PARTNEROPTIMIZER AND YOU AGREE THAT THESE TERMS SHALL GOVERN THE RELATIONSHIP BETWEEN THE PARTIES AS TO ANY PARTNEROPTIMIZER PRODUCTS OR SERVICES PROVIDED OR TO BE PROVIDED TO YOU AS SET FORTH IN A TRIAL AND/OR ANY AND ALL ORDERING DOCUMENTS ENTERED INTO PURSUANT TO THESE TERMS. IN THE EVENT OF ANY CONFLICT BETWEEN A PARTICULAR ORDERING DOCUMENT, THE TRIAL AND THESE TERMS, THESE TERMS HEREIN SHALL PREVAIL UNLESS THE ORDERING DOCUMENT EXPRESSLY PROVIDES THAT IT IS MODIFYING THE TERMS.
PartnerOptimizer may, in its sole discretion, modify these Terms at any time in its sole discretion effective upon posting the modified Terms through the Service, with or without additional notice to you. You are responsible for regularly reviewing any information posted through the Service, including updated Terms, if any. If you do not agree to the amended Terms, you agree to immediately stop using the Service. YOUR CONTINUED USE OF THE SERVICE AFTER SUCH POSTING (OR OTHER NOTIFICATION, IF ANY) MEANS YOU ACCEPT AND AGREE TO BE BOUND BY THE MODIFIED TERMS.
SECTION 9.2 AND 9.3 BELOW IMPACT YOUR RIGHT TO FILE A LAWSUIT IN COURT; READ CAREFULLY BEFORE ACCEPTING THESE TERMS.
1. DEFINITION OF TERMS
1.1. “Affiliate” means, with respect to a party, any entity that, now or hereafter, controls, is controlled by or is under common control with a party. For purposes of this definition, the terms “control”, “controlled by” and “under common control with” mean the possession directly or indirectly of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by trust, management agreement, contract or otherwise.
1.2. “Authorized Users” means the named employee(s), subcontractor(s) and/or agent(s) of Subscriber designated in an Ordering Form to access the Service.
1.3. “Deliverables” means the data, results or other information actually provided by PartnerOptimizer to you in connection with your use of the Service, including without limitation Partner Profiles, Company Profiles and Contact Information (each as defined herein or in the applicable Ordering Document).
1.4. “Online” means the limited terms and conditions of the Trial as set forth online through the PartnerOptimizer website.
1.5. “Ordering Document” means the (1) one or more completed online forms, and/or (2) customized form(s) provided to you by PartnerOptimizer, where You select the subscription package and other services or products to be provided or delivered by PartnerOptimizer to You under this Agreement.
1.6. “PartnerOptimizer Technology” means software or other technology of PartnerOptimizer, including the PartnerOptimizer online platform.
1.7. ”Representatives” means the employees, agents, contractors, subcontractors, auditors and other representatives of a party and its Affiliates.
1.8. “Service(s)” means access to or use of PartnerOptimizer Technology or other products or services of PartnerOptimizer, including all revisions, corrections, modifications, enhancements, improvements or upgrades thereto, if any, and support therefor.
2. SUBSCRIBED SERVICES, GRANT OF LICENSE
2.1 Trial. If You selected the Trial, PartnerOptimizer agrees to provide to You the Services for (i) the limited period, and (2) for the limited Deliverables, each as set forth Online (“Trial Services”). PartnerOptimizer will make the Trial Services available to You via password-protected online access accessible by You with usernames and passwords. Subject to the terms and conditions of this Agreement and the Online terms and conditions, PartnerOptimizer grants to You a limited, worldwide, non-exclusive, non-transferable, non-assignable, license and right to access, use and display the Trial Services.
2.2 Subscription License. PartnerOptimizer agrees to provide Subscriber with the Services set forth in Ordering Document(s). Specific Services may be defined by and are subject to any service-specific terms and conditions included with the Ordering Document. PartnerOptimizer may also make the Services available to Subscriber via password protected online access accessible by Subscriber with usernames and passwords, via an application programmer interface (“API”), or as otherwise mutually agreed by the parties in the Ordering Document. Subject to the terms and conditions of this Agreement and only during the Term, PartnerOptimizer grants to Subscriber and its Affiliates a worldwide, non-exclusive, non-transferable, non-assignable (except to permitted assigns), license and right to access, use and display the Services.
The Services will be provided as they exist and may be updated and amended throughout the Term. Information provided as part of any Deliverables may be updated on an ongoing basis and provided according to the criteria used to define the scope of the Services. Subject to the first sentence of this Section 2.3, Subscriber understands and acknowledges that the contents of Deliverables will change over time as the data is updated, and that at any given time it has a right to access and use the data in the Services as it exists at that time. Except as otherwise provided in the Agreement, features and functions of the PartnerOptimizer Technology are provided “as is” and as they may be modified, supplemented, or removed from time to time in PartnerOptimizer’s sole discretion, provided that such modifications, supplements or removals do not degrade the functionality, performance or security of the PartnerOptimizer Technology, and provided further that PartnerOptimizer provides Subscriber with thirty (30) days’ advance written notice of such modifications, supplements or removals.
2.3 Ownership. Subscriber acknowledges and agrees that the Deliverables, the PartnerOptimizer Technology, Services and any related documentation (including, without limitation, the content, layout, functions, design, appearance, trademarks, service marks, copyrights, patents, and other intellectual property comprising them) are the property of PartnerOptimizer, whether or not they are trade secrets, trademarked, copyrighted, or patented (collectively, the “PartnerOptimizer Materials”). Subscriber acknowledges and agrees that the Agreement does not transfer any ownership, right, title, or interest in the PartnerOptimizer Materials, nor any part thereof, except for the limited license provided hereunder, and Subscriber expressly disclaims and waives any and all claims to any ownership interest in any PartnerOptimizer Materials. Subscriber further acknowledges and agrees that the Deliverables, in whole or in part, are unique, special, and valuable. Subject to the limited rights expressly granted hereunder, PartnerOptimizer, its Affiliates and/or its licensors reserve all right, title, and interest in and to the PartnerOptimizer Materials, including all related intellectual property rights. No rights are granted to Subscriber hereunder other than as expressly set forth herein.
2.4 Third-Party Applications. “Third-Party Applications” means computer software programs and other technology that are provided or made available to Subscriber or Authorized Users by third parties, including those with which the PartnerOptimizer Technology may interoperate, including, for example, Subscriber’s CRM, marketing automation software, or sales enablement software, if any. PartnerOptimizer may make available as part of the Services certain “Integration Tools”, which consist of PartnerOptimizer Technology designed to allow Subscriber to use PartnerOptimizer Technology and the Deliverables in such a way as to interoperate with one or more Third-Party Applications. PartnerOptimizer is not responsible for any Third-Party Applications or websites linked to by PartnerOptimizer Technology.
2.5 Quality Guarantee, Availability. A “Company Profile” means a record regarding a company, consisting of several to thousands of data points primarily identified within that company’s live website, that may include but are not limited to: the company’s domain name, types of services it provides, specializations it has, industry sectors it focuses on, Subscriber sizes and types it focuses on, vendor names and product names it is associated with, partner programs it participates in, and certifications it has earned, etc. If, within 30 days of Subscriber receiving a Company Profile, that company is found to no longer exist, then upon notice from the Subscriber, PartnerOptimizer shall add back to the Subscriber’s account the appropriate credits within 10 business days.
2.6 If Subscriber selects as an add-on to be provided with Company Profile direct contact information (“Contact Info”),PartnerOptimizer will use commercially reasonable efforts to provide the Contact Info in accordance with the Ordering Document(s). Contact Info is a record regarding a natural person (“Natural Person”) consisting of at a minimum such person’s name and affiliation with a Company Profile. PartnerOptimizer will use its commercially reasonable efforts to provide the name, title and email address of the Natural Person. PartnerOptimizer represents and warrants that it has all necessary consents, if any, to provide such Contact Info to Subscriber.
2.6 Support. PartnerOptimizer will provide reasonable assistance and ongoing support to assist Subscriber and Authorized Users in accessing the Services. PartnerOptimizer will make its personnel available by email, online chat, or phone for feedback, problem solving, or general questions between the hours of 5:00 a.m. and 5:00 p.m. Pacific Time (Monday – Friday), non-Federal Holidays and will acknowledge support requests within 24 business hours. Premium support services are subject to any service-specific terms and conditions included with the Ordering Document.
3. AUTHORIZED USE OF DELIVERABLES AND PARTNEROPTIMIZER TECHNOLOGY, RESTRICTIONS
3.1 Authorized Users. Each Authorized User will be provided a unique username and password. Such usernames and passwords may not be shared and may not under any circumstances be used by anyone who is not an Authorized User. Subscriber shall be responsible for compliance with the terms of the Agreement by all Authorized Users, including, without limitation, the restrictions on use and transfer of Deliverables set forth herein. Subscriber acknowledges and agrees that Authorized Users must provide PartnerOptimizer with certain identifying information, including their name and a business email address.
3.2 Authorized Uses, Restrictions. Subscriber shall not access or use the Services for any purpose except the ordinary business purposes of Subscriber. Subscriber shall not capture, access, store or otherwise use the Deliverables for the benefit of or on behalf of any person or entity except Subscriber or its Affiliates. Subscriber shall use the Services in compliance with all laws, rules, and regulations applicable to Subscriber as a recipient of the Services. Subscriber may use the Services to: (i) view the Deliverables; (ii) communicate with any Contact Info in a manner that relates to such person’s profession, business, or employment; and (iii) identify prospective sales opportunities, research Subscriber’s existing customers and prospects, and otherwise analyze the Deliverables in a manner relating to Subscriber’s ordinary business purposes. Subscriber shall not permit anyone who is not an Authorized User to access or use the Services, including any Deliverables or any Authorized User login credentials, to the extent such Authorized User login credentials are under the control of Subscriber or its Authorized Users. Except as otherwise provided in the Agreement, Subscriber shall not, and shall not permit any third-party to, distribute, sublicense, transfer, sell, offer for sale, disclose, or make available any of the Deliverables or any part of the Services to any third party. Subscriber shall not incorporate any portion of the Services or Deliverables into Subscriber’s own products or services. Subscriber shall not, and shall not permit or allow any third-party to, provide access to Deliverables developed or provided for you to any other party and shall not otherwise share Deliverables, or access thereto.
Notwithstanding the foregoing, Subscriber shall not be required to delete Company Profiles and Contact Info upon expiration or termination hereof, and may continue to use such information in a manner otherwise consistent with the Agreement. Subscriber is solely responsible for any communications between Subscriber and any Contact Info.
3.4 Permitted Use of PartnerOptimizer Technology, Restrictions. Subscriber is permitted to use the PartnerOptimizer Technology solely for the purpose of accessing and using the Deliverables as permitted by the Agreement. Except as otherwise provided in the Agreement, Subscriber will not (i) reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from any of the PartnerOptimizer Technology; (ii) reproduce, modify, create, or prepare derivative works of any of the PartnerOptimizer Technology or related documentation; (iii) distribute or display any of the PartnerOptimizer Technology or related documentation other than to Authorized Users; (iv) share, sell, rent, or lease or otherwise distribute access to the PartnerOptimizer Technology; (v) create any security interest in the PartnerOptimizer Technology; (vi) alter, destroy, or otherwise remove any proprietary notices or labels on or embedded within or on the PartnerOptimizer Technology or related documentation; (vii) disclose the results of any PartnerOptimizer Technology or program benchmark tests to any third parties without PartnerOptimizer’s prior written consent; or (viii) use automated means, such as bots or crawlers, to access any PartnerOptimizer Technology or extract information therefrom (except such means as are included within the PartnerOptimizer Technology, such as Integration Tools, or such other means as are expressly approved in advance in writing by PartnerOptimizer). Subscriber may use PartnerOptimizer Technology only in accordance with the Agreement and, except as otherwise provided herein, not for the benefit of any third party, except with PartnerOptimizer’s express prior written permission.
3.5 Limitations on Use of the Services. Subscriber shall use the Services in a responsible and professional manner consistent with the intended and permissible uses herein and consistent with standard industry practice. Subscriber shall not override or circumvent, or attempt to override or circumvent, any security feature, control, or use limits of the PartnerOptimizer Technology. Subscriber will not use the Deliverables or PartnerOptimizer Technology other than in accordance with the Agreement. PartnerOptimizer may use technological means to place reasonable use limits to prohibit improper use such as sharing with third parties or attempting to circumvent limitations to purchased credits (if applicable).
4. TERM RENEWALS AND TERMINATION
4.1 Trial. The Trial is for the limited term as set forth Online. At the expiration of the Trial, Your access to the Trial Services immediately ceases.
4.2 Subscription-Based Products; Automatic Renewal.
4.2.1 UNLESS OTHERWISE STATED IN THE ORDERING DOCUMENT, PARTNEROPTIMIZER PRODUCTS AND/OR SERVICES PROVIDED PURSUANT TO AN ANNUAL OR MULTI-YEAR SUBSCRIPTION SHALL AUTOMATICALLY RENEW AT THE END OF EACH TERM FOR EITHER THE SAME DURATION AS THE ORIGINAL TERM, AT EITHER THE EXISTING RATE, OUR THEN-CURRENT RATES, OR SUCH OTHER AMOUNT AS IS LISTED ON THE APPLICABLE ORDERING DOCUMENT, AND YOU WILL BE CHARGED THE APPLICABLE SUBSCRIPTION FEE FOR THE ENTIRE RENEWAL PERIOD (OR SUCH OTHER INSTALLMENT IDENTIFIED ON THE APPLICABLE ORDERING DOCUMENT), THROUGH THE CURRENT BILLING METHOD YOU HAVE ON FILE UNLESS YOU CALL CUSTOMER SERVICE AT 800-748-7650 PRIOR TO THE END OF THE THEN-CURRENT TERM AND CANCEL YOUR SUBSCRIPTION RENEWAL.
4.2.2 As to automatic renewals, PartnerOptimizer will bill you by way of the same method of payment with which you made your initial purchase.
4.3 Termination. Either party may terminate the Agreement, in whole or in part, immediately, without further obligation to the other party, in the event of a material breach of the Agreement by the other party that is not remedied within thirty (30) days after the breaching party’s receipt of written notice of such breach.
4.4 Effect of Termination.
4.3.1 Expiration or Termination for any Reason. Upon expiration or termination of the Agreement for any reason, Subscriber acknowledges and agrees that its access to the PartnerOptimizer Technology may be automatically terminated, all passwords and individual accounts removed, and all information that has been uploaded into PartnerOptimizer’s systems by Subscriber destroyed.
4.3.2 Termination by PartnerOptimizer. If the Agreement is terminated by PartnerOptimizer due to an uncured material breach by Subscriber, all undisputed Subscription Fees accrued and owing to PartnerOptimizer for the remainder of the then-current Term shall be immediately due and payable to PartnerOptimizer, and Subscriber shall promptly remit all such fees to PartnerOptimizer.
4.3.3 Upon expiration or termination of the Agreement for any reason, Subscriber shall cease accessing the Services and, except as otherwise provided in the Agreement, shall cease using the Deliverables in any way.
5. FEES AND TAXES
5.1 Subscriber shall pay all fees stated in the Ordering Document(s) and any other fees applicable to its subscription to Services as provided hereunder (the “Subscription Fee”). Except as otherwise provided in an Ordering Document, all Subscription Fees are due upon execution of the Ordering Document, or notice of an increased subscription as provided herein, and payable on the terms set forth therein. If no payment schedule is specified for any Subscription Fees in an Ordering Document, the entire amount shall be payable within thirty (30) days of PartnerOptimizer’s transmission to Subscriber of an appropriate invoice. All amounts payable by Subscriber under the Agreement will be paid to PartnerOptimizer without setoff or counterclaim, and without any deduction or withholding. PartnerOptimizer’s acceptance of partial payment or any payment of less than the full amount payable at any given time shall not constitute a waiver or release of PartnerOptimizer’s right to unpaid amounts.
5.2 If Subscriber fails to timely make any payment of Subscription Fees, PartnerOptimizer may, in its sole discretion, restrict or suspend Subscriber’s access to the Services until all past-due payments are made. PartnerOptimizer shall have the right to charge interest at the rate of 1.5% per month (or, if less, the highest rate permitted by law) on any late payments. Restriction or suspension of Subscriber’s online access to the Service during period of non-payment shall have no effect on the Term of this Agreement nor on Subscriber’s obligation to pay the Subscription Fee.
5.3 Subscriber is responsible for any applicable taxes, including, without limitation, any sales and use, taxes payable with respect to the Services provided to Subscriber by PartnerOptimizer hereunder and assessable by any local, state, provincial, or federal jurisdiction. Unless expressly specified otherwise in the Ordering Document, all fees, rates, and estimates exclude sales taxes. If PartnerOptimizer believes any such tax applies to Subscriber’s subscription and PartnerOptimizer has a duty to collect and remit such tax, the same may be set forth on an invoice to Subscriber unless Subscriber provides PartnerOptimizer with a valid tax exemption certificate, direct pay permit, or multi-state use certificate, and shall be paid by Subscriber immediately or as provided in such invoice. Subscriber shall indemnify, defend, and hold harmless PartnerOptimizer and its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns against any and all actual or threatened claims, actions, or proceedings of any taxing authority arising from or related to the failure to pay taxes owed by Subscriber, except to the extent that any such claims, action, or proceeding is directly caused by a failure of PartnerOptimizer to remit amounts collected for such purpose from Subscriber. PartnerOptimizer is solely responsible for taxes based upon PartnerOptimizer’s net income, assets, payroll, property, and employees.
6. DATA PROTECTION AND CONFIDENTIALITY
6.2 “Confidential Information” of a party means such party’s (and its Affiliate’s): inventions, discoveries, improvements, and copyrightable material not yet patented, published, or copyrighted; special processes and methods, whether for production purposes or otherwise, and special apparatus and equipment not generally available or known to the public; current engineering research, development, design projects, research and development data, technical specifications, plans, drawings and sketches; business information such as product costs, vendor and Subscriber lists, lists of approved components and sources, price lists, production schedules, business plans, and sales and profit or loss information not yet announced or not disclosed in any other way to the public; and any other information or knowledge not generally available to the public if it would be apparent to a reasonable person, familiar with such party’s business and industry, that such information or materials are of a confidential or proprietary nature. “Confidential Information” does not include the Deliverables (which are subject to other restrictions under the Agreement) or business contact (i.e., Contact Info) or firmographic information regarding third parties (i.e., Company Profiles). All business terms of the Agreement, including, but not limited to, pricing and access, shall be considered Confidential Information of PartnerOptimizer. Except with respect to personal information, Confidential Information does not include information that: (a) was known to the receiving party (as evidenced by its written record) or was in the public domain prior to the time obtained by the receiving party; (b) was lawfully disclosed to the receiving party by a third party who is under no obligation of secrecy with respect to the Confidential Information; or (c) became generally available to the public, by publication or otherwise, through no fault of the receiving party. The parties shall take all necessary and appropriate steps in order to ensure that its employees and subcontractors adhere to the provisions of this section. All Confidential Information shall be returned to the disclosing party or destroyed upon receipt by the receiving party of a written request from the disclosing party.
6.3 Each party shall keep in confidence all Confidential Information of the other party, and shall protect the confidentiality of such information in a manner consistent with the manner in which such party treats its own Confidential Information, but in no event with less than reasonable care. Except as otherwise provided herein, without the prior written consent of the disclosing party, the receiving party shall not disclose or make available any portion of the disclosing party’s Confidential Information to any person, firm, association, or corporation, or use such Confidential Information, directly or indirectly, except to the extent necessary for the performance of the Agreement or enforcement of rights hereunder. Notwithstanding the foregoing confidentiality obligations, the receiving party may disclose to and permit use of the Confidential Information of the disclosing party by (i) its Affiliates, and (ii) its legal counsel, auditors, banks and other financing sources and other Representatives, where, in each of items (i) and (ii): (A) such disclosure is only made with respect to such portion of the Confidential Information of the disclosing party that is reasonably necessary to permit the receiving party to perform its obligations or exercise or enforce its rights hereunder or to obtain the services of any such person to do the foregoing, (B) the receiving party’s Representatives are bound by obligations of confidentiality, non disclosure and the other restrictive covenants at least as restrictive and extensive in scope as those set forth herein; and (C) the receiving party assumes full responsibility for the acts or omissions of the persons to which it makes such disclosures no less than if the acts or omissions were those of the receiving party itself.
6.4 PartnerOptimizer acknowledges and agrees that no access, storage, or any other processing of Personal Data (definition provided below) is required for the provision of the Services to Subscriber. Therefore, PartnerOptimizer agrees that it shall not have access to, store or otherwise process any of Subscriber’s Personal Data. Subscriber acknowledges and agrees that Subscriber will make reasonable commercial efforts not to provide Personal Data to PartnerOptimizer. PartnerOptimizer shall immediately notify Subscriber if it receives Personal Data from Subscriber, and shall cooperate with Subscriber’s instructions with respect to the treatment and handling of such Personal Data.
“Personal Data” means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
6.5 Data Cleansing, Matching, and Related Requests. Subscriber acknowledges that, through the use of Integration Tools or otherwise, Subscriber may have the opportunity to transmit business information to PartnerOptimizer for purposes of matching, cleansing, or updating records with information from PartnerOptimizer’s database. In the event such information is transmitted to PartnerOptimizer, PartnerOptimizer will make commercially reasonable efforts consistent with its research protocols and priorities, to respond to match and clean and append requests by researching and/or verifying business contact information so submitted and supplementing PartnerOptimizer’s commercial database with information PartnerOptimizer or its licensors are able to verify.
6.6 Information Collection and Use. PartnerOptimizer collects Subscriber’s service provider, partner and/or customer information when Subscriber enters into an agreement with PartnerOptimizer to perform partner intelligence services. Such information may include the Subscriber’s list of service providers, partners or customer domains (websites) URLs. PartnerOptimizer may use information for the following general purposes:
(i) to fulfill Subscriber’s requests for products and services, improve our services, contact you, and conduct research.
6.7 Information Sharing. PartnerOptimizer does not rent, sell, or share Subscriber’s confidential information with other people or non-affiliated companies except to provide products or services you’ve requested, when we have your permission, or when we respond to subpoenas, court orders, or legal process, or to establish or exercise our legal rights or defend against legal claims. Any such disclosure shall be performed in accordance with the Agreement.
PartnerOptimizer limits access to Subscriber’s confidential information to employees who we believe reasonably need to come into contact with that information to provide products or services to you or in order to do their jobs. These individuals are bound by confidentiality obligations at least as stringent as those contained in the Agreement and may be subject to discipline, including termination and criminal prosecution, if they fail to meet these obligations.
6.8 Disclosure of Confidential Information. The receiving party may disclose the Confidential Information of the disclosing party where it is required to do so by law or by a binding court order save that, to the extent legally permissible, it shall notify the disclosing party of such disclosure in advance, allow the disclosing party a reasonable opportunity to object to such disclosure, and such disclosure shall be limited only to the portions of the Confidential Information necessary to comply with the requirement by law or binding court order. Further, the receiving party may disclose the other party’s Confidential Information to the extent required by law (including in filings made under the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended), the rules of any national stock exchange or any listing agreement with such stock exchange to which such party is or has elected to become subject.
7. REPRESENTATIONS AND WARRANTIES; DISCLAIMER
7.1 Each party represents and warrants that: (1) it is duly organized and validly existing and authorized to do business in the jurisdictions where it operates; and (2) it has the requisite power and authority to enter the Agreement and entering and complying with its obligations under the Agreement does not violate any legal obligation by which such party is bound.
7.2 Subscriber represents and warrants to PartnerOptimizer that it will not engage in, encourage, or knowingly permit the use of the Services in violation any applicable law, rule, or regulation applicable to Subscriber as a recipient of the Services or any right of any third party.
7.3 Except with respect to the Trial, PartnerOptimizer represents and warrants to Subscriber and its Affiliates that (i) Subscriber, its Affiliates, Representatives or Authorized Users use of the Services in accordance with the Agreement does not and will not infringe or misappropriate the patent, copyright, trademark, trade secret or other proprietary or intellectual property rights of any third-party; (ii) the Services will perform in accordance with any applicable specifications set forth in the Agreement, including those contained in the latest release of any documentation; (iii) it will provide the Services in a prompt, professional, diligent, workmanlike manner consistent with industry standards applicable to the performance of such Services, and (iv) the Services will be virus-free and will not include any disabling software or code that does or can disable, damage, corrupt, interfere with or delete any element of software, data, computer or electronic records or files of Subscriber, including any such code that allows PartnerOptimizer or any third party to access or to perform any unauthorized operations on Subscriber’s or its Affiliates’ systems without Subscriber’s prior authorization in each instance.
7.4 EXCEPT FOR ANY EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, THE DELIVERABLES, PARTNEROPTIMIZER TECHNOLOGY, AND ANY OTHER PRODUCTS OR SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENT, NEITHER PARTNEROPTIMIZER NOR ITS THIRD PARTY PROVIDERS MAKE ANY WARRANTY, EXPRESS OR IMPLIED, AS TO THE ACCURACY OF THE DELIVERABLES OR RESULTS OBTAINED FROM USING IT, OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7.5 Subscriber is solely responsible for compliance with all applicable laws regarding its use of the Deliverables, or portions thereof.
8.1 Remedies not Exclusive. No remedy provided in the Agreement shall be deemed exclusive of any other remedy that a party may have at law or in equity unless it is expressly stated herein that such remedy is exclusive.
8.2 Provisional Remedies. Each party recognizes that the unauthorized disclosure of Confidential Information or Deliverables, may cause irreparable harm to the other party for which monetary damages may be insufficient, and in the event of such disclosure, such other party shall be entitled to seek an injunction, temporary restraining order, or other provisional remedy as appropriate without being required to post bond or other security.
9. ATTORNEY FEES, DISPUTE RESOLUTION, CLASS ACTION WAIVER
9.1 Attorney Fees. In the event of any dispute arising under this Agreement, the prevailing party shall be entitled to recover its reasonable costs and expenses actually incurred in endeavoring to enforce the terms of this Agreement, including reasonable attorney fees.
9.2 Mandatory Arbitration. Except for Litigation Claims (defined below), any dispute, claim, or controversy arising out of or relating to this Agreement, including, without limitation (1) claims relating to the breach, termination, enforcement, interpretation or validity thereof, (2) claims alleging tortious conduct (including negligence) in connection with the negotiation, execution, or performance thereof, or (3) the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration. The arbitration shall be heard by a single arbitrator and shall be conducted in San Diego, California. Judgment on the Award may be entered in any court having jurisdiction. This section shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator shall have the power to award any remedy provided under applicable law, except that the arbitrator shall have no power to award: (1) punitive, exemplary, or multiple damages under any legal theory; (2) mandatory or prohibitory injunctive relief, except for temporary relief in aid of the arbitration or to secure the payment of an award; or (3) any damages in excess of the limits set forth in this section or Section 10 (Limitation of Liability) of this Agreement.
9.3 Class Action Waiver. No party shall commence or seek to prosecute or defend any dispute, controversy, or claim based on any legal theory arising out of or relating to this Agreement, or the breach thereof, other than on an individual, non-class, non-collective action basis. No party shall seek to prosecute or defend any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach thereof, in a representative or private attorney general capacity. The arbitrator shall not have the power to consolidate any arbitration under this Agreement with any other arbitration, absent agreement of all parties involved, or otherwise to deal with any matter on a non-individual, class, collective, representative, or private attorney general basis.
9.4 Litigation Claims. The following claims (“Litigation Claims”) shall be litigated and not arbitrated: (a) claims against a party to this Agreement under the provisions involving claims by third parties; (b) claims by a party for the unauthorized use, or the misuse, by the other party of the first party’s intellectual property or confidential, proprietary, or sensitive information; (c) claims by PartnerOptimizer to collect Subscription Fees; and (d) claims for a provisional remedy (such as a temporary restraining order or preliminary injunction) in aid of an arbitration under this Agreement. The Litigation Claims are not subject to arbitration and are expressly excluded by the parties from arbitration.
10.1 Subscriber agrees to indemnify and hold PartnerOptimizer and its Representatives, officers, directors, shareholders, partners, successors, and permitted assigns (the “PartnerOptimizer Indemnified Parties”) harmless from and against any and all damages, losses, liabilities, penalties, costs and expenses incurred (including reasonable attorneys’ fees) (collectively, “Losses”) incurred by the PartnerOptimizer Indemnified Parties, and shall defend the PartnerOptimizer Indemnified Parties from all claims, demands, suits, actions or other proceedings brought by third parties (“Claims”) arising out of or in connection with: (1) Subscriber’s access or use of the Deliverables in violation of any law applicable to Subscriber as a recipient of the Services, (2) Subscriber’s sending of any information, messages, or materials to any Contact Info (including, but not limited to, through e-mail, mail, or fax), (3) the use of any Deliverables or PartnerOptimizer Technology by any Authorized User in violation of the Agreement, (4) the gross negligence, fraud or willful misconduct of Subscriber, its Affiliates or Representatives (including any employees of the foregoing), or (5) the unauthorized disclosure, publication or dissemination by Subscriber, its Affiliates or Representatives (including any employees or the foregoing) of the Confidential Information of PartnerOptimizer or its Affiliates.
10.2 Indemnification by PartnerOptimizer. Except with respect to the Trial, PartnerOptimizer will indemnify and hold Subscriber, its Affiliates and its and their Representatives officers, directors, shareholders, partners, successors, and permitted assigns (the “Subscriber Indemnified Parties”) harmless from and against any Losses incurred by the Subscriber Indemnified Parties, and shall defend the Subscriber Indemnified Parties against any Claims arising out of or in connection with: (1) allegations that the Services or any other materials provided to Subscriber, its Affiliates, Representatives or Authorized Users infringe any copyright, trademark, patent or other intellectual property rights, or misappropriate any trade secret of any third party (an “Infringement Claim”), (2) the gross negligence, fraud or willful misconduct of PartnerOptimizer, its Affiliates or Representatives (including any employees of the foregoing), (3) violation by PartnerOptimizer, its Affiliates or Representatives (including any employees or the foregoing) of any laws and regulations applicable to PartnerOptimizer as a provider of the Services, and (4) the unauthorized disclosure, publication or dissemination by PartnerOptimizer, its Affiliates or Representatives (including any employees or the foregoing) of the Confidential Information of Subscriber or its Affiliates.
Upon assertion of any Claim or the commencement of any Claim against any PartnerOptimizer Indemnified Party or Subscriber Indemnified Party (each, an “Indemnitee”) that may give rise to liability of an indemnifying party under the Agreement (an “Indemnitor”), the Indemnitee shall notify the Indemnitor promptly in writing of any such Claim, give the Indemnitor sole control of the defense thereof and any related settlement negotiations (except that Indemnitor shall not enter into any settlement or consent to the entry of any judgment that would require an Indemnitee to admit liability, pay any monies out-of-pocket, or assume any obligation or relinquish any right, without the prior written consent of such Indemnitee), and cooperate and, at Indemnitor’s reasonable request and expense, assist in such defense. If the Services become, or in PartnerOptimizer’s opinion are likely to become, the subject of an Infringement Claim, PartnerOptimizer may, after consultation with Subscriber regarding Subscriber’s preference but still in its sole discretion, either procure for Subscriber the right to continue using the Services, replace or modify the Services so that they become non-infringing, or terminate the Agreement upon written notice to Subscriber, and refund Subscriber any unearned Subscription Fees pro-rated for the applicable period. Notwithstanding the foregoing, PartnerOptimizer will have no obligation with respect to an Infringement Claim to the extent that such infringement or misappropriation is caused by (a) use of the Services by Subscriber or any Authorized User in violation of the Agreement, (b) any use of the Services by Subscriber or any Authorized User in combination with products, equipment, software, or data not supplied by PartnerOptimizer, if such infringement would not have occurred but for the combination with other products, equipment, software or data, or (c) any modification of the Service by Subscriber, its Affiliates or Authorized Users, except where, in the case of both (b) and (c), that (1) PartnerOptimizer knew that such modification or combination would be or was used by or on behalf of the Subscriber, its Affiliates or Authorized Users and did not object in writing to Subscriber, or (2) PartnerOptimizer, its Affiliates or Representatives authorized or recommended such modification or combination. This Section 10.2 sets forth Subscriber’s sole remedy, and PartnerOptimizer’s sole obligation, in the event of any such Infringement Claim.
11. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR LOSSES ARISING FROM (A) A PARTY’S, ITS AFFILIATE’S OR ITS REPRESENTATIVE’S GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT OR FRAUD, (B) THE PARTIES’ INDEMNIFICATION OBLIGATIONS IN SECTION 10 ABOVE, OR (C) VIOLATION OF LAW BY A PARTY, ITS AFFILIATES OR REPRESENTATIVES (THE “DAMAGES EXCEPTIONS”), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE, EXEMPLARY, MULTIPLE, INDIRECT, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING FROM OR RELATING TO THE AGREEMENT, WHETHER FORESEEABLE OR UNFORESEEABLE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PARTNEROPTIMIZER’S TOTAL LIABILITY TO THE SUBSCRIBER FOR ANY AND ALL CLAIMS ARISING UNDER THE AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID OR PAYABLE TO PARTNEROPTIMIZER BY SUBSCRIBER UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM.
12. RECORD KEEPING
During the Term of the Agreement, Subscriber shall maintain complete and accurate records of Subscriber’s use of the Deliverables and PartnerOptimizer Technology sufficient to verify compliance with the Agreement.
13. MISCELLANEOUS PROVISIONS
14.1 Assignment. PartnerOptimizer may assign the Agreement to an Affiliate or a successor-in-interest pursuant to an acquisition of it (whether by merger, stock sale, or asset sale) without Subscriber’s consent provided that the assignee agrees in writing to be bound by the terms of this agreement. No rights or obligations under the Agreement may be assigned or delegated except as provided in this section without the prior written consent of the other party, not unreasonably withheld or delayed, and any assignment or delegation in violation of this section shall be void.
14.2 Notices. Subscriber shall provide an email address for notices under the Agreement. All notices or other communications permitted or required to be given hereunder shall be sent by electronic mail to the email address provided by each party for such purpose and shall be deemed given when sent. Notices to PartnerOptimizer shall be sent to email@example.com.
14.3 Governing Law, Jurisdiction. Subject to Section 9, this Agreement shall be governed by and construed in accordance with the laws of the State of California without giving effect to principals of conflicts of laws and the parties hereby submits to the exclusive jurisdiction of the federal and state courts situated in San Diego County, CA, and the applicable service of process.
14.4 Currency. All monetary amounts specified in the Agreement are in United States dollars unless otherwise expressly stated.
14.5 Entire Agreement. The Agreement constitutes the entire agreement and understanding of the parties and supersedes all prior communications, understandings, and agreements relating to the subject matter hereof, whether oral or written.
14.6 Amendment. No amendment, modification or waiver of any provision of the Agreement shall be valid except if made in a writing signed by authorized representatives of PartnerOptimizer and Subscriber. Notwithstanding anything to the contrary contained herein, no click-wrap, click-through or shrink-wrap agreements or any online terms on PartnerOptimizer’s website or in the Services, or as may be delivered by Subscriber to PartnerOptimizer via any order form or otherwise, shall supersede, modify or amend the provisions of the Agreement and such terms and conditions shall be of no force or effect.
14.7 Force Majeure. Neither party nor any of its Affiliates will be liable for any delay or failure to perform any obligation under the Agreement to the extent such delay or failure results from any cause beyond its reasonable control, including, but not limited to, acts of God, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts of terrorism, or war (each, a “Force Majeure Event”), provided that (i) the non-performing party is without fault in causing or failing to prevent the occurrence of such Force Majeure Event; (ii) such occurrence could not have been prevented or circumvented through the use of reasonable measures or through the use of substitute services, alternate sources or work-around plans reasonably available to the non-performing party; and (iii) the non-performing party takes reasonable steps to remedy the delay or non-performance promptly. For the avoidance of doubt, a Force Majeure Event shall not include regulatory actions of governmental authorities, labor disputes, cyberattacks, or epidemics or pandemics (including, without limitation, coronavirus 2019 and any variants) and any related quarantines.
15. ACCEPTANCE, AUTHORIZATION & APPROVAL.
The person accepting the Agreement on behalf of Subscriber has been duly authorized to do so by all necessary corporate or other legally required action and has the power and authority to execute this Agreement on Subscriber’s behalf. The execution and delivery of the Agreement by Subscriber and the consummation of the transactions contemplated hereby have been duly and effectively authorized by all necessary corporate or other required action of each party. The obligations described in the Agreement are legal, valid and binding obligations of each party, enforceable against it in accordance with the terms described in the Agreement.