Guidde Terms of Service
Last Updated: June 1, 2024
These Guidde Terms of Service (the "Agreement") apply to, and govern, access to and use of the Service (defined below).
CUSTOMER IS AGREEING TO THIS AGREEMENT BY CLICKING ON THE "I ACCEPT" (OR SIMILAR) BUTTON, BY CHECKING A CHECKBOX FOR THE ACCEPTANCE OF THIS AGREEMENT, OR OTHERWISE BY REGISTERING FOR OR ACCESSING THE SERVICE, WHICHEVER IS EARLIER.
This Agreement also applies to, and governs, the executed ordering document (such as an Order Form, Sales Order, Proposal, or Quote) to which they are attached, hyperlinked, or otherwise incorporated by reference (the "Order"), and this Agreement is hereby incorporated by reference into, and made a part of, such Order.
The Agreement constitutes a binding agreement between Guidde Incorporated (or, if applicable, the other Guidde entity specified in the Order) ("Company") and the customer specified in the Order or the Service registration page, as the case may be ("Customer"). Company and Customer may be collectively referred to herein as the "Parties", and each individually as a "Party". An individual entering into this Agreement on behalf of the Customer, represents that he/she has the right, authority and capacity to act on behalf of the Customer and to bind the Customer to this Agreement.
This Agreement applies to Customers who purchase a Subscription to the Service or to whom this Agreement becomes applicable on or after June 1, 2024. For previous versions of our Terms of Use, please see www.guidde.com/legal-20231001.
1. DEFINITIONS. The following capitalized terms have the meanings set forth below:
Affiliate" means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of, the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
1.2 "Content" means any text, data, information, reports, files, images, graphics, software code, or other content.
1.3 "Customer Content" means any Content submitted or uploaded to, or transmitted through, the Service, or otherwise provided or made available to Company, by or on behalf of Customer.
1.4 "Documentation" means the Service-related operational guides or manuals, which Company provides or makes available to Customer, in any form or medium. Documentation does not include any marketing, or other publicly available, materials. Unless the context requires otherwise, references in this Agreement to the "Service" shall be deemed to include the Documentation as well.
1.5 "Effective Date" means the date the Order is executed by the Parties, unless the Order itself specifies a different start/effective date; provided, however, that if, in connection with such Order, the date on which the Customer first accessed or used the Service, or set up an Account, was prior to Order execution, then the Effective Date shall be deemed to be such earlier date.
1.6 "Intellectual Property Rights" means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, whether registered or unregistered, and whether vested, contingent, or future) in and to inventions, discoveries, works of authorship, designs, software, technical information, databases, know-how, mask works, methods, branding, technology, and other intellectual property(collectively, "Intellectual Property"), and includes but is not limited to patents, copyrights and similar authorship rights, moral (and similar personal) rights, mask work rights, data and database rights, trade secret rights and similar rights in confidential information and other non-public information, design rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing.
1.7 "Law" means any federal, state, foreign, regional or local statute, regulation, ordinance, or rule of any jurisdiction.
1.8 "Output" means the results and output generated by the Services specifically for Customer and provided to a User based on Customer Content. For the avoidance of doubt, the Output shall not be deemed to include or extend to any Company IP (defined below).
1.9 "Privacy Policy" means the Company's privacy policy, currently available at https://www.guidde.com/privacy-policy.
1.10 "Service" means Company's generally available software-as-a-service (SaaS) offering, known as Guidde, and any related web applications, mobile applications, desktop applications, APIs, and other tools that Company makes generally available in connection therewith.
1.11 "Service Content" means any Content (excluding CustomerContent) appearing on or in the Service. Unless the context requires otherwise,references herein to the "Service" shall be deemed to include theService Content.
1.12 "Subscription Scope"means any Service-related usage or consumption limitations, entitlements, andparameters (for example, number of Users, available features andfunctionalities, etc.)specified in the Order.
1.13 "Site" means the Company's website, currently available at https://www.guidde.com.
1.14 "Usage Statistics" means any non-Customer-identifying information, data, reporting, suggestions, analyses, and/or intelligence relating to the operation, support, and/or Customer’s use, of the Service (such as metadata, query logs, aggregated data, analytics, etc.), as well as any resulting industry benchmarks, analytics, datasets, and models developed by or on behalf of Company.
1.15 "User" means Customer's (and/or, pursuant to Section 4.3 (Customer Affiliates), its Affiliates') employees and contractors who are authorized by Customer to use the Service, and for whom Customer (or Company, at Customer's request) has supplied a user identification and password for the Service.
2. ACCOUNT In order to access the Service, Customer may be giventhe opportunity (or otherwise be required) to generate an account by submittingthe information requested in the applicable online registration page or Serviceinterface ("Account"). Customer's Account registration may impose limitations on the number or types of Accounts; absent such limitations, Customer shall be entitled to a single administrator Account that will have administrative privileges over the Account ("Admin Account") and such number of user Accounts for each user (each, a "User Account"). Customer shall ensure that all information submitted during the registration process is, and will thereafter remain, complete and accurate. As between Company and Customer, Customer shall be solely responsible and liable for maintaining the confidentiality and security of its Account credentials, as well as for all activities that occur under or in such Account. Customer shall immediately notify Company in writing of any unauthorized access to, or use of, an Account, or any other breach of security.
3. SERVICE SUBSCRIPTION
3.1 General. Subject to the terms and conditions of this Agreement (including without limitation Customer's payment of all applicable Fees), Company grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right and license, during the Subscription Term (defined below), to access and use the Service, and view the Service Content, for Customer's internal use (collectively, the "Subscription"). Customer shall use the Service in accordance with the Documentation.
For the avoidance of doubt: (i) the Subscription is subject to the applicable Subscription Scope, and Customer shall not use any technical or other means within, or external to, the Service to exceed or circumvent the Subscription Scope; and (ii) the Service is only licensed or provided on a subscription basis (and is not sold) hereunder. Any rights not expressly granted to Customer herein are hereby reserved by Company and its licensors, and, except for the Subscription, Customer is granted no other right or license in or to the Service, whether by implied license, estoppel, exhaustion, operation of law, or otherwise. Company shall use reasonable efforts consistent with prevailing industry standards to provide the Service as intended. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control. Customer shall remain primarily responsible and liable for its Users' compliance with this Agreement, and any acts and omissions of such Users in connection with this Agreement shall also be deemed the acts and omissions as of Customer.
3.2 Customer Affiliates. Subject to (and without expanding) the Subscription Scope, Customer may permit its Affiliate to exercise Customer's Subscription rights under the Order, provided that: (a) such use is solely for the benefit of Customer or such Affiliate; and (b) such Affiliate agrees to be bound by the Service- and Subscription-related restrictions and limitations set forth in this Agreement, and further agrees that Company shall have no obligation or liability of any kind whatsoever towards such Affiliate. Customer shall remain primarily responsible and liable for its Affiliates' and Users' compliance with this Agreement, and any acts and omissions of such Affiliates and Users in connection with this Agreement shall also be deemed the acts and omissions as of Customer.
3.3 Usage Statistics. Company and its Affiliates may, during and after the Subscription Term, use Usage Statistics for quality control purposes, for enforcement of this Agreement, for analytics purposes , and for further improving Company's products and services.
3.4 Delivery and Hosting. The Service will be made available to Customer electronically (via the Site, via an API integration, or otherwise as elected by Company or as specified in the Order). The hosting of the Service may be provided by a third party cloud hosting provider selected by Company ("Hosting Provider"), and accordingly Customer Content may be processed by such Hosting Provider.
3.5 Features and Functionalities. Company may, from time to time, modify and replace the features and functionalities (but not material functionalities to which Customer is entitled under the Order, unless it improves the material functionality), as well as the user interface, of the Service. Some features and functionalities may in any event be restricted by geography or otherwise, in order for Company to comply with applicable Law or commitments to third parties. Customer agrees that its purchase hereunder is not contingent on the delivery of any future functionality or feature, or dependent on any oral or written statements made by or on behalf of Company regarding future functionalities or features.
4. PAYMENT
4.1. Fees. Customer agrees to pay Company the fees and other charges set forth in the Order (the "Fees").
4.2. Fee Increases. Company shall be entitled from time to time, and by written notice, to increase the Fees under the Order; provided, however, that the updated Fees shall apply to the next Order renewal, provided that such notice was given at least thirty (30) days prior to such renewal.
4.3. Payment Terms. Unless expressly stated otherwise in the Order: (a) all Fees are stated, and are to be paid, in US Dollars; (b) billing cycles for the Subscription are on an annual basis; (c) Company shall be entitled to invoice Customer for Fees in advance at the commencement of each billing cycle (except for Fees for overages, which are charged in arrears), and Customer shall pay each invoice within thirty (30) days of receipt of invoice; (c) all payments and payment obligations under this Agreement are non-refundable, and are without any right of set-off or cancellation; (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of the rate of one and a half percent (1.5%) per month or the highest amount permitted by applicable Law; and (e) Company shall be entitled to issue invoices (and any associated reporting) and billing notices via email to the applicable Customer contact email address specified in the Order and/or via a functionality of the Service.
4.4. Payment Dispute. If Customer believes that Company has invoiced Customer incorrectly, Customer must contact Company no later than thirty (30) days after receiving the invoice in which the alleged error appeared; otherwise Customer shall be deemed to have waived all claims in connection with the applicable invoice and payment.
4.5. Taxes. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon Company's net income. Customer must provide a valid tax exemption certificate if claiming a tax exemption. In the event that Customer is required by any Law applicable to it to withhold or deduct taxes for any payment under this Agreement, then the amounts due to Company shall be increased by the amount necessary so that Company receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction.
4.6. Payment Processing. Customer represents and warrants that all payment and billing information provided is (and will remain) complete and accurate, and Customer has obtained all necessary consents to enable the necessary payment method. If applicable to the payment method, payment of Fees may be processed through a third-party payment processing service (which will receive and process Customer's billing information), and additional terms may apply to such payments. Customer authorizes Company (and/or its designee) to: (a) request and collect payment (and to otherwise take other billing actions, such as refunds)from Customer on a recurring basis; and (b) make any inquiries Company deems necessary, from time to time, to validate Customer's designated payment method or financial information, in order to ensure timely payment of Fees (including, but not limited to, for the purpose of receiving updated payment details from Customer's payment, credit card, or banking account provider – such as, updated expiry date or card number).
5. CUSTOMER CONTENT/OUTPUT
5.1. Ownership. As between the Parties, Customer is the exclusive owner of all right, title and interest (including without limitation all Intellectual Property Rights) in and to the Customer Content and Output.
5.2. No Sensitive Data. Unless the Service specifically requests or requires otherwise, Customer shall ensure that no Customer Content includes or links to Sensitive Data. "Sensitive Data" means any (i) categories of data enumerated in Article 9(1) of the European Union's General Data Protection Regulation (Regulation 2016/679, aka the GDPR) or any successor law; (ii)credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards ("PCI DSS"); (iii) Nonpublic PersonalNonpublicPersonal Information (NPI) (as defined by the Gramm-Leach-Bliley Act and its implementing rules and regulations) or Personal Health Information (PHI) data (as defined by the Health Insurance Portability and Accountability Act and its implementing rules and regulations);or (iv) any data similar to the foregoing that is protected under foreign or domestic laws.
5.3. Responsibility for Customer Content. Customer is solely responsible for the legality, accuracy and quality of Customer Content, such as for ensuring that Customer’s collection, processing, storage and transmission Customer Content is compliant with all applicable Laws, as well as any and all privacy policies, agreements or other obligations Customer may maintain or enter into with its customers. Customer represents and warrants that: (a) no processing of Customer Content under this Agreement (whether by Company, its Affiliates, or if applicable the Hosting Provider) will violate any Law, proprietary right, or privacy right; and (b) it has obtained and will maintain all required consents and licenses, and will maintain all ongoing legal bases under relevant privacy Laws (if applicable), necessary to provide, make available, and otherwise expose Customer Content to Company, its Affiliates, and the Hosting Provider(if applicable).
5.4. License to Customer Content and Output. Customer hereby grants to Company and its Affiliates a worldwide, non-exclusive, royalty-free, paid-up, sublicensable (to Company's data sub processors, Hosting Providers, as well as to third party service providers engaged by Company in the provision of the Service),irrevocable right and license to copy, process, create derivative works of, modify, adapt, and otherwise use your Customer Content and Output (in any media, now known or hereafter developed), during the Term of this Agreement, for the purpose of performing under this Agreement.
5.5. Privacy Policy. The Privacy Policy outlines Company’s practices towards handling any personal information that Customer may provide to the Company and/or that Company may collect in the course of providing the Service to Customer hereunder. For such purposes to the maximum extent permitted by applicable Law, Customer hereby consents to the Privacy Policy, and the Privacy Policy is hereby incorporated by reference.
6. COMPANY INTELLECTUAL PROPERTY Company (and/or its licensors and suppliers, asapplicable) is, and shall be, the sole and exclusive owner of all right, titleand interest (including without limitation all Intellectual Property Rights) inand to the following (collectively, "Company IP"): (a) the Service (and all underlying Intellectual Property); (b) the Service Content;(c) Company's Confidential Information; (d) any feedback, suggestions, or ideas for or about the Service or Service Content (collectively, "Feedback"); (e) Usage Statistics; and (f) any improvements, derivative works, enhancements, and/or modifications of/to any of the foregoing, in each case regardless of inventorship or authorship. To the extent any of the foregoing Intellectual Property Rights do not automatically vest in Company, Customer hereby irrevocably assigns (and shall assign) same to Company (and its designees, successors, and assigns), and undertakes to do all things reasonably requested by Company (including without limitation executing, filing, and delivering instruments of assignment and recordation), at Company's expense, to perfect such ownership rights.
As a condition to (and except as expressly permitted by) the Subscription, Customer shall not do (or permit or encourage to be done) any of the following Subscription restrictions (in whole or in part) (collectively, the "Usage Restrictions"): (a) copy, create public Internet “links” to, "frame", or "mirror" any Company IP; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available any Company IP to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate any Company IP; (d) modify, adapt, translate, or create a derivative work of any Company IP; (e) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public Apis, ideas, or algorithms) of, any Company IP; (f) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in any Company IP; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of any Company IP; (h) use any Company IP to develop any service or product that is the same as (or substantially similar to), or otherwise competitive with, the Service; (i)store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Service, or use any robot, spider, scraper, or any other automated means to access the Service; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of Users or servers/machines that directly access or use the Service (sometimes referred to as 'virtualisation', 'multiplexing' or 'pooling'); (k) forge or manipulate identifiers in order to disguise the origin of any Customer Content; (l) take any action that imposes or may impose (as determined in Company's reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Service, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure; (m) use the Service in connection with any stress test, penetration test, competitive benchmarking or analysis, or vulnerability scanning, or otherwise publish or disclose (without Company's prior express written approval) any the results of such activities or other performance data of the Service; or (n) use the Service to circumvent the security of another person’s network/information, develop malware, unauthorized surreptitious surveillance, data modification, data exfiltration, data ransom or data destruction. The Customer further agrees not to use the Service for any illegal activities, including but not limited to activities that promote hate, violence, harassment, or discrimination against individuals or groups.
7. CONFIDENTIALITY
Each Party (as “ReceivingParty”) will: (a) protect the Confidential Information (defined below) of the other Party (the "Disclosing Party") that the Receiving Party receives, using the same degree of care that Receiving Party uses to protect its own Confidential Information of like kind (but not less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of Receiving Party and its Affiliates' employees, contractors, and professional advisors (such as lawyers and accountants) who need that access for purposes consistent with this Agreement and who are bound by obligations of confidentiality to the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by Law or court order to disclose Confidential Information, then Receiving Party shall, to the extent legally permitted, provide Disclosing Party with advance written notice and cooperate in any effort to obtain confidential treatment of the Confidential Information including, without limitation, the opportunity to seek appropriate administrative or judicial relief. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. "Confidential Information" means all information that is identified as confidential at the time of disclosure by the Disclosing Party or reasonably should be known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and/or the circumstances surrounding the disclosure. For the avoidance of doubt, the Products and the Service are Confidential Information of Company. Confidential Information shall not, however, include information that: (a) was rightfully in Receiving Party's possession or known to it (on a non-confidential basis) prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (d) is independently developed by the Receiving Party.
8. DISCLAIMERS
8.1. THE SERVICE, SERVICE CONTENT, ANY OUTPUT GENERATED BY THESERVICE, AS WELL AS ANY OTHER GOODS AND SERVICES PROVIDED OR MADE AVAILABLE BYOR ON BEHALF OF THE COMPANY HEREUNDER (COLLECTIVELY, THE "COMPANYMATERIALS") ARE PROVIDED ANDMADE AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHALL DEFECTS, AND ALL EXPRESS, IMPLIED AND STATUTORY CONDITIONS AND WARRANTIES(INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY,SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIETPOSSESSION, NON-INFRINGEMENT, OR QUALITY OF SERVICE, OR THAT OTHERWISE ARISEFROM A COURSE OF PERFORMANCE OR USAGE OF TRADE) ARE HEREBY DISCLAIMED BYCOMPANY AND ITS LICENSORS.
81.2. COMPANY DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE ORCONDITION: (A) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY,TIMELINESS, COMPLETENESS, OR QUALITY OF COMPANY MATERIALS; (B) THAT CUSTOMER'SUSE OF COMPANY MATERIALS WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; (C)REGARDING THE OPERATION OF ANY CELLULAR NETWORKS, THE PASSING OR TRANSMISSIONOF DATA VIA ANY NETWORKS OR THE CLOUD, OR ANY OTHER CELLULAR OR DATACONNECTIVITY PROBLEMS; OR (D) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH,ANY LAWS, REGULATIONS, OR OTHER GOVERNMENT OR INDUSTRY RULES OR STANDARDS.COMPANY WILL NOT BE LIABLE OR OBLIGATED IN RESPECT OF DELAYS, INTERRUPTIONS,SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET ANDELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO HOSTING PROVIDERS OR PUBLICNETWORKS.
9. LIMITATION OF LIABILITY
9.1. EXCEPT FOR BREACHES OF CONFIDENTIALITY UNDER SECTION 7 (CONFIDENTIALITY), CUSTOMER'S BREACH OF THE SUBSCRIPTION(INCLUDING WITHOUT LIMITATION A BREACH BY CUSTOMER OF THE USAGE RESTRICTIONS),AND/OR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY,ITS AFFILIATES, OR LICENSORS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH,THIS AGREEMENT, FOR:
(a) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
(b) ANY LOSS OF PROFITS, BUSINESS, OPPORTUNITY, REVENUE, CONTRACTS,ANTICIPATED SAVINGS, OR WASTED EXPENDITURE;
(c) ANY LOSS OF, OR DAMAGE OR INTERRUPTION TO, DATA, NETWORKS, INFORMATIONSYSTEMS, REPUTATION, OR GOODWILL; AND/OR
(d) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
9.2. THE COMBINED AGGREGATE LIABILITY OF COMPANY AND ALL COMPANY AFFILIATESUNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THEAMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE GIVING RISE TOLIABILITY (OR, IF NO FEES APPLY, ONE HUNDRED US DOLLARS (USD$100)).
9.3. THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) TO THE MAXIMUMEXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, ORSHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C)EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D)REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT(INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY),STRICT LIABILITY, MISREPRESENTATION, OR OTHERWISE.
10. INDEMNIFICATION
10.1. Indemnification by Company. In the event that, during the term of this Agreement and the six (6) month period thereafter, a third party makes or institutes any claim, action, or proceeding against Customer alleging that Customer's authorized access and use of the Service in accordance with this Agreement infringes such third party's copyright or patent (an "Infringement Claim"), Company shall:
(a) At its own expense, defend Customer against the Infringement Claim; and
(b) Indemnify and hold harmless Customer for any amount finally awarded against or imposed upon Customer by the court (or otherwise agreed in settlement) under the Infringement Claim (provided, however, that any insurance recoveries and/or indemnity or contribution amounts received by the Customer prior to receipt of indemnification by Company, shall reduce the indemnifiable amount to be paid by Company by the amount of such recovery). Company will have no obligation or liability under this Section (Indemnification by Company) to the extent that the Infringement Claim is based on or results from: (i) a modification to the Service not made by Company; (ii) the combination of the Service with any third party product or service; (iii) any Customer instructions or specifications; (iv) any Customer breach under this Agreement; and/or (v) any failure by Customer to use the most current version of the Service made available by Company pursuant to this Agreement.
Should the Service (in whole or in part) become, or in Company's opinion be likely to become, the subject of an Infringement Claim or an injunction prohibiting Customer's use of the Service, then Customer permits Company, at Company's option and expense, to either: (x) obtain for Customer the right to continue using the Service (or part thereof, as applicable); or (y) replace or modify the Service (or part thereof, as applicable) so that its use hereunder becomes non-infringing; provided, howeverprovided,however, that if (x) and (y) are not, in Company's opinion, commercially feasible, Company may terminate this Agreement upon written notice to Customer, and, following Customer's compliance with all post-termination obligations, Customer shall be entitled to receive a pro-rated refund of any prepaid Subscription-related Fees hereunder based remaining period of the Subscription Term.
10.2. Indemnification by Customer. If Company or its Affiliates (or their respective directors, officers, or employees) (collectively, "Company Indemnitees")incur or suffer any loss or liability whatsoever (including but not limited toa fine, penalty, damages award, legal costs and expenses such as attorney's fees, etc.) under or in connection with any demand, claim, suit, or proceeding made or brought (whether by an individual, organization, or governmental agency) against a Company Indemnitee (each, a "MisuseClaim"), and such Misuse Claim arises directly or indirectly from any breach by Customer under this Agreement and/or from Customer's use of the Service, Customer agrees to:
(a) At its own expense, defend Company Indemnitees against the Misuse Claim; and
(b) Indemnify and hold harmless Company Indemnitees for such loss and liability, as well as for any amount finally awarded against or imposed upon Company Indemnitees by the court (or otherwise agreed in settlement) under the Misuse Claim.
10.3. Indemnity Procedure. As a condition to indemnification under this Section (Indemnification),the indemnified Party agrees: (A) to provide the indemnifying Party with prompt written notice of the Infringement Claim or Misuse Claim, as applicable (the "Claim"); (B) to cede to the indemnifying Party sole control of the defense and settlement of the Claim(except that any settlement shall require the indemnified Party's prior written consent, not to be unreasonably withheld, conditioned or delayed); (C) to provide the indemnifying Party with all information and assistance reasonably requested by it; and (D) not to admit any liability under (or otherwise compromise the defense of) the Claim. The indemnified Party may participate in the defense of the Claim at its own cost and expense.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue for the duration of the Subscription Term (defined below).
11.2. Renewals. Unless specified otherwise in the Order, upon expiration of the initial Subscription term specified in the Order (the "Initial SubscriptionInitialSubscription Term"), the Order and Subscription shall automatically renew for successive renewal terms of equal length as the Initial Subscription Term (each a "Renewal Subscription Term", and together with the Initial Subscription Term, the "Subscription Term"),unless either Party notifies the other Party in writing that it chooses not to renew ("Non-Renewal Notice"); provided, however, that the Non-Renewal Notice is given at least sixty (60) days prior to the end of the then-current Subscription Term. At the commencement of each Renewal Subscription Term, Company shall be entitled to invoice Customer for the applicable Fees therefor.
11.3. Termination. This Agreement may be terminated as follows:
(a) In accordance with any termination rights specified the Order;
(b) Either Party may terminate this Agreement for cause upon written notice if the other Party commits a material breach under this Agreement, and fails to cure such breach within thirty (30) days after receiving written notice from the other Party alleging the breach. The foregoing 30-day cure period shall: (i) not be required if the breach is not curable; and (ii) be reduced to ten (10) days if the material breach in question is non-payment by Customer;
(c) Either Party may terminate this Agreement upon written notice to the other Party upon the occurrence of any of the following events in respect of such other Party: (i) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (ii) the other Party makes a general assignment for the benefit of its creditors; (iii)the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (iv) the other Party is liquidating, dissolving or ceasing normal business operations; and/or
(d) Company may terminate this Agreement convenience upon thirty (30) days' prior written notice to Customer. In case of such termination for convenience by Company, Customer shall be entitled to receive a pro-rated refund of any pre-paid and unutilized Fees under the Order based on the remaining period of the then-current Subscription Term.
11.4. Suspension. Company reserves the right to temporarily suspend provision of the Service: (a) if Customer is seven (7) days or more overdue on a payment; (b) if Company deems such suspension necessary as a result of Customer’s breach of the Subscription (such as a breach under Section 4.2 (Restrictions)); (c) if Company reasonably determines suspension is necessary to avoid material harm to Company, to its other customers, or to the Service, including if the Service's cloud infrastructure is experiencing denial of service attacks or other attacks or disruptions outside of Company’s control, or (d) as required by Law or at the request of governmental entities.
11.5. Effect of Termination. Upon termination of this Agreement for any reason: (a) the Subscription shall automatically terminate; (b) Customer shall cease all access and use of the Service and certify in a signed writing that it has done so; and (c) Customer shall pay any outstanding Fees and other charges that accrued as of termination (even if termination takes effective prior tote end of a billing cycle), which shall become immediately due and payable, and, if necessary Company shall issue a final invoice therefor. Company shall have no further obligation to make Customer Content available after the effective date of termination of this Agreement. 11.6. Survival. Sections 5 (Customer Content/Output) through 12 (Miscellaneous) shall survive termination of this Agreement, as shall any right, obligation or provision that is expressly stated to so survive or that ought by its nature to survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.
12. MISCELLANEOUS
12.1 Entire Agreement. This Agreement (and its annexes) represents the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the Parties with respect to such subject matter. In entering into this Agreement, neither Party is relying on any representation or statement not expressly specified in this Agreement. Any terms or conditions (whether printed, hyperlinked, or otherwise) in any purchase order or other standardized business forms, which purport to supersede, modify, or supplement this Agreement, shall be deemed rejected, void and of no effect (even if Company signs or acknowledges such document). Customer shall include the Order reference/number in any purchase order issued to Company. The section and subsection headings used in this Agreement are for convenience of reading only, and shall not be used or relief upon to interpret this Agreement. This Agreement may be executed in any number of counterparts (including digitally, electronically scanned and e-mailed PDF copies, and any similarly signed and electronically or digitally transmitted copies) each of which will be considered an original, but all of which together will constitute one and the same instrument.
12.2. Amendment. This Agreement may only be modified or supplemented by a writteninstrument referencing this Agreement, which is duly signed by each Party.
12.3. Precedence. To the extent of any conflict or inconsistency between a provision in this Agreement on the one hand, and a provision in the Order on the other hand, the former shall prevail (except to the extent expressly stated otherwise in the Order, or to the extent related solely to the commercial or technical particulars of the Order, in which case the latter shall prevail).
12.4. Third Party Content. The Service may present, or otherwise allow Customer to view, access, link to, and/or interact with, Content from third parties and other sources that are not owned or controlled by Company (such Content, "Third Party Content"). The Service may also enable Customer to communicate with the related third parties. The display or communication to Customer of such Third Party Content does not (and shall not be construed to)in any way imply, suggest, or constitute any sponsorship, endorsement, or approval by Company of such Third Party Content or third party, nor any affiliation between Company and such third party. Company shall have no obligation or liability of any kind whatsoever for Third Party Content or for the third party's policies, practices, actions, or omissions. If Customer enables or uses Third Party Content with the Service, Company will allow the Third Party Content providers to access and use Customer Content as required for the interoperation of the Third Party Content and the Service. Any Third Party Content provider’s use of Customer Content is subject to the applicable agreement between Customer and the Third Party Content provider.
12.5. Third Party Software. The Service may include what is commonly referred to as 'open source' software. Under some of their respective license terms and conditions, Company may be required to provide Customer with notice of the license terms and attribution to the third party, in which case Company may provide Customer with such information (whether via the Service, via the Site, or otherwise). Notwithstanding anything to the contrary herein, use of the open source software will be subject to the license terms and conditions applicable to such open source software, to the extent required by the applicable licensor (which terms and conditions shall not restrict the license rights granted to Customer hereunder), and to the extent any such license terms and conditions grant Customer rights that are inconsistent with the limited rights granted to Customer in this Agreement, then such rights in the applicable open source license shall take precedence over the rights and restrictions granted in this Agreement, but solely with respect to such opensource software. Company will comply with any valid written request submitted by Customer to Company for exercising any rights Customer may have under such license terms and conditions.
12.6. Assignment. This Agreement may not be assigned by Customer, in whole or in part, without Company's prior express written consent. Company may assign this Agreement, in whole or in part, without restriction or obligation. Furthermore, any Company obligation hereunder may be performed (in whole or in part), and any Company right (including invoice and payment rights) or remedy may be exercised (in whole or in part), by an Affiliate of Company. Any prohibited assignment will be null and void. Subject to the provisions of this Section (Assignment), this Agreement will bind and inure to the benefit of each Party and its respective successors and assigns.
12.7. Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and are hereby disclaimed. Any claim, dispute or controversy between the Parties will be subject to the exclusive jurisdiction and venue of the courts located in New York County, NY, and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, each Party may seek equitable relief in any court of competent jurisdiction. EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO TRIAL OF ANY ISSUE BY JURY. EXCEPTTO SEEK EQUITABLE RELIEF, PAYMENT OF FEES, OR TO OTHERWISE PROTECT OR ENFORCE APARTY'S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, NO ACTION,REGARDLESS OF FORM, UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORETHAN ONE (1) YEAR AFTER THE DATE ON WHICH THE CORRESPONDING LIABILITY AROSE. Any claims or damages that Customer may have against Company shall only be enforceable against Company, and not any other entity or Company's officers, directors, representatives, employees, or agents.
12.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) the Parties agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction, and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
12.9. Waiver and Remedies. No failure or delay on the part of either Party in exercising any right or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof, or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing, duly signed by the waiving Party, and will be valid only in the specific instance in which given. Except as may be expressly provided otherwise in this Agreement, no right or remedy conferred upon or reserved by either Party under this Agreement is intended to be, or will be deemed, exclusive of any other right or remedy under this Agreement, at law, or in equity, but will be cumulative of such other rights and remedies.
12.10. Supplemental Terms. Features and functionalities may be accompanied by separate or additional terms and conditions ("Feature Specific Terms"). Third Party Content may be accompanied by separate or additional terms and conditions ("Third Party Content Terms", and together with Feature Specific Terms, "Supplemental Terms"). Supplemental Terms may be set forth in the Order and/or may require Customer's acceptance (via the Service) prior to Customer accessing the applicable feature, functionality, or Third Party Content. Except to the extent expressly stated otherwise within the Supplemental Terms, all Supplemental Terms apply in addition to (and not instead of) this Agreement.
12.11. Co-Marketing. You agree to participate in reasonable marketing activities that promote the benefits of the Services to other potential customers and the use of your name and logo on Guidde's website and in Guidde promotional materials. You agree that Guidde may disclose you as a customer of Guidde.
12.12. No Third Party Beneficiaries. Except as may be otherwise expressly provided in this Agreement (such as Company's Affiliates), there shall be no third-party beneficiaries of or under this Agreement.
12.13. Relationship. The relationship of the Parties is solely that of independent contractors, neither Party nor its employees are the servants, agents, or employees of the other, and no exclusivities arise out of this Agreement. Nothing in this Agreement shall be construed to create a relationship of employer and employee, principal and agent, joint venture, franchise, fiduciary, partnership, association, or otherwise between the Parties. Except to the extent required by Company in connection with the provision of the Service and/or the performance of the Company's obligations hereunder, neither Party has any authority to enter into agreements of any kind on behalf of the other Party and neither Party will create or attempt to create any obligation, express or implied, on behalf of the other Party.
12.14. Force Majeure. Company shall not be liable or be deemed in breach for any failure to perform due to circumstances or causes beyond its reasonable control including, but not limited to, strikes, shortages, riots, insurrection, fires, flood, storms, explosions, acts of God, war (declared or undeclared), government or quasi-governmental authorities actions, riot, terrorism, earthquakes, explosions, power outages, pandemic or epidemic (or similar regional health crisis), or any other cause that is beyond the reasonable control of Company. For the avoidance of doubt, any problems relating to hosting of the Service by a third party is beyond the reasonable control of Company.
12.15. Notices. Any notice or communication required or permitted under this Agreement will be in writing to the addresses set forth in this Agreement (or at such other address as may be given in writing by either Party), and will be deemed to have been received by the addressee upon: (a)personal delivery; (b) the second business day after being mailed or couriered; or (c) the day of sending by email, except for notices of breach (other than for non-payment) or an indemnifiable claim, which must be made by mail or courier. Email notifications to Company shall be to hello@guidde.com. Company may also give Customer notices via Customer's Account and/or via postings on or through the functionality of the Service (and such notices shall be deemed given immediately).
12.16. Export Compliance. Customer represents and warrants that: (a) it is not a resident of, and will not access or use the Service in, a country that the U.S. government has embargoed for use of the Service, and that Customer is not a person or entity named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) its country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to Company. Customer shall not transfer, export, re-export, import, re-import or divert the Service in violation of any Export Control Laws(defined below), and shall not transfer, export, re-export, import, re-import or divert the Service to Lebanon, Syria, Iran, Iraq, Sudan, Yemen, Cuba, or North Korea (or other countries specifically designated in writing by Company from time to time). In the event of a breach under this Section (Export Compliance), Customer agrees to indemnify and hold harmless Company and all Company Affiliates (and their respective directors, officers, and employees)for any fines and/or penalties imposed upon Company or a Company Affiliate (or such persons) as a result of such breach. "Export Control Laws" means all applicable export and re-export control Laws applicable to Customer and/or Company or its Affiliates, as well as the United States' Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.
12.17. Customer Resources. Except for the Service, Customer shall be solely responsible: (a) for providing all hardware, software, systems, assets, facilities, and ancillary goods and services needed for Customer to access and use the Service; (b) for ensuring their compatibility with the Service; and (c) for obtaining (and maintaining) all consents and licenses necessary to exercise Customer's rights under the Subscription. In the event Company is legally or contractually required to modify or replace features or functionalities of the Service in order to ensure the Service complies with the terms of service or privacy policies of various platforms, networks and/or websites, Customer shall be responsible for making all necessary changes to Customer’s hardware, software, systems, assets, and facilities in order to continue using the Service.
12.18. Expense. Except as may be expressly stated otherwise in this Agreement, each Party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of this Agreement (and any documents referred to in it).
12.19. Government Users. If Customer is a U.S. government entity, or this Agreement otherwise becomes subject to the Federal AcquisitionRegulations (FAR), Customer acknowledges that the Service constitutes “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212, DFARS 252.227-7014 and DFARS 227.7202. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce ,release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Service shall be as provided in this Agreement. If a government agency needs additional rights, it must negotiate a mutually acceptable signed written addendum to this Agreement specifically granting those rights.