SUBSCRIPTION SERVICES AGREEMENT
FUSE Subscription Services (FSS)
This Subscription Agreement (this “Agreement”) is by and between NotchPoint, LLC d.b.a. FUSE Search, a Virginia, United States of America corporation, (“NotchPoint”) and “Customer”. This Agreement governs NotchPoint’s provision of and Customer’s access to and use of the Subscription Service.
DEFINITIONS. The following terms shall have the following meanings. Other capitalized terms used in the Agreement are defined where they are used in the Agreement.
"Aggregate Information" means any information or data included in or derived from Customer Materials or from Customer's interaction with the Subscription Services, which describes categories of information or of groups of individuals and (i) is not specific to a person, (ii) does not refer to or identify any specific person, and (iii) cannot be used, alone or in conjunction with other information, to identify any specific person.
“Agreement” means collectively, this Subscription Agreement, all electronic or tangible contract terms and conditions, each Statement of Work and other documents incorporated or referenced therein.
“Customer” means the Customer identified above and such Customer’s employees and other users.
“Customer Material” means any of Customer information, data, or other content loaded into the FSS data repository.
“NotchPoint” means NotchPoint and its designees.
“FSS Technology” means the hosted environment, software, architecture, processes, interfaces, and components that are part of the FSS platform, and all related Documentation made available by NotchPoint through the Subscription Service, including without limitation, all versions, modifications, updates, upgrades and releases thereof, all associated media and all evaluation and benchmark test results and output, regardless of form or media.
“Documentation” means all technical specifications, user guides, training manuals and other explanatory documentation or materials made available to Customer in connection with the Subscription Services.
“Force Majeure” means events or circumstances beyond NotchPoint’s reasonable control, any of which may delay or prevent NotchPoint’s performance under the Agreement, such as, without limitation, natural disasters, government restrictions, war, insurrection, labor strife, or failure of: (a) the Internet; (b) suppliers; (c) subcontractors; (d) carriers or (e) electrical supply.
“Statement of Work (SOW)” means NotchPoint’s standard document through which NotchPoint describes the Subscription Service, the subscription fees and any implementation and professional services therefore and such additional specifications applicable to Customer.
“Subscription Service” means the FSS Technology provided to Customer through web search widget(s) configured for or made available to Customer and users on Customer’s desktop and/or mobile website.
LICENSE GRANT. This Agreement grants Customer limited rights to use the FSS Technology solely through the Subscription Service in compliance with this Agreement. For the Term set forth in the SOW, NotchPoint grants Customer a limited license to permit Customer and Customer’s users to access and use the FSS Technology on a non-exclusive basis solely for Customer’s business purposes in compliance with the Documentation and this Agreement. The Subscription Service Term shall automatically renew for renewal terms of the same duration unless Customer or NotchPoint gives the other written notice at least thirty (30) days prior to the expiration of the then current Term, provided, however, that the then current Term shall be extended solely with respect to any SOWs which remain in effect as of the scheduled expiration date and continuing through the expiration or sooner termination of such SOW.
THE SUBSCRIPTION SERVICE.
Access. Provided Customer is in compliance with this Agreement, NotchPoint will make the FSS Technology available to Customer through the Subscription Service as set forth in this Agreement. During the Term, NotchPoint will maintain, support, and upgrade the FSS Technology on NotchPoint data center servers in the usual course of NotchPoint’s business operations. All access rights will be via the worldwide web using a browser and Internet connection. NotchPoint will use commercially reasonable efforts to make the Subscription Service available (subject to routine maintenance periods) to Customer users twenty-four (24) hours a day, seven (7) days a week.
Support. The Subscription Service includes Support as detailed in SOW.
Customer Responsibilities. Customer’s use of the Subscription Service is subject to the following restrictions and responsibilities: (a) Customer is responsible for the cost, operation, availability of and compliance of Customer’s employees and other users with this Agreement; (b) Customer’s use of the Subscription Service is solely for Customer’s personnel and users purposes; (c) Customer may not license, sublicense, transfer or assign all or any part of Customer’s rights under this Agreement without NotchPoint’s prior consent; (d) Customer may not sell, resell, rent, lease, lend, distribute, disseminate, market or create a lien or security interest in the Subscription Service without NotchPoint’s consent; (e) Customer may not download, print, copy, circulate, publish, reproduce, or otherwise commercially exploit or make the Subscription Service available to anyone other than as expressly permitted by this Agreement. Customer shall not disassemble, reverse engineer, or decompile the FSS Technology or any portion thereof, access it to build a competitive product or service, build a product or service using similar ideas, features, functions or graphics, or copy NotchPoint data, format, functionality, features, graphics and/or any ideas within or derivative of the Subscription Service. If authentication is necessary, Customer is solely responsible for authenticating and administrating user identifications and passwords for any person whom Customer authorizes to use the Subscription Service and for all activities occurring through Customer’s account. Customer represents and warrants that Customer is the sole and exclusive owner of or has the right to share, provide access to and permit use of Customer Material. Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, propriety (including rights of privacy), storage and backup of all of Customer Material that is made available using the Subscription Service: (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Subscription Service administrative functionality and notify NotchPoint promptly of any such unauthorized use; and (c) comply and ensure that Customer’s employees and users comply with the terms of this Agreement, any additional NotchPoint terms of use, including without limitation protection of unique user identifiers, passwords and other security features as well as U.S. and international local, state, federal and foreign laws, rules and regulations in connection with use of the Subscription service.
Compliance with Laws. Customer represents and warrants that it is in compliance with and will comply with all applicable privacy and data protection laws and regulations with respect to any Customer Material that is made available to the Subscription Services and its performance of its obligations under this Agreement. Customer will indemnify, defend, and hold NotchPoint harmless from any claims losses and causes of action arising out of or related to breach of this by Customer or its employees, other users, or anyone accessing the Subscription Service.
Suspension by NotchPoint. While NotchPoint is not obligated to regularly monitor the nature or content of Customer Material and/or anything Customer makes available to the Subscription Service, NotchPoint may remove any illegal or inappropriate material or data, including without limitation, Customer Material, at any time without liability to Customer, Customer users or any third party, and/or suspend Customer’s use of the Subscription Service. If Customer’s account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, NotchPoint may suspend Customer’s access to and use of the Subscription Service without liability to Customer or Customer users until all amounts due to NotchPoint are paid in full. Reconnection fees may apply.
Customer Material. Customer Material made available to the Subscription Service is owned solely and exclusively by Customer. NotchPoint acquires no right, title or interest to Customer Material except as set forth in this Section 3.7. Customer hereby grants to NotchPoint a nonexclusive royalty-free, perpetual right and license to use Customer Material as necessary in connection with Customer’s use of the Subscription Service, for system administration of Customer's account, billing and collection as to Customer's account, to contact Customer to provide technical support or other services and for any lawful purpose such as, without limitation, for analyzing trends, patterns and research, performance and statistical information NotchPoint may track and use Aggregate Information about use of the Subscription Services, including, but not limited to usage patterns and other aggregate data for statistical analysis, internal product analysis and development, de-bugging, system maintenance purposes, and for the performance of its obligations under this Agreement. Notwithstanding anything to the contrary in this Agreement, NotchPoint will not be prohibited or enjoined at any time by Customer from utilizing any skills or knowledge of a general nature (other than specific items of Customer Materials) acquired during the course of providing the Subscription Service, including, without limitation, information publicly known or available or that could reasonably be acquired in similar work performed for another Customer of NotchPoint.
Reservation of Rights/Ownership. NotchPoint RESERVES ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN. The FSS Technology is licensed, not sold. The FSS Technology is protected by all United States and international copyright laws and treaties, as well as all patent and other intellectual property laws and treaties. All title, copyrights, patent, and other proprietary rights, including trade secrets, in and to all copies of the FSS Technology are owned solely and exclusively by NotchPoint and its FSS Technology partner. All advice, recommendations, opinions and/or modifications provided to Customer are incorporated into the FSS Technology as is all advice, recommendations, opinions and/or ideas for existing or future functionality or products Customer provides to NotchPoint from time to time.
Evaluation Term. If the Subscription Service is licensed on an evaluation trial basis, the term of such license is thirty (30) days from installation unless a longer period is specified in the applicable SOW, after which time the evaluation license ceases. Evaluation use of the Subscription Service is intended solely for Customer to determine the compatibility of the Subscription Service with Customer’s business needs. NotchPoint will setup the Subscription Service for evaluation in a non-production test environment. With respect to any evaluation use of the Subscription Service, NotchPoint has no obligation to provide support, maintenance, upgrades, modifications or new releases during the evaluation period and the service level commitments provided for elsewhere in this Agreement shall not apply. CUSTOMER AGREES THAT THE SUBSCRIPTION SERVICE TO THE EXTENT PROVIDED FOR EVALUATION PURPOSES IS BEING PROVIDED “AS-IS” FOR TEST AND EVALUATION PURPOSES ONLY WITHOUT WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL NOTCHPOINT OR ANY THIRD-PARTY PROVIDER BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR DAMAGES, DIRECT OR INDIRECT, OF ANY NATURE, OR EXPENSES INCURRED BY CUSTOMER IN CONNECTION WITH THE EVALUATION OF THE SUBSCRIPTION SERVICE. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY SHALL BE TO TERMINATE THE EVALUATION LICENSE BY WRITTEN NOTICE TO NOTCHPOINT.
FEES/INVOICING/PAYMENT.
General. Customer agrees to pay NotchPoint all fees and reimburse all expenses set forth in the initial SOW and all SOWs subsequently entered into by the parties. All fees and all expenses are exclusive of all taxes. Customer is solely responsible for the payment of all taxes due (other than taxes assessed on NotchPoint’s income). Fees are due in advance within thirty (30) days of the invoice date. Any invoiced amounts not paid by the due date shall accrue interest at the lesser of 1.5% of the outstanding balance per month or the maximum rate permitted by law from the due date until paid. Customer shall also pay all sums expended (including reasonable legal fees) in collection of overdue payments. NotchPoint retains the right to impose the interest charges set forth above on any invoice which is delinquent regardless of whether or not past due invoices have been sent without such interest charges included. If Customer is delinquent in its payments, NotchPoint may, upon written notice to Customer, modify the payment terms to require full payment before the provision of all services or require other assurances to secure Customer’s payment obligations under this Agreement. If Customer is more than 30 days delinquent in payment for services, NotchPoint has the additional right to suspend service.
Payment Dispute. If Customer in good faith disputes a portion of any invoice, Customer is still required to make payment in full but may provide NotchPoint with a detailed written explanation of such within 30 days of receiving an invoice containing a disputed charge. NotchPoint will work to reconcile any submitted disputes but NotchPoint’s determination shall be final. If Customer does not dispute an invoice within 30 days of receipt of such invoice, Customer forfeits any further right to dispute such invoice.
TERMINATION.
For Cause. Customer or NotchPoint may terminate this Agreement upon thirty (30) days’ prior written notice given to the breaching party in the event: (a) a party materially breaches this Agreement if such breach is not cured within the thirty (30) day notice period; or (b) a party is unable to meet its obligations when due, provided that this notice and cure period shall be reduced to five (5) days if relating to a monetary default; or (c) a 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. In addition, upon the occurrence of any of the preceding by Customer, NotchPoint shall have the right to suspend Customer’s and users access to the Subscription Service until such time as the breach is cured and, in connection with items (b) or (c), only at such time as Customer provides NotchPoint with adequate assurance of continued performance by Customer under this Agreement. In the event Customer breaches this Agreement, NotchPoint’s right to suspend or terminate shall not relieve Customer of Customer’s obligation to pay any accrued and unpaid fees and expenses due. In the event Customer terminates this Agreement for cause and NotchPoint does not dispute the basis for termination, NotchPoint shall prorate and refund to Customer any fees paid in advance but unused for the Subscription Service. This refund shall be Customer’s sole and exclusive remedy for NotchPoint’s breach of this Agreement.
Effect of Suspension/Termination. Upon suspension or termination of this Agreement, Customer shall have no further right or license to and shall promptly stop using the FSS Technology and the associated web search widget(s) provided with the Subscription Service. NotchPoint may take such action as is reasonably necessary at any time to suspend/block such access without liability to Customer or any user. After termination, NotchPoint shall have no obligation to maintain or provide Customer Material and may thereafter, unless legally prohibited, delete Customer Material without liability or recourse. The parties’ rights and obligations set forth in Sections 3.7, and 4 through and including 10 shall survive and termination or expiration of this Agreement.
CONFIDENTIALITY/SECURITY.
Confidentiality. The FSS Technology and all materials and information relating thereto (including, without limitation all Documentation), and each SOW are proprietary and confidential to and constitute trade secrets of NotchPoint and, as applicable, its FSS Technology partners (collectively, “NotchPoint Confidential Information”). Customer must maintain the secrecy of NotchPoint Confidential Information, disclosing it only to such of Customer employees and consultants who need to know to facilitate Customer’s authorized use of the Subscription Service administrative functionality, provided each such employee or consultant is subject to confidentiality obligations acceptable to NotchPoint. Provided Customer information is identified as confidential on disclosure, NotchPoint agrees to maintain the secrecy of Customer non-public, proprietary information, including search patterns and search history, disclosing it only to such of NotchPoint personnel (including FSS Technology partners) who need to know to provide the Subscription Service, technical support and other services. The foregoing notwithstanding, NotchPoint may comply with any judicial or other governmental order requiring disclosure of Customer confidential information, including Customer Material, provided, to the extent possible, NotchPoint give Customer prior notice.
Security. If applicable, NotchPoint shall issue to Customer, or shall authorize a Customer administrator to issue, an administrative account for Customer’s authorized users of the Subscription Services administrative functionality. Customer and its users are responsible for maintaining the confidentiality of all administrative account and password information and for ensuring that each administrative account is used only by the authorized user. Customer is entirely responsible for any and all activities that occur under Customer's account and all charges incurred from use of the Subscription Services administrative functionality accessed with the administrative account. Customer agrees to immediately notify NotchPoint of any unauthorized use of the administrative account or any other breach of security known to Customer. NotchPoint shall have no liability for any loss or damage arising from Customer's failure to comply with these requirements. NotchPoint agrees to exercise reasonable efforts to remedy security breaches. Customer acknowledges that, notwithstanding such security precautions, use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Subscription Services administrative functionality and Customer Material. Accordingly, NotchPoint cannot and does not guarantee the privacy, security, integrity or authenticity of any information so transmitted over or stored in any system connected to the Internet or that any such security precautions will be adequate or sufficient.
LIMITED WARRANTY/LIABILITY LIMITS.
So long as Customer is in compliance with the terms and conditions of this Agreement and Customer is current in the payment of all fees and costs, NotchPoint warrant that: (a) when used in strict accordance with this Agreement and the Documentation, the Subscription Service will operate substantially in conformity with the Documentation during the Term (the “Limited Warranty”). Customer’s exclusive remedy and NotchPoint entire liability for any claim under this Limited Warranty that you assert within the Limited Warranty period shall be limited, in NotchPoint sole discretion, to (i) repair, correction or a work-around for the Subscription Service pursuant to NotchPoint then current technical support services policy; or (ii) return of a pro rata amount of fees received by NotchPoint for that portion of the Subscription Service that does not meet this Limited Warranty during the Subscription Services Term in which the failure occurred.
IN ANY CASE, REGARDLESS OF ANY DAMAGES CUSTOMER MAY INCUR OF ANY NATURE OR SORT, NOTCHPOINT’S ENTIRE AND CUMULATIVE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY SHALL BE LIMITED TO THE FEES RECEIVED BY NOTCHPOINT FROM CUSTOMER FOR THE SUBSCRIPTION SERVICE DURING THE TERM IN WHICH THE FAILURE OCCURRED NOT TO EXCEED ONE (1) YEAR’S FEES. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. NO CAUSE OF ACTION WHICH ACCRUED MORE THAN ONE (1) YEAR PRIOR TO THE FILING OF A SUIT ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED AGAINST NOTCHPOINT.DISCLAIMERS.
NOTCHPOINT AND ITS FSS TECHNOLOGY PARTNER DO NOT WARRANT THAT THE USE OF THE SUBSCRIPTION SERVICE WILL MEET CUSTOMER’S AND ITS USERS’ NEEDS OR EXPECTATIONS, THAT THE USE OF THE SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED, OR THAT ALL NONCONFORMITIES IN THE SUBSCRIPTION SERVICE CAN OR WILL BE CORRECTED. INFORMATION DERIVED FROM CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE SHOULD NOT BE USED AS THE ONLY BASIS FOR DECISIONS WITH RESPECT TO CUSTOMER’S BUSINESS OPERATIONS AND NOTCHPOINT DISCLAIMS ANY LIABILITY ARISING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTCHPOINT AND ITS FSS TECHNOLOGY PARTNER DISCLAIM ALL WARRANTIES, LIABILITIES, DUTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR OR ANY PURPOSE, RELIABILITY, ACCURACY, CONFORMITY WITH LAWS OR REGULATIONS, LACK OF VIRUSES OR MALICIOUS CODE, NEGLIGENCE, TITLE AND NON-INFRINGEMENT WITH REGARD TO THE SUBSCRIPTION SERVICE. CUSTOMER ACKNOWLEDGES THAT THE INTERNET IS NOT SECURE AND THAT CUSTOMER’S USE OF THE SUBSCRIPTION SERVICE MAY CREATE SECURITY AND OTHER RISKS.
OTHER THAN AS SET FORTH IN SECTION 7 ENTITLED “LIMITED WARRANTY/LIABILITY LIMITS,” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NOTCHPOINT AND ITS FSS TECHNOLOGY PARTNER FOR ANY DAMAGES WHATSOEVER, BE THEY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION DAMAGES FOR FALURE TO MEET ANY DUTY OF GOOD FAITH OR REASONABLE CARE, LOSS OF PROFITS, BUSINESS INTERRUPTION, PERSONAL INJURY OR PROPERTY DAMAGE, LOSS OF INFORMATION OF ANY SORT, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SUBSCRIPTION SERVICE, OR THE PROVISION OF OR FAILURE TO PROVIDE THE SUBSCRIPTION SERVICE, EVEN IN THE EVENT OF NOTCHPOINT’S FAULT, NEGLIGENCE OR MISREPRESENTATION, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.INDEMNIFICATION.
Of Customer by NotchPoint for Infringement. Subject to the provisions of this Section 9, provided Customer is in compliance with the terms and conditions of this Agreement, including the terms of all Third Party Provider agreements and terms of use and Customer has paid all fees and costs due, NotchPoint agrees to defend, indemnify, and hold Customer harmless from and against any damage, loss, liability, cost or expense, including reasonable attorneys' fees Customer may incur to the extent they result from any claims, actions or demands by a third party alleging that the Subscription Service, when used in compliance with the Documentation and this Agreement, infringes a registered U.S. patent or registered U.S. copyright. Customer must: (a) promptly notify NotchPoint in writing of any claim: (b) allow NotchPoint to have sole control of the defense of any actions and negotiations related to the defense or settlement of any claim; and (c) cooperate with NotchPoint fully in the defense of the claim. NotchPoint will pay all costs and damages finally awarded against Customert but will not be responsible for any costs, expenses, settlements, or compromise incurred or made by Customer without NotchPoint prior written consent.
If NotchPoint believes that any part or component of the FSS Technology is or will become the subject of an infringement claim, or in the event that Customer use of the FSS Technology is or may be enjoined, at NotchPoint own expense and in NotchPoint sole discretion, NotchPoint may either (i) obtain the right for Customer to continue using the FSS Technology or (ii) modify the FSS Technology to make it non-infringing while maintaining substantially similar functionality. If neither alternative is commercially practical in NotchPoint sole discretion, then NotchPoint may terminate this Agreement as to the infringing portion of the FSS Technology. The provisions of this Section notwithstanding, NotchPoint shall have no indemnification obligation or liability for any infringement claim if Customer acts or omissions contributed to or caused the claim. NotchPoint also shall not be obligated to indemnify Customer for any infringement claim based in whole or in part in connection with Customer Material or on Customer’s (u) use of data, if applicable; (v) use of the FSS Technology in combination with any items not supplied by NotchPoint or its FSS Technology partner; (w) material alteration of the FSS Technology or data by anyone other than NotchPoint; or (x) continuation of allegedly infringing activity after Customer have been notified of the possible infringement. THE FOREGOING STATES NOTCHPOINT’S ENTIRE OBLIGATION/LIABILITY AND CUSTOMER’S SOLE REMEDY WITH RESPECT TO INFRINGEMENT OR ALLEGATION OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.Of NotchPoint by Customer. Customer agrees to defend, indemnify and hold NotchPoint harmless against any damage, loss, liability, cost or expense, including reasonable attorneys’ fees, NotchPoint may incur in connection with any claims, actions or demands made or brought against NotchPoint as a result of Customer activities in Section 9.1 (u)-(x) or alleging that Customer Material or use of the Subscription Service (other than that for which Customer is entitled to indemnification as set forth in Section 9.1 above) infringes the intellectual property or other rights of, has otherwise harmed, a third party, NotchPoint agrees to: (a) promptly give written notice of the claim to Customer; (b) give Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim affecting the Subscription Service unless NotchPoint and its FSS Technology partner are unconditionally released of all liability); and (c) provide to Customer, at Customer’s cost, all reasonable assistance.
MISCELLANEOUS.
Choice of Laws; Forum Selection. This Agreement is governed by the laws of the State of Virginia without giving effect to principles of conflict of laws and the applicable state or United States District Court Fairfax County, Virginia shall have exclusive jurisdiction.
Waiver of Jury Trial. THE PARTIES HERETO WAIVE ALL RIGHT TO A JURY TRIAL AND AGREE THAT ANY DISPUTE BETWEEN THEM SHALL BE HEARD BY A JUDGE ACTING AS THE TRIER OF FACT.
Successors and Assigns. This Agreement may not be assigned or otherwise transferred (include by merger, sale of assets or operation of law) by Customer without the prior written consent of NotchPoint and any such assignment or transfer shall be deemed void and of no effect. Notwithstanding the foregoing, this Agreement shall be binding upon and shall inure to the benefit of each party and its successors and assigns.
Remedies. The provisions of this Section notwithstanding, Customer agrees that NotchPoint may seek equitable relief, including preliminary and permanent injunction and specific performance, in any court of competent jurisdiction to prevent or enjoin misappropriation, misuse, unauthorized disclosure, use or infringement of any intellectual property rights and/or Confidential Information in addition to any other remedies or damages to which NotchPoint may be entitled.
Force Majeure Event. Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under these Terms due to any cause beyond its reasonable control, including, but not limited to, acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet (each a “Force Majeure Event”), provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.
Insurance. During the Term of this Agreement, NotchPoint agrees to keep in full force and effect: (i) comprehensive general liability insurance in an amount not less than $1 million per occurrence for bodily injury and property damage, (ii) network security and privacy liability insurance in an amount not less than $1 million for a network security failure, data breach, privacy policy violation and/or a disclosure of third-party corporate information and (iii) workers' compensation insurance in an amount not less than that required by applicable law.
Third Party Provider Agreements. The provisions of any Third-Party Provider agreements or terms of use may differ from the foregoing and shall apply in the event of any conflict.
Compliance with Laws. The Subscription Service is subject to U.S. export control laws and regulations. Customer agrees to comply with all applicable international and national laws applicable to the Subscription Service.
Complete Agreement. This Agreement, together with its SOWs, constitute the complete agreement between Customer and NotchPoint and supersede all prior or contemporaneous agreements or representations, written or oral, concerning its subject matter. Pre-printed terms and conditions contained in any purchase order or other ordering document shall have no force or effect.
Counterparts. This Agreement may be executed in counterparts, which together shall constitute a single agreement. Delivery by telephonic facsimile transmission or email scan of a signed counterpart of this Agreement shall be effective as delivery of a manually signed counterpart. Once signed, any reproduction of this Agreement made by reliable means (e.g., photocopy, facsimile, email scan) is considered an original.
Amendment. This Agreement may be amended or changed only by a written document signed by authorized representatives of NotchPoint and Customer.
Conflicts. In the event of a conflict between or among the terms in this Agreement, a SOW or any other document made a part hereof, the documents shall control in the following order: this Agreement, the SOW and any other document made a part hereof having the least priority.
Right to use Name. NotchPoint shall have the right to use Customer’s name as a part of its Customer list and may refer to Customer as a user of the Subscription Service in its general advertising and marketing materials upon Customer approval.
NOTICES. Any notice or communication required or permitted to be given under this Agreement be delivered by hand, deposited with an overnight courier, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as listed on the SOW or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered, mailed, or sent, whichever is earlier.