(a) This Agreement will apply to Customer’s use of the Demandbase service identified in Exhibit A (“Service” or “Services” as used throughout this Agreement shall refer both to the service identified in Exhibit A as well as the Data obtained via the service). The Service may offer integration capabilities via an application programming interface, or API. Use of the API shall require a unique API Key for each Service licensed by Customer and be used to determine the level and type of data returned by Demandbase as listed on the Order Form. Each API Key is limited to the one business application (“Limited Application”) and one single root domain identified in the Order Form (example http://www.subroot.rootdomain.com/).
(b) By accepting this Agreement, either through executing an Order Form that references this Agreement, or by signing this Agreement directly, Customer agrees that its use of the Services is subject to and bound by these terms and conditions.
Demandbase hereby grants to Customer a non-exclusive, non-transferable, worldwide, non-sublicensable right and license to use the Service for Customer’s internal business purposes, for the term specified in the applicable Order Form, for the Limited Application and single root domain identified in the Order Form, subject to the terms of this Agreement and the applicable Order Form. Demandbase reserves all rights, title, and interest in and to the Service, including all related Intellectual Property rights, subject to the limited rights expressly granted hereunder.
3. Availability and Support.
(a) Demandbase will provide the Service in a manner consistent with general industry standards, which includes reasonable service interruptions due to Excusable Delays or scheduled maintenance. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Demandbase’s reasonable control (collectively referred to as “Excusable Delays”). Except for reasonable service interruptions due to Excusable Delays or regularly scheduled maintenance, the Service shall be available not less than 99% of the time, on a monthly basis.
(b) Demandbase will provide the following support services to Customer related to the Service for the duration of the Agreement: (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 to Demandbase.
Customer will be exclusively responsible for the content of all communications sent using the Service.
Customer will use the Service for internal business purposes only as contemplated by this Agreement and will not:
(a) use the Service in violation of or beyond the license granted herein;
(b) use the Service, directly or indirectly, in applications other than the Limited Application;
(c) permit any third party to access the Service, or otherwise sell, rent, license, provide, or distribute the Service;
(i) provided, however, that Customer may authorize a contractor to process and implement the Services (“Third Party Contractor), if such Third Party Contractor has entered into a written agreement with Customer to: (a) access and use thE Services solely to perform services for Customer; (b) treat the Services with confidentiality and not disclose or distribute the Services to any third party including any affiliates of the Third Party Contractor; and (c) limit access to the Service only to employees or agents with a “need to know” in order to perform the Third Party Contractor’s agreed upon serviceS for Customer.
(d) use the Service to communicate any message or material that (i) is libelous, harmful to minors, obscene or constitutes pornography; (ii) infringes the intellectual property rights of any third party or is otherwise unlawful; or (iii) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law;
(e) create derivative works from the Service, or otherwise reverse engineer or access the Service in order to (i) build a competitive product or Service, (ii) build a product using similar ideas, features, functions or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the Service;
(f) 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;
(g) attempt to gain unauthorized access to the Service or related systems or networks, or systematically access the Service using “bots” or “spiders”;
(h) use or distribute the Service in any manner that violates any applicable local, state, domestic and/or international laws, rules, and regulations.
The restrictions set forth in this Section 5 shall survive termination of this Agreement.
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, with written notice (email is sufficient) suspend Customer’s access to the Service.
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. 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.
8. 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, the marks of Demandbase’s licensors, 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.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement and there is no outstanding contract, commitment, or legal impediment which may limit, restrict, or impair its ability to perform its obligations hereunder. In addition, Demandbase represents and warrants that it has all necessary rights and titles in and to the Service. In addition, Customer represents and warrants that its use of the Services will comply with all applicable federal, state, and local laws and regulations, including those laws and regulations regarding telemarketing, customer solicitation, data protection, and privacy.
(a) The parties each acknowledge that the other party treats its products, development processes, business methods, business information, and prices as confidential to the extent permitted by the laws of the State of California and that they constitute the commercially valuable proprietary products and/or services and trade secrets of the respective party, regardless of whether they may be copyrighted, patented or trademarked.
(b) During the Term of this Agreement, each party will learn or receive information about the other which the other treats as confidential, including but not limited to all business, marketing, financial and customer-related data (“Confidential Information”). Each party agrees that Confidential Information received from the other shall be treated as confidential and protected in the same manner as the receiving party treats its own confidential information (but in no event less than reasonable care). Each party agrees not to transfer, distribute or disclose to any third party any Confidential Information of the other, except as expressly authorized in writing by the other and shall confine knowledge and use of the Confidential Information received by the other to those of its employees and contractors who require such knowledge and use of the information in the ordinary course of and scope of their employment pursuant to this Agreement. Notwithstanding the foregoing, Confidential Information shall not include information which (i) has entered the public domain by no action of the receiving party hereunder, (ii) was already rightfully in the possession of the receiving party when received by the disclosing party, (iii) is received from a third party without breach of any obligation owed to the disclosing party or (iv) was developed independently by the receiving party by individuals without access to the disclosing party’s information.
(c) The receiving party may disclose Confidential Information of the disclosing party if it is compelled by law to do so, provided the receiving party gives the disclosing party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure. If the receiving party is compelled by law to disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, and the disclosing party is not contesting the disclosure, the disclosing party will reimburse the receiving party for its reasonable cost of compiling and providing secure access to such Confidential Information.
(d) The obligations of the parties, with regard to the Confidential Information of the other that constitutes trade secrets, shall remain in effect for as long as such Confidential Information shall remain a trade secret under applicable law. All other Confidential Information shall remain protected during the Term and for three (3) years thereafter.
(e) Demandbase and Customer acknowledge that the damages for unauthorized and/or improper disclosure of the Confidential Information of the other party may be irreparable; therefore, the parties may seek equitable relief, including injunction and preliminary injunction for such alleged breaches.
Each party (in this case, the “Indemnifying Party”) shall defend each other (in this case, the “Indemnified Party”) and the Indemnified Party’s officers, agents, and employees against any third-party claim, demand, suit or proceeding made or brought by a third party, arising out of or caused by the breach or alleged breach by the Indemnifying Party of any of its representations or warranties contained herein (a “Claim”). The Indemnifying Party shall indemnify the Indemnified Party for any damages, attorney fees and costs finally awarded as a result of, or any amounts paid under a court-approved settlement of, a Claim against such party; provided that the Indemnified Party (a) promptly gives the Indemnifying Party written notice of the Claim; (b) gives the Indemnifying Party sole control of the defense and settlement of the Claim (provided the Indemnifying Party may not settle or defend any Claim against the Indemnified Party unless it unconditionally releases the Indemnified Party of all liability); and (c) provides to the Indemnifying Party all reasonable assistance, at the Indemnifying Party’s expense.
Notwithstanding the provisions of this Section, Demandbase will have no liability to the extent that any such Claim would have been avoided but for (i) modification of the Services or any deliverable after delivery by Demandbase, (ii) Customer’s failure to use updated or modified Services or deliverables provided at no cost as a replacement for the original Services by Demandbase to avoid such a claim, or (iii) any use of the Services or deliverables not in accordance with the Order Form and Master Subscription Agreement.
In the event that any Service or deliverable is, or is likely to be, infringing, Demandbase, at its option and expense, may either (i) modify the Service(s) or deliverables so that they become non-infringing, (ii) replace the Services or deliverables with functionally equivalent non-infringing services reasonably acceptable to the Customer, (iii) procure for Customer the right to continue use, or, if the foregoing alternatives are not reasonably available to the Company, (iv) terminate the relevant Order Form and refund the Fees paid for the affected Services or affected deliverables under such Order Form.
This “Indemnification” section states the Indemnifying Party’s sole liability to, and the Indemnified Party’s exclusive remedy against, the other party for any type of claim described in this section.
12. Disclaimer and Limitation of Liability.
(a) EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE SERVICE AND ALL DATA IS PROVIDED ON AN “AS IS” BASIS. 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. DEMANDBASE AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (i) 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, (ii) THE SERVICE WILL MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS, (iii) THE SERVICE WILL RESULT IN SALES, (iv) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (v) ERRORS OR DEFECTS WILL BE CORRECTED, OR (vi) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES 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. 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.
(b) IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS’ AGGREGATE LIABILITY FOR CLAIMS ARISING UNDER THE AGREEMENT 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 THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, 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.
13. Term and Termination.
(a) Initial Term. The Initial Term of the Service shall commence on the start date agreed to on the applicable Order Form. Thereafter, unless either party gives the other party written notice of non-renewal at least sixty (60) days prior to the end of the then-current term, the Service shall renew for additional period(s) equal to the duration of the Initial Term.
(b) Termination for Cause. Either party may terminate the Agreement for cause upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period.
(c) Termination for Insolvency. In the event that either party hereto is adjudged insolvent or bankrupt, or upon the institution of any proceeding regarding insolvency, receivership, liquidation or assignment for the benefit of creditors, then such party will immediately give notice thereof to the other party, and the other party may terminate the Agreement upon written notice.
(d) Payment Upon Termination. Upon any Termination for Cause by Demandbase, Customer shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall termination by Customer or Demandbase relieve Customer of the obligation to pay any fees payable to Demandbase for the period prior to the effective date of termination.
(e) Assignment. This Agreement is binding on the parties hereto and their respective successors and permitted assigns. Either party may assign this Agreement to: (i) an affiliate controlled by, controlling, or under common control with the assigning party, or (ii) in connection with a merger or consolidation (so long as the assignment is to the newly merged or consolidated entity, and such entity is not a competitor of the non-assigning party) or the sale of substantially all of its assets (so long as the assignment is to the acquirer of such assets, and such acquirer is not a competitor of the non-assigning party). Any assignment in violation of this section is void.
(f) Force Majeure. 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.
(g) Surviving Provisions. Sections 5 (Restriction), 7 (Fees), 8 (Intellectual Property), 10 (Confidentiality), 11 (Indemnification), 12 (Disclaimer and Limitation of Liability), 13.d (Payment Upon Termination), and 14 (General) shall survive any termination or expiration of this Agreement.
(a) Demandbase may give notice to Customer by means of a general notice on the Service portal, 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, 680 Folsom Street, Suite 400, San Francisco, CA 94107.
(b) 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, or the United Nations Convention on the International Sale of Goods, 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.
(c) 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.
(d) This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both Parties. However, In case of conflict, the terms of the mutually executed Order Form shall take precedence over the body of this Agreement.
(e) No text or information set forth on any other purchase order, preprinted form or document (other than a mutually executed Order Form) 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.
(f) The Parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between Customer and Demandbase as a result of this agreement or use of the Service.
(g) No rules of construction are intended or shall be applied in the interpretation of this Agreement and both Parties hereto shall be deemed joint authors hereof for all purposes.
(h) During the Term, Demandbase will be entitled to display Customer’s corporate name and logo on Demandbase’s website and marketing materials and to identify Customer as a Demandbase customer.