Effective: March 2022
Please read these General Terms carefully because they govern how Join, Inc., a Delaware corporation (“Company”) will provide or make available and you in your capacity as a customer of the Company or representative of such customer (“Customer”) will receive Services during the Term. The specific Services to be provided hereunder are identified in the initial Order Form entered into between the Company and Customer. For the avoidance of doubt, such initial Order Form is issued under and subject to all of the terms and conditions of these General Terms. From time to time during the Term, the parties may enter into an SOW or a subsequent Order Form for Company to provide or make available additional Services (including for New Features to the Solution identified in the Order Form) hereunder, in each case, which will be incorporated by reference into this Agreement and governed by and subject to the terms and conditions of these General Terms.
By accessing or using the Services, Customer agrees to be bound by these General Terms. Customer represents and warrants that it has the authority enter into and be bound by these General Terms.
Capitalized terms will have the meanings set forth in Schedule 1 (Definitions), or in the section where they are first used.
- Solution. Subject to the terms and conditions of this Agreement, Company hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 12.5) right to during the Term, solely for Customer’s internal business purposes and in accordance with the limits on Annual Subscription Value and any other limitations or restrictions (if any) set forth in the Order Form (a) to access and use the Solution in accordance with the Documentation; (b) to use the Licensed Materials in accordance with any additional instructions or limitations set forth therein and (c) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the Solution. On or as soon as reasonably practicable after the Effective Date, Company will provide to Customer the necessary passwords, security protocols, technical information, and policies and network links or connections (“Access Protocols”) to allow Customer and its Authorized Users to access the Solution. Customer will be responsible for the security of all such Access Protocols. Customer will also use commercially reasonable efforts to prevent unauthorized access to, or use of, the Solution and notify Company promptly of any such unauthorized use known to Customer. Customer agrees that Company may automatically update the Solution, and this Agreement will apply to all such updates.
- Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Solution, Licensed Material or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Solution or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Solution or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Solution, except as permitted by law; (e) interfere in any manner with the operation of the Solution or the hardware and network used to operate the Solution; (f) modify, copy or make derivative works based on any part of the Solution or Documentation; (g) access or use the Solution to build a similar or competitive product or service; (h) attempt to access the Solution through any unapproved interface; or (i) otherwise use the Solution, Licensed Material, or Documentation in any manner that exceeds the scope of use permitted under Section 1.1 or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Customer acknowledges and agrees that the Solution will not be used, and are not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions. Customers will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Company or its licensors on the Licensed Material or any copies thereof.
- Authorized Users Use of the Services. Customer acknowledges and agrees that its Authorized Users’ access to and use of the Services is subject to Join’s Terms of Service located here: https://join.build/terms (the “Terms of Service”). Each Authorized User will be required to accept the Terms of Service prior to being able to access and use the Services. Customer is responsible for the use of the Services by its Authorized Users and for its Authorized Users’ compliance with this Agreement and the Terms of Service.
- Support Services; Training; Professional Services; Other Projects. Subject to the terms and conditions of this Agreement and during the Term, Company will provide support for the Services as outlined in the Support Policy available at https://join.build/support-policy-march2022 (the “Support Policy”). Company provides Authorized Users training through self-paced online tutorials and help documents at https://success.join.build, and instructor-led public webinars. If the parties have agreed to Company’s provision of Professional Services, the details of such Professional Services will be set out in the Order Form or a mutually executed SOW, and the additional professional services terms available at https://join.build/professional-services-terms-march2022 will apply (the “Professional Services Terms”). Company may, at its sole discretion, offer (for purchase) additional support services, private training or Customer Content import services, which terms and Fees will be set forth in the Order Form or in a mutually executed SOW.
- Administrators. Customer and each Administrator authorizes Company to rely upon communications from any Administrator with respect to the Services, including, but not limited to, instructions to delete or add Authorized Users, setting permissions, and controlling access of Authorized Users. Company may disclose Customer Content to any Administrator. Company may assume that any Administrator has authority to act on Customer’s behalf with respect to the Services without further notice from Customer. Company will have no liability to Customer or any other person for any actions Company takes in reasonable reliance on communications received from an Administrator.
- Intellectual Property
- Ownership. The Solution, Licensed Materials and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Company and its suppliers. All rights in and to the Solution and Documentation not expressly granted to Customer in this Agreement are reserved by Company and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Solution, Documentation, or any part thereof.
- Open Source Software. Certain items of software may be provided to Customer with the Solution and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this Agreement. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. In the event of a conflict or inconsistency with respect to Open Source Software between the terms and conditions of this Agreement and the applicable end-user license, the applicable end-user license shall govern and control.
- Feedback. Customer hereby grants to Company a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Services.
- Fees and Expenses; Payments
- Fees. Customer will pay to Company the fees set forth in the Order Form (“Fees”). Except as otherwise provided in the Order Form or in the billable projects policy available at https://join.build/billable-projects-policy-march2022 (the “Billable Projects Policy”), all Fees are billed at the end of the month due and payable within thirty (30) days of the date of the invoice. Fees will be paid in U.S. dollars. Company will be reimbursed only for expenses that are expressly provided for in the Order Form or SOW or that have been approved in advance in writing by Customer, provided Company has furnished such documentation for authorized expenses as Customer may reasonably request. Company reserves the right (in addition to any other rights or remedies Company may have) to discontinue the Solution and suspend all Authorized Users’ and Customers access to the Services and Projects, if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Unpaid Fees may be considered a material breach as set forth in Section 9.2. Without limiting this Section 3.1, except as set forth in the Order Form, any amounts not paid when due will bear interest at the rate of one- and one-half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times.
- Fee Adjustments at Renewal. Company may increase or decrease the Fees for a Renewal Term upon written notice to Customer at least sixty (60) days prior to the commencement of that Renewal Term. Adjustments to Fees will be based on the then-current Services list price and on actual usage of the Services during the current Term based on Project Metering calculations defined in the Billable Projects Policy, and/or the anticipated Annual Subscription Value usage expected for the next Renewal Term. If Customer does not agree to the Fee Adjustment for the next Renewal Term, Customer may choose to terminate this Agreement at the end of the Initial Term or then current Renewal Term, as set forth in Section 9.1.
- Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Company’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees, the provision of the Services, or the license of the Solution to Customer. Customer will make all payments of Fees to Company free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Company will be Customer’s sole responsibility, and Customer will provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as the Company may reasonably request, to establish that such taxes have been paid.
- Audit. Company may audit Customer’s Annual Subscription Value and use of Services to ensure compliance with this Agreement. Company will give Customer advance notice of any such audit and will conduct the audit during normal business hours and at Company’s expense. Customer agrees to reasonably cooperate with and assist Company upon receipt of a notice of audit. If any such audit discloses any underpayment by Customer as determined by Section 3 and the Billable Projects Policy or usage exceeding Customer’s subscription as stated on the Order Form, Company may invoice Customer and Customer shall immediately pay Company such underpaid amount, together with interest thereon at the rate specified in Section 3.1.
- Customer Content and Responsibilities
- License; Ownership. Customer is solely responsible for any and all obligations with respect to the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Content. Customer will obtain all third party licenses, consents and permissions needed for Company to use Customer Content for the purposes set forth in this Agreement. Customer grants Company a non-exclusive, worldwide, royalty-free and fully paid license (a) to use Customer Content as necessary for purposes of providing and improving the Services to Customer during the Term, and (b) use Customer Content in an aggregated and anonymized form on a perpetual basis to: (i) improve the Services and Company’s related products and services; (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding use of the Services, provided, however, that no Customer-only statistics will be disclosed to third parties without Customer’s consent. Customer Content, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. All rights in and to Customer Content not expressly granted to Company in this Agreement are reserved by Customer.
- Customer Warranty. Customer represents and warrants that any Customer Content will not (a) infringe any Intellectual Property Rights of any third party; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Company’s system or data; and (e) otherwise violate the rights of a third party. Company is not obligated to back up any Customer Content except as required for Company’s business continuity procedures.
- Limited Warranty; Warranties and Disclaimers
- Limited Warranties. Company warrants to Customer that the Solution, when used in accordance with this Agreement and Documentation, will substantially conform to the Documentation, provided that such warranty will not apply to failures to conform with Documentation to the extent such failures arise, in whole or in part, from (a) any use of or access to the Solution by Customer or its Authorized Users not in accordance with this Agreement, the Terms of Service, or as specified in the Documentation; (b) any use of the Solution in combination with other products, equipment, software or data not supplied by Company; or (c) any modification of the Solution by any person other than Company or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). Provided that Customer notifies Company in writing of any breach of the foregoing warranty during the Term, Company will, as Customer’s sole and exclusive remedy, provide the support pursuant to the Support Policy. THE LIMITED WARRANTY SET FORTH IN SECTION 5.1 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5.1 AND THE LIMITED WARRANTY PROVIDED IN THE PROFESSIONAL SERVICE TERMS, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, LICENSED MATERIAL, PROFESSIONAL SERVICES, WORK PRODUCT, AND DOCUMENTATION ARE PROVIDED “AS IS,” AND COMPANY MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, THAT OPERATION OF THE SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE, OR MAKE ANY OTHER REPRESENTATION REGARDING THE USE, OR RESULTS OF THE USE OF THE SOLUTION OR WORK PRODUCT IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
- Limitation of Liability
- Types of Damages. EXCEPT AS SET FORTH IN SECTION 6.3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
- Amount of Damages. EXCEPT AS SET FORTH IN SECTION 6.3, THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO COMPANY DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL COMPANY’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
- Exclusions. NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL LIMIT LIABILITY WITH RESPECT TO CUSTOMER’S PAYMENT OBLIGATIONS OR EACH PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD.
- Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 6 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and this Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
- Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, Documentation, and all Enhancements and other improvements thereto will be considered Confidential Information of Company.
- Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will use reasonable efforts to limit access to the Confidential Information to those employees and its agents who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
- Exceptions. The confidentiality obligations set forth in Section 7.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
- By Company. Company will defend any suit brought against Customer, and will pay any settlement Company makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Solution infringes such third party’s Intellectual Property Rights. If any portion of the Solution becomes, or in Company’s opinion is likely to become, the subject of a claim of infringement, Company may, at Company’s option: (a) procure for Customer the right to continue using the Solution; (b) replace the Solution with non-infringing software or services which do not materially impair the functionality of the Solution; (c) modify the Solution so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Solution and Documentation. Notwithstanding the foregoing, Company will have no obligation under this Section 8.1 or otherwise with respect to any infringement claim based upon any Exclusion. This Section 8.1 states the sole and exclusive remedy of Customer and the entire liability of Company, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
- By Customer. Customer will defend at its expense any suit brought against Company, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, or (b) Customer’s breach or alleged breach of Sections 4.2.
- Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
- Term and Termination
- Term. The initial term will begin on the Effective Date and continue in full force and effect for the duration specified on the Order Form (the “Initial Term”), unless earlier terminated in accordance with this Agreement. Thereafter, the Initial Term will automatically renew for additional terms of one (1) year (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either party gives written notice of non-renewal to the other party at least thirty (30) days prior to the expiration of the then-current term.
- Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
- Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in Section 7; and (c) any amounts owed to Company under this Agreement will become immediately due and payable. Sections 1.2, 2, 3, 4, 5.2, 6, 7, 8, 9.3, 10, 12 and Schedule 1 will survive expiration or termination of this Agreement for any reason.
- Project Archives and Data Extraction
During the Term, archived Customer Content from Projects will be made available in a text format of Company’s choosing and can be viewed by Authorized Users through an internet browser with no internet connection required. For twenty (20) days after the Term or after a Project is deemed closed, Company will, upon Customer’s request, provide an electronic archival copy of the Project’s Customer Content, or upon Customer’s request, delete such Customer Content. After such a period, Company may delete the Project and all corresponding Customer Content in Company’s possession. Company can provide interim archives for a Project upon request by Customer at any time during the Project for an additional fee. Any requests received by Company from an Authorized User for an archive must be approved by Customer in writing and will be subject to an additional fee. Any archives that are provided will honor the permissions and any restrictions set for the Authorized User requesting the archive and will include only information consistent with these permissions.
- Data Privacy; California Consumer Privacy Act.
If and solely to the extent that Company processes any “Personal Information” (as such term is defined in the California Consumer Privacy Act of 2018) in connection with performing the Services hereunder, Company agrees as follows: Company will not (1) sell Personal Information; (2) retain, use, or disclose Personal Information for any purpose other than for the specific purpose of Company’s performance under this Agreement, including retaining, using, or disclosing Personal Information for any commercial purpose other than the specific purpose of Company’s performance under this Agreement; or (3) retain, use, or disclose Personal Information outside of the direct business relationship between Company and Customer.
- Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for Alameda County, California for any lawsuit filed there against Customer by Company arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
- Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
- Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
- Compliance with Law. Customers will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services, Licensed Material, and Documentation.
- Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, epidemic (or similar public health emergency) or any other event beyond the control of such party. The impacted party will use reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
- Independent Contractors. Customer’s relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. Customers will not have, and will not represent to any third party that it has, any authority to act on behalf of Company.
- Marketing and Publicity. Customer agrees that, during the Term, Company may use Customer’s name and logo, subject to Customer’s then-current trademark usage guidelines that Customer makes available to Company reasonably in advance, in Company’s marketing materials or communications (including, but not limited to, Company’s website and in Company’s marketing presentations); provided that it obtains Customer’s prior written consent. Subject to the terms and conditions of this Agreement (including the foregoing sentence), Customer hereby grants to Company a non-exclusive and limited license to use and publicly display Customer’s logo.
- Notices. All notices required or permitted under this Agreement must be delivered in writing, if to Company, by emailing email@example.com and if to Customer by emailing Customer’s Join Lead email address listed on the Order Form, provided, however, that with respect to any notices relating to breaches of this Agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
- Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
- Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters, including superseding the Terms of Service, solely with respect to Customer’s use of the Services. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the Company.
Schedule 1 – Definitions
“Administrator” means a person who is authorized by Customer via certain functionalities of the Services and that administers the Services on Customer’s behalf.
“Agreement” means these General Terms and together with the initial Order Form and, in each case, all referenced or linked documents, policies and terms herein or therein.
“Annual Subscription Value” means the total allowable aggregate billable Project Contract Value (as defined in the Billable Projects Policy) purchased by Customer for use during the Initial Term, Initial Term and each Renewal Term, or Term as specified on the then-current Order Form.
“Authorized User” means any of Customer’s employees, agents, and independent contractors, and any other individual that Company authorizes access to the Solution pursuant to Customer’s rights under this Agreement. “Authorized User” includes any Administrator(s).
“Customer Content” means (a) any content and information provided or submitted by, or on behalf of Customer or its Authorized Users, and (b) any of Authorized Users’ Content (as defined in the Terms of Service (defined below)) for use with the Services, including, but not limited to, data for Projects.
“Documentation” means the technical materials provided or made available by Company to Customer in hard copy or electronic form describing the use and operation of the Solution.
“Enhancements” means any of the following: minor modifications, bug fixes or patches, performance improvements, or updates to Documentation or Services included under this Agreement as set forth in the Order Form. Enhancements do not include the addition of New Features not originally included as part of the Services described in the applicable Order Form.
“Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) design rights, and other intellectual or proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
“Licensed Material” means results, reports, materials and Documentation made available to Customer as part of the Services.
“Order Form” means a (i) mutually executed order form or other mutually agreed upon ordering document; or (ii) quote issued by Company and accepted by Customer, in each case, which references these General Terms.
“New Features” means new or materially different modules or services that Company develops over time which are offered as additional features for a fee and are distinct from included Enhancements.
“Professional Services” means any professional services, such as consulting services, provided by Company to Customer as described in the Order Form (as may be further elaborated in any SOW).
“Project” or “Projects” means any Customer project or projects for which Customer is utilizing the Solution.
“Services” means any services provided by Company to Customer under this Agreement as set forth in the Order Form or applicable Statement of Work which references these General Terms (“SOW”), including, but not limited to, provision of the Solution and Professional Services.
“Solution” means the Company software-as-a-service application identified in the Order Form that allows Authorized Users to access certain features and functions through a web interface that Company makes available pursuant to this Agreement, including any Enhancements. For the avoidance of doubt, if Customer enters into an additional Order Form for a New Feature of a Solution that is listed in a prior Order Form, such New Feature shall be deemed a “Solution” for purposes hereunder.