TERMS AND CONDITIONS
1. ACCESS RIGHTS; RESTRICTIONS
1.1 Access. Subject to Customer’s compliance with the terms
and conditions of this Agreement, CFTG hereby agrees that
Customer has the right to access and use the services
specified in the attached Order Form (collectively, the
“Service”) during the term of this Agreement for the internal
business purposes of Customer only as provided herein and
only in accordance with CFTG’s applicable user documentation
(or other CFTG-provided written instructions). For clarity, the
Service is hosted by CFTG.
1.2 Restrictions. Customer will not (and will not allow any
third party to): (i) reverse engineer, decompile, disassemble, or
otherwise attempt to discover the source code, object code, or
underlying structure, ideas, or algorithms of the Service; (ii)
modify, translate, or create derivative works based on the
Service; (iii) copy, rent, lease, distribute, pledge, assign, or
otherwise transfer or encumber rights to the Service; (iv) use
the Service for timesharing or service bureau purposes or
otherwise for the benefit of a third party; (v) remove or
otherwise alter any proprietary notices or labels from the
Service or any portion thereof, or (vi) use any data or
information provided via the Service for any purpose other than
the Customer’s internal use as authorized hereunder (for
example, Customer shall not sell or otherwise dispose of such
information/data – or use it to create any product or service).
Customer will use the Service only in compliance with (i) the
Order Form, (ii) the rights granted hereunder, and (iii) in
accordance with all applicable laws and regulations.
1.3 Ownership. Except for the rights expressly granted under
this Section 1, CFTG retains all right, title, and interest in and
to the Service (and all data, software, products, works, and
other intellectual property created, used, or provided by CFTG
for the purposes of this Agreement). To the extent Customer
provides CFTG with any feedback relating to the Service
(including, without limitation, feedback related to usability,
performance, interactivity, bug reports and test results)
(“Feedback”), CFTG shall own all right, title and interest in and
to such Feedback (and Customer hereby makes all
assignments necessary to achieve such ownership).
2. PAYMENT OF FEES
Customer will pay CFTG the fees for the Service as set forth in
the Order Form (“Fees”). Unless otherwise specified in the
Order Form, all Fees will be invoiced in advance and all
invoices issued under this Agreement are payable in U.S.
dollars within thirty (30) days from date of invoice. For any
Service for which fees are billed in arrears, CFTG will invoice
Customer following completion of the Service. Unpaid invoices
are subject to a finance charge of 1.5% per month or the
maximum permitted by law, whichever is lower, plus all
expenses of collection. Customer shall be responsible for all
(i) taxes associated with Service other than taxes based on
CFTG’s net income, and (ii) CFTG’s costs of collection in the
event of Customer’s delinquent payment. All Fees paid are
non-refundable (except as otherwise expressly set forth in the
Order Form) and not subject to set-off.
3. TERM; TERMINATION
Subject to earlier termination as provided below, this
Agreement shall commence on the Effective Date and continue
for the initial subscription period specified in the Order Form;
thereafter this Agreement will automatically renew for
consecutive periods each equal in length to the initial
subscription period (unless either party provides the other party
with written notice of non-renewal at least thirty (30) days prior
to the end of the then current period). Either party may
terminate this Agreement in the event the other party materially
breaches this Agreement and fails to cure such breach within
thirty (30) days (ten (10) days in the case of non-payment)
from receipt of written notice thereof. Upon termination of this
Agreement, all rights granted herein to Customer will terminate
and Customer will make no further use of the Services. The
following provisions will survive termination of this Agreement:
Sections 1.2, 1.3, 2, 3, 4, 5, 6, 7, and 8.
4. CONFIDENTIALITY
During the term of this Agreement, each party (a “Disclosing
Party”) may provide the other party (a “Receiving Party”) with
confidential and/or proprietary materials and information
(“Confidential Information”). All materials and information
provided by Disclosing Party to Receiving Party and identified
at the time of disclosure as “Confidential” or bearing a similar
legend, and all other information that the Receiving Party
reasonably should have known was the Confidential
Information of the Disclosing Party, shall be considered
Confidential Information; for the avoidance of doubt, the
Service and terms of this Agreement are Confidential
Information of CFTG. Receiving Party shall maintain the
confidentiality of the Confidential Information and will not
disclose such information to any third party without the prior
written consent of Disclosing Party. Receiving Party will only
use the Confidential Information internally for the purposes
contemplated hereunder. The obligations in this Section 4
shall not apply to any information that: (i) is made generally
available to the public without breach of this Agreement, (ii) is
developed by the Receiving Party independently from the
Disclosing Party’s Confidential Information, (iii) is disclosed to
Receiving Party by a third party without restriction, or (iv) was
in the Receiving Party’s lawful possession prior to the
disclosure to the Receiving Party and was not obtained by the
Receiving Party either directly or indirectly from the Disclosing
Party. Receiving Party may disclose Confidential Information
as required by law or court order; provided that, Receiving
Party provides Disclosing Party with prompt written notice
thereof and uses its best efforts to limit disclosure. At any
time, upon Disclosing Party’s request, Receiving Party shall
return to Disclosing Party all Disclosing Party’s Confidential
Information in its possession, including, without limitation, all
copies and extracts thereof. Notwithstanding the foregoing, (a)
Receiving Party may disclose Confidential Information to any
third-party to the limited extent necessary to exercise its rights,
or perform its obligations, under this Agreement; provided that,
all such third parties are bound in writing by obligations of
confidentiality and non-use at least as protective of the
Disclosing Party’s Confidential Information as this Agreement
and (b) all Feedback shall be solely CFTG’s “Confidential
Information.”
5. WARRANTY; DISCLAIMER
CFTG warrants that it will use commercially reasonable efforts
to (i) ensure the Service is available on a 24/7 basis, and (ii)
promptly correct all verifiable defects in the Service of which
CFTG is aware. EXCEPT AS EXPRESSLY SET FROTH IN
THIS SECTION 5, CFTG DISCLAIMS ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NONINFRINGEMENT. CFTG
DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS
THAT MAY BE OBTAINED FROM USE OF THE SERVICE.
6. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY,
EXCEPT FOR BODILY INJURY OF A PERSON, NEITHER
PARTY, SHALL BE LIABLE WITH RESPECT TO ANY
SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY
LEGAL OR EQUITABLE THEORY, FOR ANY: (A) ERROR OR
INTERRUPTION OF USE, LOSS OR INACCURACY OR
CORRUPTION OF DATA, THE COST OF PROCUREMENT
OF SUBSTITUTE GOODS, SERVICE, OR TECHNOLOGY,
OR LOSS OF BUSINESS; (B) INDIRECT, EXEMPLARY,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES,
EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH LOSS OR DAMAGE; (C) MATTERS
BEYOND SUCH PARTY’S REASONABLE CONTROL; OR (D)
AMOUNTS IN THE AGGREGATE THAT EXCEED THE FEES
PAID BY CUSTOMER TO CFTG DURING THE SIX (6)
MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF
ACTION ACCRUES (PROVIDED THAT, IF NO FEES ARE
PAID, SUCH AMOUNTS SHALL BE LIMITED TO
US$1,000.00). THE LIMITATIONS ON LIABILITY CONTAINS
HEREIN SHALL NOT APPLY TO BREACH(ES) OF
SECTIONS 1.2 OR 4.
7. NON-SOLICITATION
Until one (1) year after termination of this Agreement,
Customer will not encourage or solicit any employee or
consultant of CFTG to leave CFTG for any reason.
8. MISCELLANEOUS
The parties will comply with the additional term and conditions
(if any) set forth in the Order Form. If any provision of this
Agreement is found to be unenforceable or invalid, that
provision will be limited or eliminated to the minimum extent
necessary so that this Agreement will otherwise remain in full
force and effect and enforceable. This Agreement is not
assignable or transferable by a party except with the other
party’s prior written consent; provided that, a party may
transfer and assign its rights and obligations under this
Agreement without consent to a successor to all or
substantially all of its assets or business to which this
Agreement relates. This Agreement is the complete and
exclusive statement of the mutual understanding of the parties
and supersedes and cancels all previous written and oral
agreements, communications, and other understandings
relating to the subject matter of this Agreement, and all waivers
and modifications must be in a writing signed by both parties,
except as otherwise provided herein. No agency, partnership,
joint venture, or employment is created as a result of this
Agreement, and Customer does not have any authority of any
kind to bind CFTG in any respect whatsoever. Any notices in
connection with this Agreement will be in writing and sent by
first class US mail, confirmed facsimile or major commercial
rapid delivery courier service to the address specified on the
Order Form (or such other address as may be properly
specified by written notice hereunder). Email notice shall
authorized to the extent set forth herein. This Agreement shall
be governed by the laws of the State of California, without
regard to the conflict of law provisions thereof. Except for
claims for injunctive or equitable relief or claims regarding
intellectual property rights (which may be brought in any
competent court), any dispute arising under this Agreement
shall be finally settled in accordance with the Comprehensive
Arbitration Rules of the Judicial Arbitration and Mediation
Service, Inc. (“JAMS”) by three arbitrators appointed in
accordance with such Rules. The arbitration shall take place in
Santa Clara, California, USA, in the English language and the
arbitral decision may be enforced in any court. With respect to
all disputes arising in relation to this Agreement, but subject to
the preceding arbitration provision, the parties consent to
exclusive jurisdiction and venue in the state and Federal courts
located in San Francisco, California. The prevailing party in
any action or proceeding to enforce this Agreement will be
entitled to recover costs and attorneys’ fees.
