or any other proceeding relating to insolvency, receivership,
liquidation or assignment for the benefit of creditors. We may terminate this
Agreement and the Order Form with 30 days written notice if products You are
using are discontinued or no longer offered by Us and We will refund to You any
prepaid fees covering the remainder of the term of all Order Forms.
Refund or Payment upon Termination. If this Agreement is terminated by You in
accordance with Section 12.3 (Termination), We will refund You any prepaid fees
covering the remainder of the term of all Order Forms after the effective date
of termination. If this Agreement is terminated by Us in accordance with
Section 12.3, You will pay any unpaid fees covering the remainder of the term
of all Order Forms. In no event will termination relieve You of Your obligation
to pay any fees payable to Us for the period prior to the effective date of termination.
12.5. Your Data Portability and Deletion. Except as provided
in Section 2, upon
request by You made within 30 days after the effective date of termination or
expiration of this Agreement, We will make the Your Data available to You for
export or download as provided in the Documentation. After that 30-day period,
We will have no obligation to maintain or provide Your Data, and will
thereafter delete or destroy all copies of Your Data in Our systems or
otherwise in Our possession or control as provided in the Documentation, unless
Surviving Provisions. The Sections titled "Fees and Payment for
Purchase Services," "Proprietary Rights and Licenses,"
"Confidentiality," "Disclaimers," "Mutual
Indemnification," "Limitation of Liability," "Refund or
Payment upon Termination," "Portability and Deletion of Your
Data," "Who You Are Contracting With, Notices, Governing Law and
Jurisdiction,", "General Provisions" and "Dispute Resolution"
will survive any termination or expiration of this Agreement.
13. WHO YOU ARE CONTRACTING WITH, NOTICES,
GOVERNING LAW AND JURISDICTION
Applicable Governing Law and Jurisdiction. Under this
Agreement, You are contracting with Giva, Inc. This Agreement shall be deemed
to have been made in, and shall be construed pursuant to the laws of, the State
of California and the United States without regard to conflict of laws
provisions thereof. Both parties hereby consent to exclusive jurisdiction in
Santa Clara County, California subject to matters required to be arbitrated
hereunder. The United Nations Convention on Contracts for the
International Sale of Goods is specifically disclaimed in its entirety.
13.2. Manner of Giving Notice. Except as otherwise
specified in this Agreement, all notices, permissions and approvals hereunder
shall be in writing and shall be deemed to have been given upon: (i) personal
delivery, (ii) the second business day after mailing certified mail return
receipt which is required for notices of termination or indemnifiable claim,
(iii) the first business day after sending by email (provided email shall not
be sufficient for notices of termination or an indemnifiable claim).
Billing-related notices to You shall be addressed to the relevant billing
contact designated by You. All other notices to You shall be addressed to the
relevant Services system administrator designated by You.
No Agency. For
the avoidance of doubt, We are entering into this Agreement as principal and
not as agent for any other Giva company. Subject to any permitted Assignment
under Section 14.4, the obligations owed by Us under this Agreement shall be
owed to You solely by Us and the obligations owed by You under this Agreement
shall be owed solely to Us.
Export Compliance. The
Services, Content, other technology We make available, and derivatives thereof
may be subject to export laws and regulations of the United States and other
jurisdictions. Each party represents that it is not named on any U.S.
government denied-party list. You shall not permit Users to access or use any
Service or Content in a U.S.-embargoed country (currently Crimea-Region of
Ukraine, Cuba, Iran, North Korea, or Syria) or in violation of any U.S. export
law or regulation.
have not received or been offered any illegal or improper bribe, kickback,
payment, gift, or thing of value from any of Our employees or agents in connection
with this Agreement. Reasonable gifts and entertainment provided in the
ordinary course of business do not violate the above restriction. If You learn
of any violation of the above restriction, You will use reasonable efforts to
promptly notify Our Legal Department at [email protected]
14.3 Entire Agreement and Order of
Precedence. This Agreement is the entire agreement
between You and Us regarding Your use of Services and Content and supersedes
all prior and contemporaneous agreements, proposals or representations, written
or oral, concerning its subject matter. No modification, amendment, or waiver
of any provision of this Agreement will be effective unless in writing and
signed by the party against whom the modification, amendment or waiver is to be
asserted. The parties agree that any term or condition stated in Your purchase
order or in any other of Your order documentation (excluding Our Order Forms)
is void. In the event of any conflict or inconsistency among the following
documents, the order of precedence shall be: (1) Our Order Form, (2) this
Agreement, and (3) the Documentation.
party may assign any of its rights or obligations hereunder, whether by
operation of law or otherwise, without the other party's prior written consent
(not to be unreasonably withheld); provided, however, either party may assign
this Agreement in its entirety (including all Order Forms), without the other
party's consent to its Affiliate or in connection with a merger, acquisition,
corporate reorganization, or sale of all or substantially all of its assets
("Customer Change of Control Event"). If this Agreement is not assigned in
connection with a Customer Change of Control Event then the surviving entity is
obligated to provide written notice to US of such non assignment within 10
business days after the effective date of the Customer Change of Control
Event. Notwithstanding the foregoing, if a party is acquired by, sells
substantially all of its assets to, or undergoes a change of control in favor
of, a direct competitor of the other party, then such other party may terminate
this Agreement upon written notice. In the event of such a termination, We will
refund to You any prepaid fees covering the remainder of the term of all
subscriptions. Subject to the foregoing, this Agreement will bind and inure to
the benefit of the parties, their respective successors and permitted assigns.
Relationship of the Parties. The parties are independent contractors.
This Agreement does not create a partnership, franchise, joint venture, agency,
fiduciary or employment relationship between the parties.
Third-Party Beneficiaries. Our Content licensors shall have the benefit of Our
rights and protections hereunder with respect to the applicable Content. There
are no other third-party beneficiaries under this Agreement.
failure or delay by either party in exercising any right under this Agreement
will constitute a waiver of that right.
any provision of this Agreement is held by a court of competent jurisdiction to
be contrary to law, the provision will be deemed null and void, and the
remaining provisions of this Agreement will remain in effect.
14.9. Mutual Non-Disparagement. Both parties mutually
agree, covenant and undertake that in perpetuity, neither party shall directly
or indirectly, make, publish, communicate, or engage in any conduct, or make
any statement, written or oral, that is disparaging, derogatory or defamatory,
which may harm the reputation, goodwill, or business of either other party, its
products, services, affiliates, officers, directors, employees or agents, or
encourage, facilitate or support any third party in such conduct or making such
statements. Both parties shall instruct its officers, directors, employees, and
agents to refrain from engaging in such conduct or making such statements. This
mutual non-disparagement section is intended to preserve and protect the
reputation, goodwill, and business relationships of each party, and shall be
binding upon the parties, their respective affiliates, and permitted successors
15. DISPUTE RESOLUTION
15.1 Resolve in Good Faith. The parties shall
attempt in good faith to resolve any dispute arising out of or relating to any
agreements (including, but not limited to this Agreement, Order Form, business
associate agreement) executed by the parties promptly by negotiation between
executives who have authority to settle the dispute. Any party may give to the
other party written notice of any dispute not resolved in the ordinary course
of business. Within 15 days after delivery of the notice, the receiving party
shall submit to the other a written response. The notice and response shall
include with reasonable particularity a) a statement of each party's position
and a summary of arguments supporting that position, and b) the name and title
of the executive who will represent that party and of any other person who will
accompany the executive. Within 15 days after delivery of the notice, the
executives of both parties shall communicate at a mutually acceptable time in
an effort to resolve the dispute.
15.2 Arbitration. If the parties
fail to settle the dispute amicably as provided in Section 15.1, then any
dispute, controversy or claim arising out of or relating to any agreements
executed by the parties, including the formation, interpretation, breach or
termination thereof, including whether the claims asserted can be arbitrated,
will be referred to and finally determined by arbitration in accordance with
the JAMS Streamlined Arbitration Rules and Procedures of JAMS if Your address on
Our Order Form is within the USA and the JAMS International Arbitration Rules
if Your address on Our Order Form is located outside of the USA. The tribunal
will consist of a sole arbitrator. The place of the arbitration will be held in
the JAMS office in San Jose, California. The language to be used in the
arbitral proceedings will be English. Judgment upon the award rendered by the
arbitrator(s) may be entered by any court having jurisdiction thereof. The
parties shall maintain the confidential nature of the arbitration proceeding
and the award. This Agreement and the rights of the parties hereunder shall be
governed and construed in accordance with the laws of the State of California,
USA, exclusive of conflict or choice of law rules. In any arbitration arising
out of or related to any agreements executed by the parties, the arbitrator may
not award any incidental, indirect or consequential damages, including damages
for lost profits.
Excluded Claims. Notwithstanding
Section 15.2, claims for preliminary and final injunctive relief, other
pre-judgment remedies, and claims for breach of intellectual property rights or
disclosure of Confidential Information may be brought in any state or federal
court located in Santa Clara County, California. Any counterclaims or
cross-complaints to non-arbitrated actions must be brought in the same forum in
which the action is adjudicated.
Equitable Relief. The parties agree
that a material breach of this Agreement adversely affecting Our proprietary
rights in the Service would cause irreparable injury to Us for which monetary
damages would not be an adequate remedy, and that We shall be entitled to
equitable relief in addition to any remedies We may have hereunder or at law or
Exclusions. You acknowledge and agree
that the ability of You to access the Service is subject to the availability of
connection services to and within the Internet and to other network functions
within and around the Internet and that the Internet by its nature is not
fault-tolerant. Notwithstanding any other provision of this Agreement, We will
not be responsible or liable for: (a) any alterations of or additions to the
Service by a party other than Us, (b) use of the Service by You in a manner for
which it was not designed, or (c) use of the Service by You in a configuration
not set forth in the documentation for the Service or in conjunction with
systems, products, or components not reasonably anticipated to be used with the