SifData Master Subscription Agreement
THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
BY ACCEPTING THIS AGREEMENT, SUCH AS BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING OR ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” AND “YOUR” WILL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor unless You provide Us with prior written notice that You are a direct competitor and we provide You with Our written consent to access the Services notwithstanding Your status as a direct competitor. 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.
This version of the Agreement was last updated on 20 December 2020. This Agreement is effective between You and Us as of the date of Your acceptance of it.
Table of Contents
“Affiliate” means any entity which 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.
“Applicable Data Protection Law” or “ADPL” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The terms “controller”, “processor”, “data subject”, “personal data”, “processing”, “process”, and “subprocessor” will have the meanings given in the ADPL.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents and programs.
“Non-SifData Applications” means online applications and offline software products that are provided by entities or individuals other than Us and are clearly identified as such, and that interoperate with the Services, including but not limited to those identified as SifData connectors.
“Order Form” means Our form for placing orders for Services that: (i) is entered into between You and Us or any of Our Affiliates from time to time, including any and all agreed addenda and supplements thereto; and (ii) incorporates this Agreement by reference. This Agreement is incorporated into any and all Order Forms.
“Purchased Services” means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
“Representatives” means directors, officers, managers, employees, subcontractors, agents, consultants, advisors, and other authorized representatives.
“Services” means the products and services that are ordered by You under an Order Form and made available by Us online via Salesforce.com. “Services” exclude Non-SifData Applications.
“Users” means individuals who are authorized by You to use the Services. Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business.
“We,” “Us” or “Our” means Conops, Inc., a Delaware corporation d/b/a SifData.
“You” or “Your” means the customer (and its Affiliates) under the applicable Order Form.
“Your Data” means all electronic data or information submitted by You.
2.1. Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Form during the subscription term specified in the Order Form. You agree that Your purchases of the Purchased Services are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
3.1. Our Responsibilities. We shall: (i) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We will endeavor to give at least 8 hours’ notice and, to the extent practicable, to schedule during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday, Pacific Time), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, pandemics, strikes or other labor problems, Internet service provider failures or delays, and denial of service attacks; and (ii) provide the Purchased Services in a manner that complies with applicable laws and government regulations.
3.2. Data Integrity. We do not warrant, and are not responsible for the legality, quality, accuracy, integrity, fitness, reliability, or availability of any third party application, content or service (“Third Party Apps”) that You may purchase or connect to, through or with the Services, or any descriptions or promises related to any of the foregoing. Your agreement to use such Third Party Apps will be solely between You and such third party provider.
3.3. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, completeness, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services 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 the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
3.4. Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space and on the number of calls You are permitted to make against Our application programming interface. Any such limitations are specified in the Order Form. We will endeavor to provide updates if You are approaching or exceeding the limitations outlined in the Order Form.
3.5 Data Access. We will have the right to access and use Your Data for the limited purposes of delivering the Services and responding to service or technical problems.
3.6 Service Interruptions and Support. If the Service is interrupted or not delivered, You should contact Our customer support team at: email@example.com. We will make commercially reasonable efforts to deliver the Services outlined in the Services/Pricing Overview. Customer support is provided by email, and will be initiated within five (5) business days after the date Our customer support team receives Your request for support.
4.1. Fees. You shall pay all fees specified in all Order Forms. Except as otherwise specified in this Agreement or in an Order Form, (i) fees are based on the Services purchased, and not actual usage; (ii) payment obligations are non-cancelable; and (iii) all fees paid are non-refundable. Services subscription fees are based on monthly periods that begin on the subscription term start date specified in the applicable Order Form, and each monthly anniversary of such start date; therefore, fees for Services subscriptions added in the middle of a monthly period will be charged pro-rata for that monthly period and the monthly periods remaining in the subscription term.
4.2. Invoicing and Payment. You shall provide Us with valid and updated credit card information, valid ACH information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You hereby authorize Us to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 10.2 (Term of Purchased Services Subscriptions). Such charges may be made in advance, either monthly, 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 provisions of the Order Form. Unless otherwise stated in the Order Form, invoiced charges are due and payable immediately on receipt of the invoice. You are responsible for providing complete and accurate billing and contact information to Us and promptly notifying Us of any changes to such information.
4.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and (b) We may condition future subscription renewals and Order Forms on payment terms different than those specified in Section 4.2 (Invoicing and Payment).
4.4. Suspension of Service and Acceleration. If any amount owing by You under this Agreement 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, (i) accelerate Your unpaid fee obligations under any or all such agreements so that Your obligations become immediately due and payable; and (ii) suspend Our services to You until such amounts are paid in full. We will typically give You at least 7 days’ prior notice that Your account is overdue before suspending services to You.
4.5. Payment Disputes. We will not exercise Our rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) if we determine that You are disputing the applicable charges reasonably and in good faith, and are cooperating diligently with Us to resolve the dispute.
4.6. Taxes. Unless otherwise stated in an applicable Order Form, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying any and all Taxes associated with Your purchases from Us, including, without limitation, purchases under this Agreement. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, We will invoice the appropriate amount to You, and You will be responsible for paying such invoiced amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
5.1. Reservation of Rights in Services. Subject to the limited rights expressly granted under this Agreement, We specifically reserve all rights, title and interest in and to the Services and all other of Our proprietary and confidential information, including all related intellectual property rights. No rights are granted to You under this Agreement other than those limited rights expressly stated in this Agreement.
5.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted in this Agreement or in an Order Form; (ii) create derivative works based on the Services except as expressly authorized in this Agreement; (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes; (iv) reverse engineer the Services in whole or in part; or (v) access or use the Services to (a) build a competitive product or service, or (b) copy any feature, function, or graphic of or from the Services.
5.3. Your Applications and Code. If You, a third party acting on Your behalf, or a User creates applications or program code using the Services, You authorize Us to host, copy, transmit, display and adapt such applications and program code as necessary or appropriate for Us to provide the Services. Subject to the above, We acquire no right, title or interest from You or Your licensors under this Agreement in or to your applications or program code, including any intellectual property rights therein.
5.4. Your Data. Subject to the rights granted by You under this Agreement, You authorize Us to host, copy, transmit, display and adapt Your Data (to the extent that such Data constitutes Confidential Information as defined in Section 6.1 of this Agreement), as necessary or appropriate for Us to provide the Services. We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein.
5.5. Suggestions. We will have a royalty-free, fully paid-up, worldwide, irrevocable, perpetual, assignable, transferrable, and sub-licensable license to use and incorporate into the Services any and all suggestions, enhancement requests, recommendations, and other feedback provided by You, including Users, relating to the operation of the Services.
6.1. Definition of Confidential Information. As used herein, “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 is known or reasonably should be understood by the Receiving Party to be confidential or proprietary given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and all other of Our confidential and proprietary information; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms, as well as trade secrets, business and marketing plans, technology and technical information, product/service plans and designs, and business processes disclosed by the Disclosing Party to the Receiving Party. However, Confidential Information will not include any information that (i) is or becomes generally known to the public other than as a result of a disclosure by the Receiving Party or any of its Representatives; (ii) was received by the Receiving Party from another person without any limitations on use or disclosure, but only if the Receiving Party had no reason to believe that the other person was prohibited from using or disclosing the information by a contractual or fiduciary obligation; or (iii) was independently developed by the Receiving Party without using any Confidential Information of the Disclosing Party.
6.2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care, and shall: (i) not 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, limit access to Confidential Information of the Disclosing Party in Receiving Party’s possession or control to those of its and its Affiliates’ Representatives who need such access for purposes consistent with this Agreement, who are informed by the Receiving Party of the confidential nature of such Confidential Information, and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those in this Agreement. Neither party may disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent. Each party shall use commercially reasonable efforts to cause the party’s Representatives to comply with the provisions of this Section 6. The Receiving Party shall: (A) promptly notify the Disclosing Party of any breach of this Section 6.2 by the Receiving Party or any of its Representatives; and (B) assist the Disclosing Party in every reasonable way to retrieve any Confidential Information that was used or disclosed by the Receiving Party or a Representative of the Receiving Party in breach of this Section 6.2 and to mitigate the harm caused by such breach.
6.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such 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 such Confidential Information.
6.4 Transfers. You hereby consent to the transfer of, and access to, personal data of EEA data subjects by Us and Our subprocessors to (or from) areas outside of the European Economic Area (“EEA”), provided that We have taken measures to verify that such transfer/access is in compliance with ADPL and the EC Standard Contractual Clauses (controller to processor), which are hereby incorporated into this Agreement by this reference.
6.5 Rights of EEA Data Subjects. We will provide reasonable and timely assistance to You to respond to any request from an EEA data subject for the correction, updating, or deletion of the EEA data subject’s personal data. We will, subject to applicable legal requirements, follow only Your instructions in this regard. You hereby instruct Us to delete all personal data, to the extent technically feasible, that has been deleted at the data subject’s request.
6.6 Data Impact Assessments. If We believe that Our processing of any EEA personal data is likely to result in a high risk to the data protection rights and freedoms of EEA data subjects, We will promptly inform You and provide You with such reasonable and timely assistance necessary to conduct a data protection impact assessment and, if necessary, consult with a relevant data protection authority.
6.7 Equitable Relief. The parties acknowledge that the remedies at law for any breach of this Section 6 will, by their nature, be inadequate. Accordingly, each party may obtain injunctive relief or other equitable relief to restrain a breach or threatened breach of any of the terms of this Section 6, or to specifically enforce the terms of this Section 6, without proving that any monetary damages have been sustained.
7.1. Our Warranties. We warrant that (i) We have validly entered into this Agreement and have the legal power to do so; (ii) the Services will perform materially in accordance with applicable laws in existence as of the date of this Agreement; and (iii) We will not transmit Malicious Code to You, provided it is not a breach of this subpart (iii) if You or a User uploads a file containing Malicious Code into the Services and that file containing Malicious Code is subsequently downloaded. For any breach by Us of a warranty above, Your exclusive remedy will be as provided in Section 10.3 (Termination for Cause) and Section 10.4 (Refund or Payment on Termination) below.
7.2. Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.
7.3. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY EXCLUDES AND DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES THAT MAY HAVE ARISEN OR MAY ARISE FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
7.4. Non-GA Services. From time to time We may invite You to try, at no charge, Our services that are not generally available to Our customers (“Non-GA Services“). You may accept or decline any such trial in Your sole discretion. Non-GA Services are clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SERVICES DO NOT CONSTITUTE “SERVICES” UNDER THIS AGREEMENT, AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND. We may discontinue Non-GA Services at any time in Our sole discretion, and may decide to never make them generally available. Notwithstanding any of the foregoing, and without limitation, Non-GA Services will constitute “Services” for purposes of the provisions of Section 5 of this Agreement, We reserve any and all of Our rights in and with respect to Non-GA Services, and nothing herein constitutes a waiver by Us of any of Our rights in the Non-GA Services.
8.1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Services as permitted under this Agreement infringes or misappropriates the intellectual property rights of a third party (a “Claim Against You”), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that 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 (provided that We may not settle any Claim Against You without Your prior written consent unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. In the event of a Claim Against You, or if We reasonably believe the Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties under “Our Warranties” above, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your User subscriptions for such Services on 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination. Notwithstanding any of the foregoing, or any other provision of this Agreement, We have no obligation to defend or indemnify You to the extent any Claim Against You results from or arises out of: (1) Your combination of any of the Services with any service or product not provided by Us, where the Claim Against You or the infringement or misappropriation would not have occurred but for the combination; or (2) Your modification of the Services where the Claim Against You or the infringement or misappropriation would not have occurred but for the modification.
8.2. Indemnification by You. You shall 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 the Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us”), and shall indemnify Us for 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 that 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 (provided that You may not settle any Claim Against Us without Our prior written consent unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.
8.3. Exclusive Remedy. This Section 8 (Mutual Indemnification) 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 8.
9.1. Limitation of Liability; Exclusion of Consequential and Related Damages. NEITHER PARTY’S MONETARY LIABILITY WITH RESPECT TO ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL EXCEED THE LESSER OF $500,000 OR THE AMOUNT ACTUALLY PAID BY YOU TO US UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT THAT GAVE RISE TO THE CLAIM OR CAUSE OF ACTION; PROVIDED FURTHER THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE MONETARY LIABILITY TO THE OTHER PARTY FOR ANY REASON AND FOR ANY AND ALL CAUSES OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ITS SUBJECT MATTER EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU TO US UNDER THIS AGREEMENT. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, FOR ANY LOST PROFITS OR LOST REVENUES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2. Limitation of Actions and Suits. Neither party may commence any action, suit, or proceeding against the other party, whether in contract, tort, or otherwise, unless the action, suit, or proceeding is commenced within one (1) year after the cause of action accrues.
9.3. exclusions. THE FOREGOING LIMITATIONS AND PROVISIONS IN SECTIONS 9.1 AND 9.2 WILL NOT APPLY TO ANY BREACH BY YOU OF YOUR PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT FOR PURCHASED SERVICES) OR ANY BREACH OF SECTION 6 (CONFIDENTIALITY), AND WILL NOT APPLY TO LIMIT A PARTY’S OBLIGATIONS UNDER SECTION 8 (MUTUAL INDEMNIFICATION).
10.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all Services subscriptions granted in accordance with this Agreement have expired or been terminated, or this Agreement has otherwise been terminated in accordance with its terms. The termination of this Agreement, regardless of how it occurs, will not relieve a party of obligations that have accrued before the termination. All provisions of this Agreement that would reasonably be expected to survive its termination will do so, including, without limitation, the provisions of Sections 5, 6, 7, 8, and 9.
10.2. Term of Purchased Services Subscriptions. Services subscriptions purchased by You commence on the Service term start date specified in the applicable Order Form and continue for the subscription term specified in the Order Form. Except as may otherwise be specified in the applicable Order Form, all Services subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 10 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term will be the same as that during the prior term unless We have given You written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase will be effective on renewal and thereafter during that renewal term. Any such pricing increase will not exceed an amount equal to 10% of the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as being promotional or one-time pricing.
10.3. Termination for Cause. A party may terminate this Agreement, including the provision of the Services, for cause: (i) on 30 days written notice to the other party of a material breach of this Agreement by the other party if such breach remains uncured at the expiration of such 30 day 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. Further, We may terminate this Agreement, including the provision of the Services, on notice to You if: (A) We determine that You or Your Representatives have acted in bad faith, engaged in dishonesty or willful misconduct in connection with the Services or Our business relationship with You; or (B) You fail to pay any amount We have determined is owed by You to Us or any of Our Affiliates within ten (10) days after the due date.
10.4. Refund or Payment on Termination. On any termination of this Agreement for cause by You, and subject to Our set-off of any other amounts or damages owed by You to Us, We will refund to You any subscription fees that You prepaid to Us for the remainder of the term after the effective date of the termination. On any termination for cause by Us, You shall immediately pay to Us an amount equal to the entire remaining contract sum under all Order Forms that covers the remainder of the term of all Order Forms after the effective date of the termination. In no event will any termination by either party for any reason relieve You of Your obligation to pay any and all fees payable to Us for the period prior to the effective date of the termination.
10.5. Return of Your Data. On request by You made within 30 days after the effective date of termination of a Purchased Services subscription, and conditioned on You first paying all remaining amounts due to Us under this Agreement, We will make available to You for download a file of Your Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, We will have no obligation to maintain or provide any of Your Data and may thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
11.1. Our Address. Our mailing address is as set forth in the applicable Order Form. We may designate a different mailing address from time to time on notice to You.
11.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals under this Agreement must be in writing and will be deemed to have been given: (i) on personal delivery, (ii) at the end of the third business day after the date of deposit, if deposited in the United States mail, postage pre-paid, certified, return receipt requested, to the party’s mailing address under this Agreement, or to such other address as the party may designate by notice to the other party, or (iii) on the first business day after sending by email to an email address provided by the party (provided email will not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant Services system administrator designated by You. If You do not provide a valid address or make a designation, We may send any notice to such address or person as We determine constitutes a valid address or contact person for You.
11.3. Governing Law; Venue; Remedies. This Agreement is governed by the laws of the State of Delaware, the state in which this Agreement is deemed to have been executed and delivered, without giving effect to any conflict-of-law principle that would result in the laws of any other jurisdiction governing this Agreement. Any action, suit, or proceeding arising out of the subject matter of this Agreement will be litigated in courts located in New Castle County, Delaware. Each party consents and submits to the jurisdiction of any local, state, or federal court located in New Castle County, Delaware. Except as otherwise specified in this Agreement, including, without limitation, in Section 9 above, the parties will have all remedies available to them at law or in equity. All available remedies are cumulative and may be exercised singularly or concurrently.
11.4. Waiver of Jury Trial; Attorneys. The parties each hereby irrevocably and unconditionally waive trial by jury in any legal action or proceeding relating in any way to this Agreement or its subject matter, including any counterclaim made in such action or proceeding, and agree that any such action or proceeding will be decided solely by a judge. Each party (i) hereby acknowledges that it has consulted with the party’s own legal counsel in the negotiation, execution and delivery of this Agreement, or has knowingly waived the party’s right to do so; and (ii) represents and warrants that the party has reviewed and understands this Agreement, including in particular the jury-trial waiver above.
12.1. Export Compliance. The Services and 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 Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
12.2. Anti-Corruption. You represent, warrant, and agree that You 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 agree to immediately notify Us (legal@SifData.com).
12.3. Relationship of the Parties. We will be an independent contractor of You. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.4. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.5. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. No waiver will be binding on a party unless it is in writing and signed by the party making the waiver. A party’s waiver of a breach of a provision of this Agreement will not be a waiver of any other provision or a waiver of a subsequent breach of the same provision.
12.6. Severability. If a provision of this Agreement is determined to be unenforceable in any respect, the enforceability of the provision in any other respect and of the remaining provisions of this Agreement will not be impaired.
12.7. Costs and Expenses. If You breach Your payment obligations under Section 4 of this Agreement (Fees and Payment for Purchased Services), and We do not institute any arbitration, action, suit, or proceeding, You shall pay to Us on demand all reasonable costs and expenses, including but not limited to attorney’s fees and collection fees, incurred by Us in attempting to collect the past due amount owed by You to Us under Section 4 (Fees and Payment for Purchased Services).
12.8. Binding Effect. This Agreement is and will be binding on the parties and their respective heirs, personal representatives, successors, and assigns, and will inure to their benefit.
12.9 Further Assurances. The parties will sign other documents and take other actions reasonably necessary to further effect and evidence this Agreement.
12.10. Construction. The language in all parts of this Agreement will in all cases be construed according to its fair meaning and not strictly for or against any of the parties to this Agreement. Without limitation, there will be no presumption against any party on the ground that such party was responsible for drafting this Agreement or any part of it. For purposes of this Agreement, the term “person” means and includes any natural person, corporation, limited liability company, partnership, joint venture, firm, association, trust, unincorporated organization, government or governmental agency or political subdivision, and any other type of entity or organization. All pronouns contained herein and any variations thereof will be deemed to refer to the masculine, feminine, or neutral, singular or plural, as the identity of the parties may require. The singular includes the plural and the plural includes the singular. The words “include,” “includes,” and “including” are not limiting. The headings contained in this Agreement are for convenience of reference only and do not define, limit, or enlarge the scope or meaning of the provisions of this Agreement.
12.11. Entire Agreement; Amendment. This Agreement, including all exhibits and addenda to this Agreement, all of which are hereby incorporated into this Agreement by this reference, and the applicable Order Form(s), contain the entire agreement and understanding of the parties regarding their subject matter, and supersede all prior and contemporaneous negotiations, proposals, representations, and agreements, whether written or oral, between the parties with respect to their subject matter. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or the applicable Order Form(s), the terms of such exhibit, addendum or Order Form(s) will prevail. This Agreement may be amended only by a written agreement signed by each party. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions are rejected by Us and are and will be null and void.