Last Modified: Sep 1, 2020
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BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING THIS AGREEMENT OR AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AND THE BUSINESS ENTITY THAT YOU REPRESENT ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE BUSINESS ENTITY YOU REPRESENT. YOU HEREBY COVENANT TO ENSURE THAT ALL USERS THAT GAIN ACCESS TO THE PLUS PLATFORM AND/OR THE SERVICES FROM YOU ARE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
FURTHER, THESE TERMS OF SERVICE CONTAIN AN AGREEMENT TO ARBITRATE, WHICH REQUIRES THAT YOU AND PLUS ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT AND LIMITS CLASS ACTION CLAIMS UNLESS YOU OPT OUT AS PROVIDED IN SUCH AGREEMENT TO ARBITRATE (SEE SECTION 13 “AGREEMENT TO ARBITRATE”).
“Activation Date” means the date on which the Subscription Services are made available to Client via the Internet for use by Client and its Users in accordance with this Agreement.
“Affiliate” means any corporation or entity of either party, which is owned or controlled by or under common control with a party. For purposes of this definition, “control” shall mean the right to exercise directly or indirectly, more than fifty percent (50%) of the voting rights attributable to the shares of the corporation or entity or the power to direct or cause the direction of the management or policies of the corporation or entity.
“Ancillary Services” means any implementation, installation, support, training, consulting, custom development or other professional services provided by Plus to Client hereunder in connection with the Plus Platform.
“Client Content” means content uploaded to and stored in the Plus Platform by the Client in connection with Client’s use of the Plus Platform.
“Client System” means Client’s website(s), systems, servers and third party hosted services, equipment and software used in the conduct of Client’s business.
“Documentation” means any proprietary user documentation made available to Client by Plus, including any documentation available on the Website or otherwise, as amended or updated by Plus from time to time in its discretion.
“Intellectual Property Rights” shall mean all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.
“Order” or “Order Form” means an order for the purchase by Client of Subscription Services provided through the Plus Platform and/or Ancillary Services, as mutually agreed by the parties through the Plus Platform from time to time.
“PII” means information that can be used to identify, contact, locate, distinguish or trace an individual’s identity, either alone or when combined with other personal or identifying information that is linked or linkable to a specific individual. For the sake of clarity, PII shall exclude prohibited information as outlined in Section 8.3.
“Services” means Subscription Services and/or Ancillary Services, as applicable.
“Subscription Services” means those services offered by means of the Plus Platform,. For the avoidance of doubt, Subscription Services do not include Ancillary Services.
“Subscription Term” means the subscription period set forth in an Order for the relevant Subscription Services purchased pursuant to such Order, commencing on the Activation Date for such Subscription Services.
“Third Party Software” means certain software included as part of the Plus Platform, which is licensed from third parties, which may include open source software subject to the provisions of the applicable open source license(s).
“Users” means employees and individual consultants of Client who are authorized by Client to use the Plus Platform and the Subscription Services on behalf of Client and who have been supplied user identifications and passwords by Client pursuant to Section 4.1.
2.1 Subscription Services. Subject to the terms and conditions of this Agreement, Client may purchase Subscription Services pursuant to Orders. Each Order is deemed incorporated into this Agreement by reference.
2.2 Access and Use. Subject to the terms and conditions of this Agreement, Plus hereby grants to Client, during the relevant Subscription Term, a limited, non-exclusive, non-transferable (except as expressly set forth herein) right for its Users to access and use the Subscription Services via the Plus Platform in accordance with the Documentation, solely for Client’s internal business or personal purposes and not for the benefit of any other person or entity. Client agrees that its purchases under this Agreement are neither contingent on the delivery of any future functionality or features of the Plus Platform nor dependent on any oral or written public comments made by Plus regarding future functionality or features. Further, if Plus provides You with any API or software outside the Plus Platform (“Ancillary Software”), Plus hereby grants You a limited, non-exclusive, non-transferable right to use that Ancillary Software solely in connection with Your use of the Plus Platform. For the avoidance of doubt, Client and its Users will not have the right to access or use the Plus Platform except for the access and use of Subscription Services through the Plus Platform as provided in this Section and in connection with any Ancillary Services.
2.3 Restrictions. Client shall not, directly or indirectly, and Client shall not permit any User or third party to, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Plus Platform; (ii) modify, translate, or create derivative works based on any element of the Plus Platform or any related documentation; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Subscription Services or Plus Platform; (iv) use the Subscription Services or Plus Platform for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Client and its Users; (v) remove any proprietary notices from the Documentation; (vi) publish or disclose to third parties any evaluation of the Subscription Services or Plus Platform without Plus’s prior written consent; (vii) use the Subscription Services or Plus Platform for any purpose other than as authorized herein; (viii) interfere with or disrupt the integrity or performance of the Subscription Services or Plus Platform; or (ix) attempt to gain unauthorized access to the Subscription Services or Plus Platform.
2.4 Hardware and Software. Client is responsible for (i) obtaining, deploying and maintaining the Client System, and all computer hardware, software, modems, routers and other communications equipment necessary for Client and its Users to access and use the Subscription Services and Plus Platform via the Internet; (ii) contracting with third party ISP, telecommunications and other service providers to access and use the Subscription Services and Plus Platform via the Internet; and (iii) paying all third party fees and access charges incurred in connection with the foregoing. Except as specifically set forth in this Agreement, Plus shall not be responsible for supplying any hardware, software or other equipment to Client under this Agreement.
2.5 Ancillary Services. The parties may agree to, from time to time, Ancillary Services to be provided by Plus to Client pursuant to an Order.
2.6 Arrangements between You and Your Third Party Service Providers. The Plus Platform will enable Plus to observe Your services from third party providers. You agree and acknowledge that You are solely responsible for all arrangements between You and such third party providers.
2.7 Changes to the Plus Platform. You agree and acknowledge that Plus may update and otherwise change the Plus Platform from time to time in its sole discretion from time to time during or after your Subscription Term provided that such modifications do not materially degrade any of the functionality or features of the Plus Platform.
3. Third Party Software
3.1 Acquisition of Third Party Software. Plus may make available optional third-party products or services, including, for example SaaS, and web applications. Any acquisition by Client of such Third Party Software, and any exchange of data between Client and Third Party Software, is solely between Client and the applicable provider. We do not warrant or support non Plus applications or other non-Plus products or services, whether or not they are designated by Plus
3.2 Third Party Software and Your Data. If You install or enable Third Party Software for use with a Service, You grant Us permission to allow the provider of that Third Party Software to access Your Data as required for the interoperation of that Third Party Software with the Plus Services. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by such Third Party Software.
3.3 Integration with Third Party Software. The Services may contain features designed to interoperate with Third Party Software. To use such features, You may be required to obtain access to Third Party Software from their providers, and may be required to grant Us access to Your account(s) on the Third Party Software. If the provider of Third Party Software ceases to make the software available for interoperation with the corresponding Service features on reasonable terms, Plus may cease providing those Service features without entitling Client to any refund, credit, or other compensation.
4. Passwords and Security
4.1 User Access. Client is solely responsible for any and all access and use of the Subscription Services or Plus Platform that occurs under Client’s account. Client administrators can invite other users to access the Plus Platform with their Google account. Client shall restrict its Users from sharing access. Client agrees to immediately notify Plus of any unauthorized use of Client’s or any User’s account and/or login, or any other breach of security known to Client. Plus shall have no liability for any loss or damage arising from Client’s failure to comply with the terms set forth in this Section.
4.2 Security. Plus will deploy commercially reasonable security precautions intended to protect against unauthorized access to any Client Content stored by Plus on the Plus Platform in connection with Client or its Users’ use of the Plus Platform. Plus will exercise reasonable efforts to deploy corrections within the Plus Platform for security breaches made known to Plus.
4.3 No Circumvention of Security. Neither Client nor any User may circumvent or otherwise interfere with any user authentication or security of the Plus Platform. Client will immediately notify Plus of any breach, or attempted breach, of security known to Client.
4.4 No Guarantee of Security. Client acknowledges that, notwithstanding the security precautions deployed by Plus, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Plus Platform and Client Content. Plus cannot and does not guarantee the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient.
5. Fees and Payment
5.1 Subscription Fees. Client shall pay to Plus the subscription fees and charges for the Subscription Services for the applicable Subscription Term as set forth in the Order Form (the “Subscription Fees”). Client will be billed in advance on a monthly basis for the applicable Subscription Fees for such Services. Plus may change the Subscription Fees in its sole discretion at any time; provided that Subscription Fees for Client’s then-current Subscription Term will not change until the expiration of such then-current Subscription Term.
5.2 Other Fees. Client shall pay to Plus the fees, if any, set forth in an Order for Ancillary Services, together with any pre-approved out-of-pocket expenses that may be incurred by Plus or its personnel in connection with the Ancillary Services, including any travel and living expenses.
5.3 Invoices and Payment Terms. 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 Subscription Services listed in the Product Schedule for the initial Subscription Term and any renewal Subscription Term(s) as set forth in Section 12 (Term and Termination). 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 thirty (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.
5.4 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 month, 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 5.3 (Invoices and Payment Terms).
5.5 Taxes. Client shall pay all applicable sales (unless an exemption certificate is furnished by Client to Plus), use and value-added taxes (except for taxes imposed on Plus’s net income) with respect to this Agreement or furnish Plus with evidence acceptable to the taxing authority to sustain an exemption therefrom. All payments under this Agreement shall be made free and clear of (and without deduction for or grossed up for, as applicable) any withholding or other taxes levied by any country or jurisdiction on payments to be made pursuant to this Agreement that applicable law requires Client to withhold.
6. Representations and Warranties
6.1 Plus Platform Warranty. Plus warrants to Client that during the Subscription Term of Client’s subscription to the Subscription Services, such Subscription Services shall, under normal use and service, substantially conform to, and perform in all material respects, the functions described in the applicable Documentation. If any such Subscription Services fail to comply with the foregoing warranty, Client shall provide written notice to Plus prior to the expiration of the warranty period set forth above and such notice will describe in reasonable detail the nature of the non-conformity. In such event, Plus shall use reasonable efforts to repair or rectify such non-conformity. If Plus is unable to repair or rectify such non-conformity, then Plus may terminate this Agreement (including without limitation the licenses granted in this Agreement) with respect to the non-conforming Subscription Services and in such event, Plus will refund to Client on a pro-rata basis as applicable the portion of Subscription Fees paid to Plus prior to termination applicable to the access and use of such non-conforming Subscription Services after the termination date. THE REMEDY SET FORTH IN THIS SECTION SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND PLUS’S SOLE OBLIGATION FOR ANY BREACH OF THE WARRANTY SET FORTH IN THIS SECTION.
6.2 Exclusions. The warranty set forth in Section 6.1 does not cover defects or non-conformities arising from (i) misuse of the Plus Platform or the Documentation, (ii) any modifications to the Plus Platform made by any person or entity other than Plus that is not previously approved by Plus, (iii) any use of the Subscription Services or Plus Platform by Client or its Users beyond the scope of the express rights licenses granted in this Agreement, (iv) any use of the Plus Platform in combination with other software, hardware or data, or (v) Plus’s compliance with Client’s request for changes to the Plus Platform or with Client’s designs, specifications or instructions.
6.3 Client Warranties. Client System Warranty. Client represents and warrants that Client has the right, including in respect of all relevant Intellectual Property Rights and applicable data privacy and other laws, to provide Plus access to and use of the Client Content, including without limitation, for use in connection with the Subscription Services, Plus Platform or Ancillary Services.
6.4 Other Client Representations and Warranties. Client represents, warrants and covenants that: (a) Client has the full power and authority to enter into this Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) Client’s execution of and performance under this Agreement shall not breach any oral or written agreement with any third party or any obligation owed by Client to any third party to keep any information or materials in confidence or in trust.
6.5 Disclaimer. THE WARRANTIES SET FORTH IN THIS SECTION 6 ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, AND, EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 6, THE PLUS PLATFORM, SUBSCRIPTION SERVICES, AND ANCILLARY SERVICES ARE PROVIDED ON AN AS-IS BASIS. CLIENT’S USE OF THE PLUS PLATFORM, SUBSCRIPTION SERVICES AND ANCILLARY SERVICES IS AT ITS OWN RISK. PLUS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
NO AGENT OF PLUS IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF PLUS AS SET FORTH HEREIN. PLUS DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES OR PLUS PLATFORM IS OR WILL BE UNINTERRUPTED OR ERROR FREE. CLIENT ACKNOWLEDGES AND AGREES THAT THE PLUS PLATFORM (AS WITH TECHNOLOGY GENERALLY), MAY HAVE ERRORS (OR “BUGS”) AND MAY ENCOUNTER UNEXPECTED TECHNICAL PROBLEMS. ACCORDINGLY, FROM TIME TO TIME, CLIENT MAY EXPERIENCE DOWNTIME AND ERRORS IN THE OPERATION, FUNCTIONALITY OR PERFORMANCE OF THE PLUS PLATFORM OR SUBSCRIPTION SERVICES. ACCORDINGLY, CLIENT SHALL PUT IN PLACE REASONABLE INTERNAL PROCEDURES AND PROCESSES TO ENABLE IT TO MINIMIZE ANY INCONVENIENCE AND ANY ADVERSE IMPACT OF ANY SUCH DOWNTIME OR ERROR.
7.1 Plus Indemnity. Plus shall, subject to the terms and conditions set forth in this Agreement, (i) defend Client from and against any and all third party claims, actions, suits, demands or proceeding brought against Client (a “Claim”) alleging that Client’s use of the Plus Platform and Subscription Services in accordance with the terms of this Agreement infringes any United States copyright or United States patent issued as of the Effective Date, and (ii) indemnify and hold harmless Client against any damages awarded to the third party bringing the Claim or any settlement amount approved by Plus in writing and paid to the third party bringing the Claim in order to settle the Claim. Plus’s obligations under this Section are conditioned upon (i) Plus being promptly notified in writing of such Claim, (ii) Plus having the exclusive right to control the defense and/or settlement of the Claim, and (iii) Client providing all reasonable assistance (at Plus’s request and expense) in the defense of the Claim. In no event shall Client settle any Claim without Plus’s prior written approval. Client may, at its own expense, engage separate counsel to advise Client regarding a Claim and to participate in the defense of the Claim, subject to Plus’s right to control the defense and settlement.
7.2 Mitigation. In the event of any such third party Claim or threat thereof, Plus, at its sole option and expense, may (i) procure for Client the right to continue to use the allegedly infringing Subscription Services or Plus Platform, or (ii) replace or modify the Plus Platform with functionally equivalent software and/or Services. If neither subpart (i) nor (ii) of this paragraph is commercially reasonable or practical in the reasonable opinion of Plus, Plus may terminate this Agreement with respect to the allegedly infringing Subscription Services or Plus Platform, and the license thereto granted hereunder, upon fifteen (15) days written notice to Client. In the event of such termination, Plus shall refund to Client any portion of Subscription Fees paid to Plus by Client for use of the allegedly infringing Subscription Services or Plus Platform following the date of such termination.
7.3 Exclusions. Notwithstanding anything to the contrary in this Agreement, Plus shall have no obligations to Client pursuant to Section 7.1 or Section 7.2 with respect to any infringement or alleged infringement resulting or arising from (1) any modifications to the Plus Platform made by any person or entity other than Plus that is not previously approved by Plus, (2) any use of the Plus Platform or Subscription Services by Client or its Users beyond the scope of the express rights and licenses granted in this Agreement, (3) any use of the Subscription Services or Plus Platform in combination with other service, software, hardware or data, (4) the Client Content or (5) Plus’s compliance with Client’s request for changes to the Plus Platform or with Client’s designs, specifications or instructions.
7.4 Sole Remedy. THE FOREGOING STATES THE ENTIRE LIABILITY OF PLUS WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE SUBSCRIPTION SERVICES OR PLUS PLATFORM OR OTHERWISE, AND CLIENT HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF PLUS WITH RESPECT THERETO.
7.5. Client Indemnity Client shall, subject to the terms and conditions set forth in this Agreement, (i) defend Plus from and against any and all Claims (as defined above) (a) alleging that the Client Content or Client System (and the exercise of the rights by Plus granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights; (b) caused by or resulting from Client’s use or alleged use of the Subscription Services or Plus Platform (other than claims arising from Plus’s breach of this Agreement or from claims subject to Section 7.1); (c) attributable to any transactions between Client and any third party, or (d) caused by or resulting from any breach or alleged breach by Client of any of its covenants, representations or warranties set forth in this Agreement and (ii) indemnify and hold harmless Plus against any damages awarded to the third party bringing the Claim or any settlement amount approved by Client in writing and paid to the third party bringing the Claim in order to settle the Claim. Client’s obligations under this Section are conditioned upon (i) Client being promptly notified in writing of such Claim, (ii) Client having the exclusive right to control the defense and/or settlement of the Claim, and (iii) Plus providing all reasonable assistance (at Client’s request and expense) in the defense of the Claim. In no event shall Plus settle any Claim without Client’s prior written approval. Plus may, at its own expense, engage separate counsel to advise Plus regarding a Claim and to participate in the defense of the Claim, subject to Client’s right to control the defense and settlement.
8.1 Confidential Information. “Confidential Information” means any and all non-public technical and non-technical information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to this Agreement, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information, including but not limited to: (i) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (ii) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information; (iii) proprietary or confidential information of any third party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business; and (iv) the terms of any Order. Confidential Information of Plus shall include the Plus Platform and Subscription Services. Confidential Information also includes all summaries and abstracts of Confidential Information.
8.2 Non-Disclosure. Each party acknowledges that in the course of the performance of this Agreement, it may obtain the Confidential Information of the other party. The Receiving Party shall, at all times, both during the Term and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it. The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under the terms of this Agreement. Each party agrees to secure and protect the other party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such party’s own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees, Affiliates or other agents who are permitted access to the other party’s Confidential Information to satisfy its obligations under this Section. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees, Affiliates, contractors and agents who need access to such Confidential Information in order to effect the intent of this Agreement and who are subject to confidentiality obligations at least as stringent as the obligations set forth in this Agreement.
8.3 Exceptions to Confidential Information. The obligations set forth in the previous Section (Non-Disclosure) shall not apply to the extent that Confidential Information includes information which: (i) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (iii) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of this Agreement or any obligation of confidentiality by the Receiving Party. Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (i) assert the confidential nature of the Confidential Information to the agency; (ii) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (iii) cooperate fully with the Disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality. Notwithstanding the foregoing unless otherwise set forth in the Order, Client authorizes Plus to list Client’s name and logo in a list of customers on Plus’s website and marketing materials.
9. Client Content
9.1 Client Content. Client, not Plus, shall be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness of and the parties’ respective rights to use all Client Content under this Agreement. Client shall be responsible for obtaining any consents and other rights necessary to collect, submit, use and process Client Content on the Plus Platform in connection with the Subscription Services.
9.2 Personally Identifiable Information. Client has control over whether any PII is collected and processed by the Plus Platform or its Client Systems. Client represents and warrants that (i) it will provide all required notice to and obtain all required consent from each individual regarding the collection, disclosure, analysis and use of any of their PII in the Client Content, and (ii) that the collection, disclosure, analysis and use of Client Content, as contemplated under this Agreement, complies with all applicable laws, rules and regulations.
9.3 Prohibited Use. Client shall not use the Subscription Services or Plus Platform to collect, or otherwise transmit to Plus, any sensitive PII about third parties, including passwords, credit or debit card number, Social Security number, financial account number or other financial information, driver’s license, passport or other government identification number, health information, or biometric data.
9.4 Compliance with Laws. Client represents and warrants that it will ensure that the collection and use of information via the Subscription Services complies with all applicable laws, rules and regulations and this Agreement.
9.5 Usage Data. Notwithstanding anything else in the Agreement or otherwise, Plus may monitor Client’s use of the Subscription Services and Plus Platform and use data and information related to Client Content and Client’s use of the Subscription Services in an aggregate or de-identified manner, including to compile statistical and performance information related to the provision and operation of the Plus Platform and Subscription Services. Client agrees that Plus may make such data and information publicly available, and use such information to the extent and in the manner required by applicable law or regulation and/or for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information is anonymized and does not identify Client, its Users or the Client’s Confidential Information. Plus retains all Intellectual Property Rights in such data and information.
9.6 GDPR and EU Data Processing. If you are established in, and any of the Personal Data that you submit to us contains the Personal Data of other individuals in, the European Economic Area and Switzerland, or if you are contractually obliged to comply with the GDPR, we will process any such Personal Data that you submit to us when you use the Services in accordance with a custom Data Processing Addendum, available upon request, which will be supplemental to the Agreement. In case of a conflict between these Terms of Service and the Data Processing Addendum, the Data Processing Addendum shall prevail.
10. Proprietary Rights
10.1 Ownership. Client acknowledges that the Plus Platform and the Subscription Services, and all Intellectual Property Rights therein, are the sole and exclusive property of Plus and its licensors. Plus acknowledges that the Client System, the Client Content and all Intellectual Property Rights therein, is the sole and exclusive property of Client and its licensors. Each party retains all other rights not expressly granted in this Agreement.
10.2 Plus Developments. All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of Plus, whether solely or jointly, including without limitation, in connection with Plus’s performance of the Ancillary Services hereunder (“Plus Developments”), including all Intellectual Property Rights therein, shall be the sole and exclusive property of Plus. Unless otherwise expressly set forth on an Order, Client shall have a non-exclusive, non-transferable license to use any Plus Developments provided to Client solely for Client’s internal use of the Plus Platform.
10.3 License to Client Content and Client Content. Client grants to Plus a royalty-free, nonexclusive, irrevocable, limited right and license to use the Client Content in order to provide the Subscription Services.
10.4 Disclosure of Client Content. Plus shall not disclose Client Content to third parties, except: (i) as necessary to provide the Subscription Services to you; (ii) to our service providers who are not permitted to use such data except on behalf of Plus, (iii) as required by law or to comply with legal process; (iv) to protect and defend the rights or property of Plus, including as evidence in litigation; (v) to troubleshoot problems with the Subscription Services; (vi) to any successor in interest, including as part of a merger, acquisition or transfer of assets, or as part of a bankruptcy proceeding; or (vii) in aggregate or de-identified form.
10.5 Limited Feedback License. Client hereby grants to Plus, at no charge, a non-exclusive, royalty-free, worldwide, transferable, sublicensable (through one or more tiers), perpetual, irrevocable license under Client’s Intellectual Property Rights in and to suggestions, comments and other forms of feedback (“Feedback”) regarding the Plus Platform and Plus Developments provided by or on behalf of Client to Plus, including Feedback regarding features, usability and use, and bug reports, to reproduce, perform, display, create derivative works of the Feedback and distribute such Feedback and/or derivative works in the Plus Platform or any other products or services. Feedback is provided by Client “as is” without warranty of any kind and shall not include any Confidential Information of Client.
11. Limitation of Liability
11.1. No Consequential Damages. PLUS AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF PLUS OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE PLUS PLATFORM, SUBSCRIPTION SERVICES, ANCILLARY SERVICES OR RESULTS THEREOF. PLUS WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
11.2 Limits on Liability. PLUS AND ITS LICENSORS SHALL NOT BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN THE SUM OF THE AMOUNTS HAVING THEN ACTUALLY BEEN PAID BY CLIENT TO PLUS UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE, MINUS, IN ALL CIRCUMSTANCES, ANY AMOUNTS PREVIOUSLY PAID (AS OF THE DATE OF SATISFACTION OF SUCH LIABILITY) BY PLUS TO CLIENT IN SATISFACTION OF ANY LIABILITY FOR DAMAGES UNDER THIS AGREEMENT. CLIENT RELEASES PLUS AND ITS LICENSORS FROM ALL OBLIGATIONS, LIABILITY, CLAIMS, OR DEMANDS RELATING TO THE PLUS PLATFORM, SUBSCRIPTION SERVICES OR ANCILLARY SERVICES, AND THIS AGREEMENT IN EXCESS OF THE LIMITATION PROVIDED FOR IN THIS SECTION 11.2.
11.3 Essential Purpose. Client acknowledges that the terms in this Section 11 (Limitation of Liability) are an essential basis of the bargain described in this Agreement and that, were Plus to assume any further liability, the fees payable hereunder would out of necessity, be set much higher. THE LIMITATIONS IN THIS SECTION 11 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
12. Term and Termination
12.1 Term of Agreement. The term of this Agreement shall commence on the Effective Date and continue until the expiration or termination of all Subscription Term(s) for Subscription Services, unless earlier terminated as provided in this Agreement. The term of each Order Form shall begin on the effective date of the Order Form and shall continue for length of the Subscription Term set forth therein. Unless otherwise expressly provided in the applicable Order Form, each Order Form for the Subscription Services shall automatically renew for additional terms of one (1) year each if Customer is on an Annual plan and one (1) month each if Customer is on a Monthly plan unless either Party notifies the other Party in writing at least thirty (30) days prior to the then current expiration date that it has elected not to renew such Order Form.
12.2 Termination. Notwithstanding the foregoing, either Party may terminate this Agreement or any Order Form (i) immediately in the event of a material breach of this Agreement or any such Order Form by the other Party that is not cured within thirty (30) days of written notice from the other Party, or (ii) immediately if the other Party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within ninety (90) days of filing. Termination of an Order Form shall not be deemed a termination of any other Order Forms. Upon termination of this Agreement, all Order Forms will immediately terminate.
12.3 Effects of Termination. Upon expiration or termination of this Agreement, (i) Client’s use of and access to the Subscription Services and Plus Platform and the performance of all Ancillary Services shall cease; (ii) all Order(s) shall terminate; and (iii) all fees and other amounts owed under this Agreement shall be immediately due and payable by Client, including without limitation, all fees incurred under any outstanding Orders up through the date of termination for any Ancillary Services completed and a pro-rated portion of the fees incurred for any partially completed Ancillary Services. If the Order Form is terminated for any reason other than a termination as a result of Plus’s material breach, then Plus shall be entitled to all of the Fees due under the applicable Order Form for the entire unexpired terminated portion of the term of such Order Form. If the Order Form is terminated as a result of Plus’s material breach, then Client shall be entitled to a refund of the pro rata portion of any prepaid Subscription Fees paid by Customer to Plus under this Agreement for the remaining unexpired terminated portion of the Term. Following a period of ten (10) days after the effective date of termination, Plus shall have no obligation to maintain or provide any Client Content and may thereafter unless legally prohibited, delete all Client Content in its systems or otherwise in its possession or under its control. Aggregate or de-identified client usage data as defined above in Usage Data will not be subject to destruction upon termination.
12.4 Survival. All rights and obligations of the parties that by their nature are reasonably intended to surive termination of this Agreement, including this Section 12 and Sections 1 (Definitions), 5 (Fees and Payments), 7 (Indemnification), 8 (Confidentiality), , 10 (Proprietary Rights), 11 (Limitation of Liability), 12 (Effects of Termination), 13 (Agreement to Arbitrate) and 14 (Miscellaneous) shall survive any termination or expiration of this Agreement according to their respective terms.
13. Agreement to Arbitrate
13.3 Opt Out. You may opt out of this agreement to arbitrate in this Section 13. If you do so, neither you nor we can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing within thirty (30) days of the date that you first became subject to this arbitration provision. The opt out notice must state that you do not agree to the Agreement to Arbitrate and must include your name, address, phone number, your login credentials to which the opt out applies and a clear statement that you want to opt out of this agreement to arbitrate. You must sign the opt out notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. You must use this address to opt out: Plus Technology ApS, Langebrogade 4, 1411 Copenhagen, Denmark.
14.1 Notices. Whenever, under the terms of or in connection with this Agreement, any notice, consent, approval, authorization or other information is proper or required to be given by either party, such notice, consent, approval, authorization or other information shall be in writing and shall be given or made by reputable overnight courier with documentation of receipt to the intended recipient thereof or by registered or certified mail, return receipt requested, and with all postage prepaid, to the address set forth in the preamble of this Agreement, or to such other address for either party as may be supplied by notice given in accordance herewith.
14.2 Amendment; Waiver. This Agreement may be amended or supplemented only by a writing that is signed by duly authorized representatives of both parties or through a click through agreement accepted by Client. No term or provision hereof shall be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
14.3 Severability. If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.
14.4 Governing Law. This Agreement and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of Denmark as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles which would apply the laws of any other state or country. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Subject in all respects to Section 13 hereof, for any disputes arising out of this Agreement, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in the New York, New York USA.
14.5 Attorneys’ Fees. In any action to enforce this Agreement, the prevailing party shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.
14.6 Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement); or any other event beyond the reasonable control of the party whose performance is to be excused.
14.7 Assignment. Neither party may assign its rights or obligations under this Agreement, whether voluntarily or by operation of law or otherwise, without the other party’s prior written consent. Notwithstanding the foregoing, either party may assign this Agreement in connection with an acquisition, sale or transfer of all or substantially all of its assets, stock or business by sale, merger, consolidation, or similar transaction. Any purported assignment or transfer in violation of this section shall be void. Subject to the foregoing restrictions, this Agreement will bind and benefit the parties and their successors and permitted assigns.
14.8 Relationship of the Parties. Plus is an independent contractor to Client. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf.
14.9 Construction of Agreement. Each party acknowledges that it has had the opportunity to have legal counsel review this Agreement and to negotiate its terms and conditions. Should any questions of construction or interpretation of this Agreement arise, then the parties agree that no presumption shall be applied against the party drafting this Agreement or any portion thereof and that the language of this Agreement shall, in all cases, be construed as a whole according to its fair meaning and not strictly for or against either party.
14.10 Entire Agreement. This Agreement, including all Order(s), constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral. No terms and conditions of any Client purchase order or similar document shall modify the terms and conditions of this Agreement, or add any additional or inconsistent terms for any reason or purpose whatsoever, regardless of any statement in a purchase order to the contrary.