This GoCo Service Agreement (“Agreement”) is made and entered into by and between GoCo.io, Inc., a Delaware corporation, (the “Company”; also referred to as “We” or “Our”) and the undersigned (either a “Client” or an “Authorized User”; in each case, also referred to as “You” or “Your”) as of the date set forth on the time stamp collected when accepting this Agreement online (the “Effective Date”).
THIS AGREEMENT GOVERNS YOUR RIGHTS AND RESPONSIBILITIES RELATING TO ACCESS AND USE OF THE SERVICES MADE AVAILABLE BY THE COMPANY. IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, FREE SERVICES, OR ACCESS TO ANY BETA SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN SUCH FREE TRIAL, FREE SERVICES, AND BETA SERVICES.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION CLAUSE, A WAIVER OF JURY TRIAL AND A WAIVER OF CLASS ACTION TYPE RELIEF
BY LOGGING INTO THE SERVICE OR BY EXECUTING AN ORDER FORM RELATING TO THIS AGREEMENT, YOU INDICATE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT INCLUDING THE PROVISIONS RELATED TO COLLECTION, STORAGE, USE AND PROTECTION OF PERSONAL INFORMATION. YOU MUST READ AND AGREE TO THE TERMS OF THIS AGREEMENT BEFORE YOU MAY ACCESS AND USE THE SERVICES. IF YOU DO NOT AGREE WITH ANY OF THE TERMS BELOW, YOU MAY NOT USE THE SERVICES.
IF YOU ARE ENTERING INTO THIS AGREEMENT AS A REPRESENTATIVE OF A CLIENT, YOUR ACCEPTANCE IN ANY OF THE FORMS MENTIONED ABOVE REPRESENTS THAT YOU HAVE READ AND AGREE TO THE TERMS OF THIS AGREEMENT
RELATING TO YOUR OWN ACCESS AND ALSO HAVE THE AUTHORITY TO BIND SUCH CLIENT AND ITS AFFILIATES TO THIS AGREEMENT INCLUDING ALL OF THE TERMS AND CONDITIONS HEREIN, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL ALSO REFER TO SUCH CLIENT FOR WHICH YOU ARE A REPRESENTATIVE. IF YOU DO NOT AGREE WITH ANY OF THE TERMS BELOW OR DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS AGREEMENT ON BEHALF OF A CLIENT AND MAY NOT USE THE SERVICES.
NOTWITHSTANDING THE FOREGOING, YOU MAY NOT ACCESS THE SERVICES IF YOU ARE A COMPETITOR OF THE COMPANY OR FOR ANY MONITORING, BENCHMARKING OR COMPETITIVE PURPOSES
WHEREAS, the Company is engaged in the business of promoting, providing, maintaining, supporting, and improving a cloud-based SaaS software platform for human resources and benefits administration called the GoCo Platform and developing other software relating to such fields of business and related fields; and
WHEREAS, the Client or Authorized User desires to subscribe to the Services, subject to the following terms and conditions.
NOW, THEREFORE, for the mutual promises contained herein and for other good and valuable consideration set forth herein, the parties agree as follows:
“Authorized User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a Client, an individual who is authorized by such Client to bind such Client to this Agreement to use the Services, in each case, to whom the Company has allowed access associated with Your user identification and password.
“Base Services” means the GoCo Platform product and services.
“Beta Services” means new products and services that have not been made commercially available which the Company may offer for free for a specified amount of time for market testing and improvement purposes.
“Client” means any company or other entity that has a Company Profile on the GoCo Platform that contains data, documents, policy configurations, workflows, and other information relating to the entity and its Authorized Users.
“Client and Authorized User Data” or “Your Data” means all information processed or stored on computers or other electronic media by the Client or Authorized User, or that is generated or gathered by or processed by any third party for, or in relation to, the Client or Authorized User, or that is otherwise generated or gathered or processed on Client or Authorized User’s behalf by any third party including all data used to set up and maintain the Client or Authorized User’s access, use and all associated records involving or associated with the Client or Authorized User, or provided to the Company for such processing or storage, as well as any information derived from such information including, without limitation: (a) information on paper or other non-electronic media provided to Client or Authorized User for computer processing or storage, or information formerly on electronic media; (b) information provided to Company through the Services by the Client or Authorized User or any other third parties; and (c) any personal information provided by or for such Client or Authorized Users.
“Client Full Access Administrator” – is an Authorized User who has top level access to manage all aspects of the Clients interaction with the GoCo Platform on behalf of the Client.
“Client Limited Access Administrator” is an Authorized User who has access beyond that of an Authorized User but not equal to a Client Full Access Administrator to enable such person to manage some but not all of the Clients interaction with the GoCo Platform on behalf of the Client.
“Free Services” means any Services that the Company makes available to You free of charge; except that “Free Services” does not include Services offered in relation to a free trial or Purchased Services.
“Free-Trial Services” means any Services that the Company makes available to You free of charge for a limited time in order for You to evaluate the Services to determine if use after the free time period is desirable.
“Manager” is an Authorized User who was given access privileges that allow such person to manage an enumerated, but adjustable, list of authorized users profiles and interactions with the GoCo Platform.
“Non-GoCo Products & Services” means any product or service (regardless of whether it is web-based, mobile-based, offline or in any other form) that was not created by or for the Company and is not owned by the Company, and that interoperates with any of the Services.
“Order Form” means an ordering document which refers to this Agreement and includes a description of the Services to be provided, the start date and term applicable to the Services, and associated fee and payment information, that is entered into between You and the Company.
“Partner” is a party that entered into a Partner Agreement (i.e., a reseller agreement) with the Company to obtain Partner Access to the GoCo Platform and associated rights and obligations including the ability to market, sell, provide and/or manage its Clients’ access to the GoCo Platform.
“Purchased Services” means any Services that You or the Partner with which you are associated purchased and for which an Order Form or Partner agreement was generated; except that “Purchased Services” does not include Free Services, Free-Trial Services, or Beta Services.
“Services” means the Base Services, Purchased Services, Free Services, Free-Trial Services and/or Beta Services.
- Provision of Services Generally; Support. The Company will make the Services available to the Client or Authorized User promptly following the Effective Date in accordance with the terms of this Agreement and any applicable Order Form. The agreement between the Company and Client or Authorized User shall not restrict the Company from providing or performing the same or similar services for any third party. The Company reserves the right in its sole discretion to (i) amend, modify or withdraw any portion of the Services at any time for any reason it deems sufficient, or (ii) cease providing any portion of the Services. Any and all requests for support and maintenance relating to the Services by Client or Authorized User should be first directed to his or her employer or the Partner through which the employer obtains the contract regarding these Services, at the option of the Client or Authorized User’s employer. Of course, you as Client or Authorized User should feel free to reach out directly to us if the employer or the Partner that was contacted initially cannot adequately handle any requests. Services are provided under subscriptions and purchased services may be added during a subscription term under the terms specified in an Order Form including terms relating to pricing and subscription period. The Company, subject to the terms and conditions of and except as otherwise provided in this Agreement, grants to the Client or Authorized User a limited, non-exclusive, non-transferable and non-assignable right to access and use the Services solely for Client or Authorized User’s own purposes.
- Provision of Purchased Services; Support. The Company will provide applicable Company standard support for the Purchased Services to You at no additional charge (and/or an upgraded level of support if offered and purchased as part of the Purchased Services), and will use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which the Company shall use reasonable efforts to provide advance electronic notice), and (ii) any unavailability caused by circumstances beyond the Company’s reasonable control, including, for example, any act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving the Company employees), Internet service provider failure or delay, denial of service attack, or any event relating to any Non-GoCo Applications & Services.
- Fees for Purchased Services. The Client (or its Partner) will pay all fees specified in the Order Forms applicable to each of the Purchased Services. Except as otherwise specified in this Agreement or in an Order Form,(i) fees are based on Services subscriptions purchased according to the usage tiers specified in the applicable Order Form, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
Payment. You will provide the Company with credit card information or bank account information (or You will be billed via invoicing if You are prequalified to make payment in such manner). If You provide credit card information or bank account information to the Company, You authorize the Company to charge such credit card or withdraw via ACH from such bank account any and all fees for all Purchased Services listed in an Order Form for the initial subscription term and for any renewal subscription terms that apply. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. In the case in which You are prequalified to make payment via invoicing, the Order Form will indicate that payment is allowed by such method and You will be required to provide payment in advance or otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due within thirty (30) days of the invoice date, provided that, You will not be provided with access to the associated Purchased Services until payment is received (unless the Company provides written consent for access prior to receipt of payment). You are responsible for providing accurate billing and contact information to the Company and notifying the Company of any changes to such information.
Overdue Charges. If any invoiced amount is not received by the Company by the due date in the Order Form, then without limiting Our rights or remedies, (a) those charges will be subject to a late payment penalty at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) the Company will have the option to condition future subscription renewals and Order Forms on payment terms shorter than those specified in previous Order Forms and/or this Section 4.
Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for any Purchased Services is thirty (30) days or more overdue, You hereby authorize the Company to charge Your credit card or bank account for the outstanding balance that is due. If the outstanding balance that has been due for thirty (30) days of more cannot be collected by Us after two successive attempts, the Company has the option to, without limiting its other rights and remedies, accelerate all unpaid fee obligations under your Order Form subscriptions so that all such obligations become immediately due and payable, and suspend Your ability to obtain the Purchased Services until such amounts are paid in full. Other than for Clients paying by credit card or direct debit whose payment has been declined, the Company will give You at least fifteen (15) days’ prior notice that Your account is overdue before suspending services to You.
Payment Disputes. If You dispute any overdue charges with a reasonable argument and in good faith and are cooperating with Us to resolve the dispute, the Company will not exercise our rights relating to imposing interest, accelerating payments or suspending any of the Services.
Taxes. Our fees do not include any taxes, levies, duties or other governmental assessments of any kind, including, for example, sales, use, value added, or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If the Company has the legal obligation to pay or collect Taxes for which You are responsible, the Company will include such amounts on the Order Form and You will include payment for the amount associated with Taxes unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For avoidance of doubt, the Company is solely responsible for any taxes assessable against it based on its business including that associated with income, property and employees.
- Provision of Free Services; Support. If You register for any Free Services, the Company will make one or more Free Services available to You free of charge subject to the terms and conditions of this Agreement including, but not limited to, any time and usage limits specified in this Agreement, and subject to any other time and usage limitations of which you are made aware through the Services or separately by the Company. Usage over any of the specified limits will require Your purchase of additional resources or services. You agree that the Company, in its sole discretion and for any or no reason, may terminate your access to the Free Services or any part thereof. You agree that any termination of your access to the Free Services may be without prior notice, and you agree that the Company will not be liable to you or any third party for such termination. You are solely responsible for maintaining a backup of Your Data on a periodic bases and for extracting the most up to date version of Your Data from the Free Services prior to termination of Your access to the Free Services for any reason; provided that, if the Company terminates Your access, the Company will provide You a reasonable time period in which to retrieve Your Data.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO THE COMPANY FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE FREE SERVICES, ANY BREACH BY YOU OF THIS AGREEMENT DURING USE OF THE FREE SERVICES, AND ALL OF YOUR INDEMNIFICATION OBLIGATIONS THAT ARISE DURING USE OF THE FREE SERVICES HEREUNDER.
- Provision of Free-Trial Services; Support. If You register for Free-Trial Services, the Company will make one or more Free-Trial Services available to You on a trial basis free of charge until the earlier of: (a) the end of the free trial period for which You registered to use the applicable Free-Trial Service(s), (b) the start date of any Purchased Service subscription(s) ordered by You for any Service(s) that is the same or similar to the Free-Trial Services to which You subscribed, or (c) termination of Your access to the Free-Trial Services by the Company which may be done at any time in our sole discretion. Additional trial terms and conditions that appear on the Order Form associated with the Free-Trial Services are incorporated into this Agreement by reference herein and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU DURING YOUR FREE TRIAL PERIOD WILL BE PERMANENTLY LOST UNLESS YOU EITHER: (1) PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL, (2) PURCHASE APPLICABLE UPGRADED SERVICES, OR (3) EXPORT SUCH DATA BEFORE THE END OF THE FREE TRIAL PERIOD. IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE FREE TRIAL DURING OR AFTER THE FREE TRIAL PERIOD, YOUR DATA WILL NOT AUTOMATICALLY TRANSFER TO THE DOWNGRADED SERVICE AT THE END OF YOUR FREE TRIAL PERIOD SO YOU MUST TAKE THE STEP TO EXPORT YOUR DATA BEFORE THE END OF THE FREE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING ANY OTHER CONTRARY PROVISIONS OF THIS AGREEMENT, YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO THE COMPANY AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE FREE-TRIAL SERVICES, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER, IN EACH CASE, DURING THE FREE TRIAL PERIOD.
Please review the applicable documentation associated with the Free-Trial Services during the trial period so that You become familiar with the features and functions of such Free-Trial Services before You make any purchases.
- Beta Services. From time to time, The Company may make Beta Services available to You during a trial period at no extra charge. You may choose to try such Beta Services in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Unless otherwise stated in an Order Form, any Beta Services trial period will expire one year from the trial start date or sooner if a version of the Beta Services becomes generally available without the applicable Beta Services designation. The Company may discontinue Beta Services at any time in the Company’s sole discretion and there is no guaranty that the Company will ever make any products or services associated with such Beta Services generally available. The Company will have no liability for any harm or damage arising out of or in connection with a Beta Service or its use thereof.
ANY DATA YOU ENTER INTO THE BETA SERVICES AND ANY CUSTOMIZATIONS MADE TO THE BETA SERVICES BY OR FOR YOU DURING YOUR FREE TRIAL OF THE BETA SERVICES WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE APPLICABLE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL. THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO THE COMPANY FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD RELATING TO ANY BETA SERVICES, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.
- Ownership of Services; License to Client and Authorized User Data. The Company, subject to the terms and conditions of and except as otherwise provided in this Agreement, grants to the Client or Authorized User a limited, non-exclusive, non-transferable and non-assignable right to access and use the Services solely for Client or Authorized User’s own purposes. The Client or Authorized User has no rights in or to the Services except as expressly granted in this Agreement. The Company reserves to itself all rights to the Services not expressly granted to the Client or Authorized User under this Agreement. The Company retains all copyright, trademark, patent, and other intellectual property rights in and to the Services. As between the parties, the Client or Authorized User acknowledges that the Services, all copies of the Services, any derivative works, compilations, and collective works of the Services, and any know-how and trade secrets related to the Services are the sole and exclusive property of the Company and contain the Company’s confidential and proprietary materials. The Client or Authorized User hereby grants to the Company a worldwide, perpetual, and royalty free, license to host, copy, transmit and display the Client and Authorized User Data, (i) as necessary for the Company to provide the Services in accordance with this Agreement and (ii) as part of aggregated and anonymized information for any purpose and at any time. For avoidance of doubt, even if a Client or Authorized User ceases its relationship with its Partner or employer at any time, the license to all Client and Authorized User Data specified in this Section 8 herein shall survive the termination of the relationship and/or the termination of this Agreement.
- Usage Limits. Some of the Services are subject to the limits of Authorized Users specified in the Order Form associated with a usage tier chosen by a Client (or its Partner) from options that are presented. Unless otherwise specified, the quantity of Authorized Users may not exceed the number of Authorized Users allotted for the tier chosen by You (or Your Partner) unless You (or Your Partner) initiate a new Order Form in which You authorize a change in usage tier that is associated with the increased limit in the number of Authorized Users that You require (along with the associated increase in fees) and that is to be associated with Your Company Profile within the Services. Unless otherwise specified, except with regard to any shared user account, only an authorized user of a Client or Authorized User account may access such account at any given time and a Client or Authorized User’s userID and password may not be shared with any other individual. A Client or Authorized User userID may be reassigned to a new individual replacing one who no longer has authorization to use the Services.
Authorized User: You will (a) be responsible for Your compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of the data You supply to the Services including the means by which You acquired Your Data and Your use of Your Data with our Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify the Company promptly of any such unauthorized access or use, (d) use Services only in accordance with this Agreement and all applicable laws and government regulations, and (e) comply with terms of service of any Non-GoCo Applications & Services with which You are provided. You hereby agree that, if You HAVE BEEN or are LATER provided with the authority and privileges to act on behalf of the Client, either as the Client representative that enters into this Agreement (or any extension) on behalf of the Client, or a Manager, Client Limited Access Administrator or Client Full Access Administrator for the Client, then you hereby agree to all additional responsibilities, terms and conditions under this Agreement that are associated with such title you are authorized to assume by the Client (or Partner) with which you are associated. YOUR ACCEPTANCE OF THIS AGREEMENT FOR THE FIRST TIME INDICATES YOUR ACCEPTANCE OF ALL ADDITIONAL RESPONSIBILITIES, TERMS AND CONDITIONS UNDER THIS AGREEMENT THAT ARE ASSOCIATED WITH ANY SUCH TITLE YOU ARE LATER AUTHORIZED TO ASSUME BY THE CLIENT (OR PARTNER) WITH WHICH YOU ARE ASSOCIATED.
Client: You will (a) be responsible for your Authorized Users’ compliance with this Agreement, and all associated Order Forms, (b) be responsible for the accuracy, quality and legality of Your Data, the means by which You acquired Your Data and Your use of Your Data with our Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify the Company promptly of any such unauthorized access or use, (d) use Services only in accordance with this Agreement and all associated Order Forms and all applicable laws and government regulations, and (e) comply with terms of service of any Non-GoCo Applications & Services with which You use such Services.
Manager: Your responsibilities include: (a) assisting with access and maintenance of the Authorized Users for which you are responsible within the Client’s organization, and all related access control, data and maintenance issues, and (b) maintaining the security and privacy of all Client and Authorized User Data to which You have access.
Client Limited Access Administrator: Your responsibilities include: (a) assisting with access and maintenance of the Client and its Authorized Users in the general function areas for which you are responsible within the Client’s organization, and all related access control, data and maintenance issues, and (b) maintaining the security and privacy of all Client and Authorized User Data to which You have access..
Client Full Access Administrator: You hereby agree to only provide access to Authorized Users for which authorized is provided or intended by Client (or Partner) with which You are associated, and You shall maintain that access to preserve the security of all Client and Authorized User Data. In addition, You hereby agree to: (a) be the ultimate owner of quality data accuracy, (b) ensure that everything is configured as desired and that data your Authorized Users access is accurate, (c) ensure that workflows are being executed accurately on the platform (d) provide the Company with data, documents and answers we request to facilitate the provision of any Services by the Company, and (d) take responsibility to ensure that all fees and payments associated with the Purchased Services are made according to the terms of this Agreement. You are authorized within the Services to make purchase decisions for add-ons and additional services on behalf of the Client (or Partner) with which You are associated.
- Usage Restrictions. The Client or Authorized User will not (a) make the Services available to, or use the Services for the benefit of, anyone other than the Client or Authorized User, (b) sell, resell, license, sublicense, distribute, rent or lease the Services, or include it in a service bureau or outsourcing offering, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Services or any data contained therein, (f) attempt to gain unauthorized access to the Services or its related systems or networks, (g) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit, if any, (h) copy the Services or any part, feature, function or user interface thereof, (i) frame or mirror any part of the Services, other than framing on the intranets of Client or Authorized User’s employer or otherwise for the Client or Authorized User’s own personal use, (k) access the Services for the purpose of monitoring availability or functionality, benchmarking, or otherwise assist with the creation and/or evaluation of any competitive service to the Services, or (l) reverse engineer the Services (to the extent such restriction is permitted by law).
- Protection of Client and Authorized User Data. The Company will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Client and Authorized User Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of the Client and Authorized User Data by the Company’s personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 8 (Compelled Disclosure) below, or (c) as part of aggregated, anonymized information relating to our Clients and Authorized Users of the Services. The Company shall exercise commercially reasonably efforts to prevent unauthorized exposure or disclosure of Client and Authorized User Data. The Company shall observe the Data Security, Privacy, Data Retention and e-Discovery policy that is posted on the Company the web site at https://www.goco.io/legal-stuff/privacy-policy/, including without limitation policies regarding retention and deletion of Client and Authorized User Data.
- Client and Authorized User Responsibility for Data. You will (a) be responsible for Yourcompliance with this Agreement, (b) be responsible for the accuracy, quality and legality of the Client and Authorized User Data that You input to the Services by or on behalf of the Client or yourself and the means by which You acquired such data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify the Company promptly of any such unauthorized access or use, and (d) use the Services only in accordance with the Agreement and applicable laws and government regulations.
- Non-GoCo Providers. The Company, You or third parties may make available products or services that are Non-GoCo Products & Services. The Services may contain features designed to interoperate with Non-GoCo Products & Services. To use such features, You may be required to obtain access to such Non-GoCo Products & Services from providers of such products and services, and may be required to grant access to the Company to Your account(s) associated with such Non-GoCo Products & Services. The Company cannot guarantee the continued availability of the features or the interoperability of such Non-CoCo Products & Services with the Services, and may cease providing and/or supporting such features without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of Non-GoCo Products & Services ceases to make the Non-GoCo Products & Services available in a manner acceptable to the Company and the Company correspondingly takes action to block or prevent the use of such Non-GoCo Products & Services with the Services.
Any usage by You of such Non-GoCo Products & Services, and any exchange of data between You and any Non-GoCo Products & Services provider in relation to any such third party product or service, is solely between You and the applicable Non-GoCo Products & Services provider. The Company does not warrant or support, and is not liable for, any Non-GoCo Products & Services or any data You exchanged with the provider of such Non-GoCo Products & Services or the Non-GoCo Products & Services, whether or not such Non-GoCo Products & Services are designated by the Company as interoperable with the Services, unless expressly provided to the contrary in an Order Form. If You choose to use any Non-GoCo Products & Services in conjunction with one or more of the Services, You grant the Company permission to allow the provider of the Non-GoCo Products & Services to access Your Data through such Non-GoCo Products & Services as required for the interoperation of such Non-GoCo Products & Services with the Services. The Company is not responsible for any use, disclosure, modification or deletion of Your Data resulting from access by such provider of any Non-GoCo Products & Services or the Non-GoCo Applications & Services themselves.
- Confidentiality. Each party agrees: (i) to use the confidential information of the other party (the “Disclosing Party”) only for the purposes associated with, and in accordance with, the terms and conditions of the Agreement; (ii) to use the same degree of care it utilizes to protect its own confidential information, but in no event less than reasonable care consistent with its past practices and any applicable Laws, and to safeguard the Disclosing Party’s confidential information that is provided to it; and (iii) to only disclose confidential information provided by the Disclosing Party only, as allowed, to (1) employees, agents, affiliates and subcontractors with a need to know, and to its auditors and legal counsel, in each case, who are under a written or ethical obligation to keep such information confidential and using standards of confidentiality not less restrictive than those required by the Agreement, or (2) if required by law or regulatory authorities, provided the party which has received the confidential information has given the Disclosing Party prompt notice before disclosure so that it may perform actions in an attempt to prevent disclosure at its sole option. Each party will protect from disclosure any confidential information disclosed by the other party for a period commencing upon the disclosure date until three (3) years thereafter.
- Compelled Disclosure. Each party may disclose Confidential Information of the other party to the extent compelled by law to do so, provided that prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, is given if the party wishes to contest the disclosure.
- DISCLAIMER OF WARRANTY. THE COMPANY HEREBY EXPRESSLY DISCLAIMS ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTIES ARISING OUT OF USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. THE SERVICES AND ANY OTHER MATERIALS, SOFTWARE AND/OR INFORMATION PROVIDED BY THE COMPANY ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND THE COMPANY DOES NOT MAKE ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND THE COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE COMPANY DOES NOT WARRANT THAT THE SERVICES OR ANY OTHER INFORMATION, MATERIALS OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET PARTNER’S, CLIENTS’ OR EMPLOYEES’ REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS WILL BE CORRECTED. In addition, the Company does not provide any warranties regarding (i) the accuracy of the results obtained through use of any of the Services, (ii) the accuracy of the data contained within any of the Services, (iii) that any of the Services will operate error free, or in an uninterrupted fashion, (iv) the security of any of the Services from intrusion or attack, or (v) the network, communications links or infrastructure You use.
- LIMITATION ON LIABILITY. IN NO EVENT SHALL THE COMPANY BE LIABLE TO THE CLIENT OR AUTHORIZED USER, OR ANY THIRD PARTY, FOR ANY LOST REVENUE, PROFIT, OR DATA, BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW AND IN NO EVENT SHALL THE COMPANY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT , TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE, THE AMOUNT PAID, TO ANY ENTITY, FOR CLIENT OR AUTHORIZED USER’S USE OF THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT GIVING RISE TO LIABILITY.
- WAIVER OF TRIAL BY JURY. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, OR RELATING TO, THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
- WAIVER OF CLASS ACTION TYPE RELIEF. ALL CLAIMS BROUGHT BY CLIENT OR AUTHORIZED USER MUST BE BROUGHT IN THE CLIENT OR AUTHORIZED USER’S INDIVIDUAL CAPACITY, AND NOT AS A CLASS MEMBER OR PLAINTIFF IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS THE COMPANY AGREES OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE CLIENT OR AUTHORIZED USER’S CLAIMS.
- Indemnification. The Company will defend the Client or Authorized User against any claim, demand, suit or proceeding made or brought against the Client or Authorized User by a third party alleging that the use of the Services in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights, and will indemnify the Client or Authorized User from any damages, attorney fees and costs finally awarded against the Client or Authorized User as a result of, or for amounts paid by the Client or Authorized User under a court-approved settlement of such claim, provided the Client or Authorized User (a) promptly gives written notice of the claim , (b) gives the Company sole control of the defense and settlement of the claim (except that the Company may not settle any claim unless it unconditionally releases the Client or Authorized User of all liability), and (c) gives the Company all reasonable assistance, at the Company’s expense. If the Company receives information about an infringement or misappropriation claim related to the Services, the Company may in its discretion and at no cost to the Client or Authorized User (i) modify the Services so that it no longer infringes or misappropriates, without breaching the Company’s warranties, (ii) obtain a license for the Client or Authorized User’s continued use of the Services in accordance with this Agreement, or (iii) terminate the Client or Authorized User’s subscriptions for the Services upon 30 days’ written notice. The above defense and indemnification obligations do not apply to the extent a claim arises from the Client or Authorized User’s breach of this Agreement.
The Client or Authorized User will defend the Company against any claim, demand, suit or proceeding made or brought against the Company by a third party alleging that the Client or Authorized User’s Data, or its use of the Services in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law, and will indemnify the Company from any damages, attorney fees and costs finally awarded against the Company as a result of, or for any amounts paid by the Company under a court-approved settlement of such claim, provided the Company (a) promptly gives the Client or Authorized User written notice of the claim , (b) gives the Client or Authorized User sole control of the defense and settlement of the claim (except that the Client or Authorized User may not settle any claim unless it unconditionally releases the Company of all liability), and (c) gives the Company all reasonable assistance, at the Client or Authorized User’s expense.
- Term and Termination. This Agreement, and the rights to access and use the Services commences on the Effective Date and continues until either: (i) all subscriptions hereunder has expired or have been terminated by either party, or (ii) Client or Authorized User’s status changes such that Client or Authorized User is a former client, employee or contractor that is no longer entitled to the benefits hereunder. The Company may terminate this Agreement for any reason immediately by revoking Client or Authorized User’s access to the Services. The term of each subscription associated with this Agreement, whether of Base Services, Purchased Services, Free Services, Free-Trial Services, or Beta Services, shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions for Purchased Services will automatically renew for additional periods equal to one year, unless either party gives the other notice of non-renewal at least thirty (30) days prior to the end of the an applicable subscription term. The Company reserves the right to increase the fees associated with any of the Purchased Services by any amount it deems necessary (in its sole judgment), but if a rate increase is planned, the Company will provide notice of the same to You at least thirty (30) days prior to the end of the applicable subscription term.
- Dispute Resolution. In connection with any dispute between the parties arising from this Agreement, the Parties shall attempt to resolve such dispute by utilizing the procedure specified in this Section 23 herein.
(a) Negotiation by Individuals: To commence resolution of a dispute, either party may send written notice (“Notice”) to the other party containing a concise summary of the dispute and requesting negotiations. Within seven (7) days following receipt of such Notice by the other party, each party will make such investigation as each deems appropriate and will promptly, but in no event later than thirty (30) days from the date of the Notice, communicate to attempt to resolve the dispute. If the dispute has not been resolved within forty five (45) days of the first communication between the parties in furtherance of resolving the dispute, an arbitration proceedings may be commenced by either party, as set forth immediately below in Section 23(b) below.
(b) Arbitration: Arbitration shall commence upon written notice (“Arbitration Notice”) by either party to the other and to the Judicial Arbitration and Mediation Services, Inc. (“JAMS”). Such dispute shall be conducted before a single arbitrator. Such arbitrator shall be a lawyer knowledgeable and experienced in the field of software licensing, and shall not be affiliated with either party, or otherwise have any current or previous relationship or association with either party. Each party shall designate in writing a list of potential arbitrators within thirty (30) days of the Arbitration Notice. The parties consent to use any arbitrator whose name appears on both parties’ list of potential arbitrators, subject to the arbitrator’s availability. If no arbitrator appears on both parties’ lists, or if the parties cannot agree on an arbitrator within sixty (60) days of the Arbitration Notice, the arbitrator shall be selected by the office of the JAMS in Harris County, Texas or, if such office does not exist, the JAMS office nearest to Houston, Texas. After an arbitrator is selected, the parties shall promptly consult with the arbitrator to determine the details of the arbitration process including a schedule and the dates and location of the arbitration hearing. The arbitrator’s decision shall be final and legally binding on both parties and judgment may be entered thereon. Unless provided otherwise herein, the arbitration shall be governed by the applicable JAMS rules, including the Comprehensive Arbitration Rules and Procedures, applicable at the time of the Notice of Arbitration. Each party shall be responsible for its share of the costs of the arbitration hearing as specified in the JAMS rules. In the event a party fails to participate in the arbitration after having been provided Notice, unsuccessfully challenges the arbitrator’s decision, or fails to comply with the arbitrator’s decision, the other party is entitled to costs of the associated litigation, including reasonable attorney’s fees for having to compel arbitration or defend or enforce the award.
- General. This Agreement and all its part are governed by the laws of the State of Texas, without reference to its principles of conflicts of laws. Each party hereby expressly consents to the personal jurisdiction of either the Texas state courts sitting in Harris County or the United States District Court for the Southern District of Texas, Houston Division. The U.N. Convention on Contracts for the International Sale of Goods does not apply. The Company may freely assign this Agreement, without consent. The Client or Authorized User may not assign this Agreement. If any portion hereof is found to be void or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect. This Agreement constitutes the entire agreement between the parties with respect to the Services and supersedes all prior agreements, proposals, representations and undertakings between the parties in relation to the subject matter hereof (whether written or oral) and may not be modified or amended by the Client or Authorized User without the prior written consent of the Company. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. No waiver of any rights arising under this Agreement shall be effective unless in writing and signed by a duly authorized signatory of the party against whom the waiver is to be enforced. No failure or delay by either party in exercising any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy.
THE CLIENT OR AUTHORIZED USER MAY INDICATE ACCEPTANCE OF THIS AGREEMENT AND ALL THE TERMS AND CONDITIONS HEREIN BY LOGGING IN TO THE SERVICE.
YOU ARE REQUIRED TO PERIODICALLY REVIEW THIS SERVICE AGREEMENT, INCLUDING IN SUCH CASES THAT YOU ASSUME A DIFFERENT AUTHORIZED USER ROLE.