Demandbase, Inc. Terms of Use
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Service: Demandbase will provide to Customer the Service in accordance with this TOU, either a la carte or by completing and delivering an Order Form. Such Order Form and this TOU shall constitute the complete agreement of the parties (together they may be referred to as “Agreement”), and supersedes all prior discussions and negotiations. In case of conflict, the terms of the Order Form shall take precedence over this TOU. The Service may offer integration capabilities via an application programming interface, or API. Use of the API shall require a unique token and be used to determine the level and type of data returned by Demandbase as listed on the Order Form. Each API token is limited to one business application and one single root domain.
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License: Demandbase hereby grants to Customer a non-exclusive, non-transferable, worldwide, non-sublicensable, fee-bearing, right and license to use the Service in accordance with the Agreement.
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Support: Demandbase will provide support services to Customer related to the Service for the duration of the Agreement. Support services shall include the following: (a) email and telephone support regarding operation and use of the Service during Demandbase’s normal business hours (8:30AM to 5:30PM PST), and (b) programming to correct any demonstrated errors in the Service necessary to enable reasonable use of the Service. Customer should promptly report any errors in the operation of the Service.
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Acceptable Use: Customer will comply with all applicable privacy, publicity, data protection, electronic communications, spam and other laws in connection with the use of the Service, including, without limitation, the CAN-SPAM Act of 2003.
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Communication: Customer will be responsible for the content of all communications sent using the Service.
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Restrictions: Customer will use the Service for internal business purposes only as contemplated by this Agreement and will not:
- license, lease, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way other than as contemplated in the Agreement;
- use the Service to communicate any message or material that (a) is libelous, harmful to minors, obscene or constitutes pornography; (b) infringes the intellectual property rights of any third party or is otherwise unlawful; or (c) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law;
- access the Service if Customer is a direct competitor of Demandbase;
- try to access any Service Customer is not entitled to;
- use any artifice to avoid paying for Service purchased;
- reverse engineer or access the Service in order to (a) build a competitive product or Service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service;
- knowingly or willfully use the Service in any manner that could damage, disable, overburden, impair or otherwise interfere with Demandbase's infrastructure; or
- interfere or attempt to interfere with the proper working of the Service.
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Suspension: In the event of any breach or threatened breach of this Agreement by Customer (including non-payment of fees), without limiting Demandbase’s other rights and remedies, Demandbase may immediately suspend Customer’s access to the Service.
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Fees: Customer will pay all fees due for Service according to the prices and terms listed in the Order Form. All fees are non-cancelable and nonrefundable. Delinquent invoices are subject to a service charge of 0.833% per month, plus all expenses of collection including without limitation all attorneys’ and other professionals’ fees. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes imposed on Demandbase net income). In the event Demandbase pays any such taxes and has not collected them previously from Customer, Customer shall promptly reimburse Demandbase.
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Intellectual Property: Demandbase alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Demandbase technology, and the Service, as well as any and all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Service (all of the foregoing being the “Rights”). To the extent that any such Rights are not deemed owned by Demandbase pursuant to the prior sentence, Customer hereby irrevocably assigns and transfers all such Rights to Demandbase. The Demandbase name, the Demandbase logo, and the product names associated with the Service are trademarks of Demandbase or third parties, and no right or license is granted to use them.
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Warranties: Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Demandbase warrants that it will provide the Service in a manner consistent with general industry standards, which includes reasonable service interruptions due to excusable delays or scheduled maintenance.
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Confidentiality: Each Party shall not use or disclose confidential information provided by the other Party, and shall use efforts reasonable under the circumstances, and in no event less than reasonable efforts, to protect such confidential information against such use or disclosure.
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Mutual Indemnification: Demandbase hereby indemnifies and holds harmless Customer from and against any claims, actions, or demands alleging that the Service infringes any U.S. patent, trademark or copyright of a third party; provided, that Customer (a) promptly gives written notice of such claim to Demandbase; (b) gives Demandbase sole control of the defense and settlement of such claim; (c) provides to Demandbase at Demandbase’s cost all reasonable assistance; and (d) has not compromised or settled such claim. Customer hereby indemnifies and holds harmless Demandbase from and against any claims, actions, or demands alleging that the way in which Customer uses the Service infringes the intellectual property rights of, or has otherwise harmed, a third party or violates any law or regulation; provided, that Demandbase (a) promptly gives written notice of such claim to Customer; (b) gives Customer sole control of the defense and settlement of such claim; (c) provides to Customer, at Customer's cost, all reasonable assistance, and (d) has not compromised or settled such claim.
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Disclaimer and Limitation of Liability: EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, DEMANDBASE AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY DATA. DEMANDBASE AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS, (C) THE DATA WILL RESULT IN SALES, (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (E) THE SERVICE OR THE DATA, WILL MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS, (F) ERRORS OR DEFECTS WILL BE CORRECTED, OR (G) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL DATA IS PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY DEMANDBASE AND ITS LICENSORS. As used herein DATA means the documents, software, analytics, keywords, visitor and company data, business contact information, products and services contained or made available to Customer in the course of using the Service.
(a) DEMANDBASE’S SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. DEMANDBASE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
(b) EXCEPT FOR THE OBLIGATIONS UNDER SECTIONS 9, 11, AND 12, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY DATA OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE DATA, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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Term and Termination:
- If this Agreement is not for a la carte Service, the Initial Term of the Service shall be as indicated on the applicable Order Form. Thereafter, unless either party gives the other party written notice of non-renewal at least thirty (30) days prior to the end of the Initial Term or extended term, the Service shall renew for additional period(s) equal to the duration of the Initial Term.
- This Agreement may not be assigned by Customer without the prior written approval of Demandbase but may be assigned without Customer consent by Demandbase to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger.
- Either party may terminate the Agreement at any time upon written notice to the other party if (a) the other party breaches a material term of this Agreement that is uncured within thirty (30) days or immediately if it is by its nature incurable, (b) proceedings are commenced under any bankruptcy, insolvency, or debtor's relief law, (c) the other party liquidates or dissolves or attempts to do so.
- Demandbase has no obligation to store any Customer information for longer than one year.
- Demandbase's failure to perform any term or condition of this Agreement as a result of conditions beyond its control, including but not limited to, acts of God, war, strikes, fires, floods, governmental restrictions, power failures, or damage or destruction of any network facilities or servers, shall not be deemed a breach of this Agreement. In the event that Demandbase is not able to provide Service during such event, during such period Customer’s obligation to pay for the Service shall be suspended.
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General:
- Demandbase may give notice to Customer by means of a general notice on the Service, electronic mail to Customer’s address on record in Demandbase’s account information, or by written communication sent by first class mail or pre-paid post to Customer’s address on record in Demandbase’s account information. All notices to Demandbase shall be sent to Demandbase Inc., Attn: CFO, 244 Jackson Street, San Francisco, CA 94111.
- This Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California. If any legal action is necessary to enforce the terms of the Agreement, the substantially prevailing party shall be entitled to reasonable legal fees and costs.
- No failure to pursue any remedy resulting from a breach of this Agreement by the non-breaching Party shall be construed as a waiver of that breach by the non-breaching Party or as a waiver of any subsequent or other breach unless such waiver is in writing and signed by the non-breaching Party.
- No text or information set forth on any other purchase order, preprinted form or document shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
- No joint venture, partnership, employment, or agency relationship exists between Customer and Demandbase as a result of this agreement or use of the Service. This Agreement, together with its attachments, comprises the entire agreement between Customer and Demandbase and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
- No rules of construction are intended or shall be applied in the interpretation of these Terms of Use and both parties hereto shall be deemed joint authors hereof for all purposes.
- This Agreement will be deemed executed upon mutual execution of an Order Form, which may be executed and delivered by facsimile or email.
