This agreement governs your acquisition and use of Services provided by Emplify, Inc., 8626 E. 116th Street, Suite 350, Fishers, IN 46038. By executing an Order Form that references this agreement or by logging on to an Emplify website through which it provides Services, you agree to the terms of this agreement individually and on behalf of any company or legal entity you represent. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms “You,” “Your” or the “Customer” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this agreement and may not use the Services.
You may not access the Services if You are Emplify’s direct competitor, except with Emplify’s prior written consent. In addition, You may not access or use the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on February 18, 2021. It is effective between You and Emplify as of the date of You accepting this Agreement.
“Agreement” means this Master Subscription Agreement.
“Application Services” shall mean the Customer’s access to its administrative console, survey results module, analytics reports, etc.
“Affiliate” shall mean, with respect to a party, any person, partnership, joint venture, corporation or other entity, domestic or foreign, including but not limited to subsidiaries, that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” (or variants of it) shall mean the ability (whether directly or indirectly) to direct the affairs of another by means of ownership, contract or otherwise.
“Beta Services” means Our services that are not generally available to customers.
“Confidential Information” shall have the meaning set forth in Section 7.
“Customer Data” shall mean all electronic data or information submitted by Customer to Emplify or the Application Services.
“Date” shall mean the effective date of this Agreement.
“Duration” shall be as specified in each SOW and shall mean the estimated time from the Project Start Date to complete the Professional Services described in such SOW. Duration is an estimate of the time to complete the Professional Services and assumes that Customer’s availability, participation and cooperation have not delayed the Project Start Date or Emplify’s provision of the Professional Services.
“Emplify Data” shall mean all data created or used by Emplify that is not Customer Data.
“Malicious Code” shall mean viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Non-Public Personal Information” shall mean personally identifiable information, including, without limitation, social security numbers, financial account numbers (i.e. credit card, checking account, savings account, etc.), medical, employment, or insurance numbers, and passport numbers.
“Order Form” shall mean the ordering documents, including any addenda and supplements thereto, for Customer’s or Affiliates’ purchases of Services from Emplify that are executed by the parties from time to time. All Services ordered on an Order Forms shall be provided subject to this Agreement. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Professional Services” shall mean the implementation, integration, consulting and similar services described in a Statement of Work.
“Project Start Date” shall mean the date mutually agreed upon by the parties following execution of an Order Form, upon which date Emplify shall commence provision of Professional Services under a Statement of Work.
“Services” shall mean the Application Services and Professional Services collectively.
“Start Date” shall mean the date on which Emplify shall initiate Services work, including strategy, implementation and/or migration planning, or make the Application Services available to Customer as set forth in an applicable Order Form.
“Statement of Work” or “SOW” shall mean the document describing the scope and schedule of Professional Services to be performed by Emplify for Customer. Each SOW shall be attached to an Order Form and shall be governed by the terms of this Agreement.
“Subscription Term” shall mean the subscription period set forth on an applicable Order Form.
“Term” shall have the meaning set forth in Section 11.1.
“User” means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
2. APPLICATION SERVICES
2.1 Provision of Application Services. Emplify shall make the Application Services available to Customer pursuant to this Agreement and all Order Forms during a Subscription Term. Customer’s purchase of Application Services is not contingent upon the delivery of any future functionality or features. All rights not expressly granted to Customer hereunder are reserved by Emplify and its licensors.
3. USE OF THE APPLICATION SERVICES
3.1 Emplify Responsibilities. Emplify shall: (a) provide the Application Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (b) use commercially reasonable efforts to ensure that the Application Services perform in material compliance with any documentation or user guides provided to Customer; (c) provide standard support to Customer at no additional charge (d) use commercially reasonable efforts to make the Application Services available 24 hours a day, seven days a week, except for: (i) planned downtime (for which Emplify shall make good faith efforts to give at least five business days’ notice via email, the Application Services and/or by other means and which Emplify shall schedule to the extent reasonably practicable during the weekend hours from 10:00 p.m. ET Friday to 4:00 a.m. ET Saturday); or (ii) any unavailability caused by circumstances beyond Emplify’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Emplify employees), computer, telecommunications, internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Emplify’s possession or reasonable control, and denial of service attacks. We will be responsible for the performance of Emplify’s personnel (including employees and contractors) and their compliance with Emplify obligations under this Agreement, except as otherwise specified herein.
3.2 Customer Responsibilities. Customer is responsible for all activities that occur in Customer’s account(s). Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Application Services, and notify Emplify promptly of any such unauthorized access or use; and (c) comply with all applicable local, state, federal and foreign laws in using the Application Services. Customer understands and acknowledges that: (i) Emplify may, in its reasonable discretion, refuse to distribute any message content that Emplify reasonably believes is defamatory, infringing, or otherwise unlawful; (ii) Emplify may, in its reasonable discretion, refuse to distribute any push notification to any recipient that Emplify reasonably believes is unlawful; (iii) Emplify has no obligation to review message content, recipient addresses or other Customer Data; (iv) all recipient addresses are supplied solely by Customer and Emplify has no obligation to supply or “scrub” any message recipient list; and (v) Customer is solely responsible for the creation, initiation and sending of messages via the Application Services, including, but not limited to, the content, recipients, and timing of such messages.
3.3 Usage Guidelines. Customer will not (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than You or Users, (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Application Services available to any third party except as contemplated by this Agreement; (c) send via or store within the Application Services infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (d) send via or store within the Application Services any unsolicited commercial or non-commercial communication; (e) send via, upload to, or store within the Application Services any Malicious Code; (f) interfere with or disrupt the integrity or performance of the Application Services or the data contained therein; or (g) attempt to gain unauthorized access to the Application Services or its related systems or networks.
3.4 Beta Services. From time to time, We may invite Customer to try Beta Services at no charge. Customer may accept or decline any such trial in Customer’s sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. Emplify may discontinue Beta Services at any time in Emplify’s sole discretion and may never make them generally available. Emplify will have no liability for any harm or damage arising out of or in connection with a Beta Service.
4. PROFESSIONAL SERVICES
4.1 Who May Order. Customer or an Affiliate may obtain Professional Services from Emplify. Each Customer entity purchasing Professional Services shall perform its respective obligations in accordance with the terms and conditions of this Agreement and any relevant SOW.
4.2 Personnel; Use of Subcontractors. Subject to the provisions below and unless otherwise specified in the applicable SOW, Emplify shall supply all materials, equipment, and qualified personnel necessary to perform the Professional Services. Emplify may use subcontractors to perform the Professional Services. Any subcontractors used by Emplify shall have executed a written agreement with Emplify that obligates any such subcontractor to protect Customer’s Confidential Information to the same extent as is required of Emplify hereunder. Emplify shall be responsible for all acts and omissions of any such subcontractor to the same extent as if Emplify had performed the Professional Services.
4.3 Relationship to the Application Services. The Professional Services may be in support of Customer’s subscription to use the Application Services pursuant to an Order Form. Except as specifically set forth in a Statement of Work, Customer’s purchase of Professional Services is not contingent upon the delivery of any future functionality or features in the Application Services, nor is it dependent upon any oral or written public comments made by Emplify with respect to future functionality or features.
5. FEES AND PAYMENT
5.1 Service Fees and Expenses. Customer shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified in an Order Form, fees are based on the Services purchased and not actual usage; payment obligations are non-cancelable; fees paid are non-refundable; and the Services purchased cannot be decreased during the relevant Subscription Term. Customer shall reimburse Emplify for all reasonable, pre-approved travel and out-of-pocket expenses incurred in connection with Emplify’s performance of Services.
5.2 Professional Services Fees.
A. Fixed Price. If an Order Form provides for payment of Professional Services fees on a “Fixed Price” basis, Emplify will invoice Customer for work performed as set forth in such Order Form. If Emplify is delayed in completing the Professional Services beyond the estimated Duration of the SOW and such delay is due to Customer’s unavailability, failure to cooperate, failure to provide information required by Emplify to provide the Professional Services, and/or provision of materially inaccurate or misleading information, Emplify shall notify Customer that its performance of the Professional Services may be delayed. In the event that any such Customer delay materially adversely impacts Emplify’s ability to perform such Professional Services, Emplify shall be entitled to an amendment to the SOW to address any such adverse impacts (e.g., an equitable extension of time and/or increase in fee).
B. Time & Materials. If an Order Form provides for payment of Professional Services Fees on a time and materials (or “T&M”) basis, the Professional Services shall be provided at Emplify’s T&M rates in effect as of the Project Start Date. On a T&M engagement, if an estimated total amount is stated in the applicable Order Form, that amount is solely a good faith estimate for Customer’s budgeting and Emplify’s resource scheduling purposes and not a guarantee that the Professional Services will be completed for that amount; the actual amount may be higher or lower. If the estimated amount is expended, Emplify will continue to provide Professional Services on a T&M basis under the same rates and terms.
5.3 Invoicing and Payment. Except as otherwise provided, all fees are quoted and payable in United States dollars. Fees for Services will be invoiced in advance and in accordance with the applicable Order Form (or SOW if applicable). Customer shall pay invoices as stated in the Order Form (or SOW if applicable). Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Emplify and notifying Emplify of any changes to such information within the Application Services.
5.4 Overdue Payments. If any invoiced amount is not received by Emplify by the due date, then without limiting Emplify’s rights or remedies, (a) those charges may accrue late interest 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) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.3 (Invoicing and Payment).
5.5 Suspension of Service and Acceleration. Customer’s failure to pay as set forth herein shall constitute a material breach of this Agreement. If any amount owing by You under this or any other agreement for Emplify’s services is 30 or more days overdue, We may, without limiting Emplify’s other rights and remedies, suspend Emplify’s services to You until such amounts are paid in full. We will give You at least 10 days’ prior notice that Your account is overdue, before suspending services to You and Emplify may terminate this Agreement and any or all outstanding Order Forms, and pursue all available legal and equitable remedies. In any action arising from or related to Customer’s failure to timely pay any amount owed to Emplify, Emplify shall be entitled to recover its full costs and expenses related to such action, including but not limited to its reasonable attorneys’ fees and legal expenses.
5.6. Payment Disputes. We will not exercise Emplify’s rights under Section 5.4 (Overdue Payments) or 5.5 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
5.7 Taxes. Unless otherwise stated, Emplify’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Emplify’s net income or property. If Emplify has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Emplify with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Emplify is solely responsible for taxes assessable against Emplify based on its income, property and employees.
5.8. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Emplify regarding future functionality or features.
6. PROPRIETARY RIGHTS
6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Emplify reserves all rights, title and interest in and to the Application Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.2 Restrictions. Customer shall not (a) access the Application Services in order to build a competitive product or service.
6.3 Customer Data. As between Emplify and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Customer shall have the right to access and download Customer Data it has supplied to Emplify as provided herein. Customer grants to Emplify a perpetual, non-exclusive, irrevocable, worldwide right and license to use and disclose any and all Customer Data for the sole purpose of providing Services to Customer, or for Emplify’s business purposes during the term hereof and thereafter, including but not limited to benchmarking, data mining, or sharing the same with others; provided however, that any such usage or disclosure not in the course of providing Services to Customer only includes data that is aggregated and anonymized, and therefore does not constitute personally identifiable information.
6.4 Improvements. Emplify shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the Application Services or any new programs, upgrades, modifications or enhancements developed by Emplify in connection with rendering the Application Services to Customer, even when refinements and improvements result from Customer’s request. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in Emplify by virtue of this Agreement or otherwise, Customer hereby transfers and assigns (and, if applicable, shall cause its Affiliates to transfer and assign) to Emplify all rights, title, and interest which Customer or its Affiliates may have in to such refinements and improvements.
6.5 Professional Services Deliverables. Emplify hereby grants Customer a worldwide, perpetual, non-exclusive, non- transferable, royalty-free license to use for its internal business purposes anything developed by Emplify for Customer under a Statement of Work (“Deliverables”). Emplify shall retain all ownership rights to the Deliverables.
6.6 Publicity; Trademarks. Neither party may issue press releases or any other public announcement of any kind relating to this Agreement without the other party’s prior written consent. Notwithstanding the foregoing, during the Term, either party may include the name and logo of the other party in lists (including on its website) of customers or vendors in accordance with the other party’s standard logo and/or trademark usage guidelines. In addition, Emplify may use the trademarks and trade names of Customer solely in connection with its authorized provision of the Application Services. Except as set forth herein, neither party may use the trademarks and trade names of the other party without the prior written consent of the other party.
7.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that (a) if disclosed orally is designated as confidential at the time of disclosure, (b) if disclosed in writing is marked as “Confidential” and/or “Proprietary”, or (c) that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, provision of the Services, business and marketing plans, technology and technical information, product designs, and business processes. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party. Confidential Information (except for Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
7.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to those of its and its Affiliates’ employees and contractors who need to know such information for purposes of performing the Services and certifies that such employees and contractors have agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those in this Agreement. The Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event shall it use less than a reasonable degree of care.
7.3 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
7.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
7.5 Survival. Notwithstanding the expiration or termination of this Agreement for any reason, the obligations of confidentiality and non-use set forth in this Section shall survive expiration or termination of this Agreement.
8. WARRANTIES AND DISCLAIMERS
8.1 Mutual Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement; that the signatory hereto has the authority to bind the applicable organization; and when executed and delivered, this Agreement will constitute the legal, valid, and binding obligation of each party, enforceable in accordance with its terms.
8.2 Customer Warranties. Customer represents and warrants that: (a) the Customer Data shall not infringe on any copyright, patent, trade secret or other proprietary right held by any third party; (b) Customer does not and will not engage in any activity in violation of any statute, law, rule, regulation or policy, including but not limited to any statute, law, rule, regulation or policy relating to privacy rights or the General Data Protection Regulation (GDPR); (c) Customer does not and will not use the Application Services to advertise or otherwise promote any activities that would violate applicable law; (d) Customer has the right to provide to Emplify with all Customer Data for use by Emplify as provided herein and that such use will not violate any statute, law, rule, regulation or policy, including any relating to privacy rights or the General Data Protection Regulation (GDPR); and (e) Customer will not include in the Customer Data any Non-Public Personal Information.
8.3 Emplify Application Services Warranties. Emplify represents and warrants that: (a) the functionality of the Application Services will not be materially decreased during a Subscription Term; (b) Emplify shall utilize software and other security means designed to prevent the Application Services from containing or transmitting Malicious Code; and (c) it owns or otherwise has sufficient rights in the Application Services to grant to Customer the rights to use the Application Services granted herein.
8.4 Emplify Professional Services Warranties. Emplify represents and warrants that the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. Customer must report any deficiencies in the Professional Services to Emplify in writing within 90 days of performance of such Professional Services in order to receive warranty remedies. For any breach of the warranty in this Section 8.4, Customer’s exclusive remedy, and Emplify’s entire liability, shall be the re-performance of the Professional Services. If Emplify is unable to re-perform the Professional Services as warranted within 30 days of receipt of notice of breach, Customer’s exclusive remedy shall be a refund of the fees paid to Emplify for the deficient Professional Services.
8.5 Disclaimer. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, EMPLIFY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY THAT ANY SERVICE OR ADVICE MEETS ANY STANDARD OF CARE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES, NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY EMPLIFY.
9.1 By Emplify. Emplify shall defend, indemnify and hold Customer, its Affiliates, and their respective officers, directors, and employees, harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Customer by a third party alleging that Customer’s use of the Application Services or Deliverables within the scope of this Agreement infringes the intellectual property rights of such third party; provided, however, that Emplify shall have no such indemnification obligation to the extent such infringement: (a) relates to use of the Application Services or Deliverables in combination with other software, data products, processes, or materials not provided by Emplify or if the infringement would not have occurred but for the combination; (b) arises from or relates to modifications to the Application Services or Deliverables not made or authorized by Emplify; or (c) where Customer continues the activity or use constituting or contributing to the infringement after notification thereof by Emplify.
9.3 Procedure. As an express condition to the indemnifying party’s obligation under this Section 9, the party seeking indemnification must: (a) promptly notify the indemnifying party in writing of the applicable Claim for which indemnification is sought; and (b) provide the indemnifying party with all non-monetary assistance, information and authority reasonably required for the defense and settlement of such Claim. The indemnifying party may select counsel for defense of the Claim and direct the course of any litigation or other disputed proceedings concerning the Claim. The indemnified party may select its own counsel and direct its own defense of a Claim if it chooses to do so, but it must bear the costs of its own counsel and any activities in any disputed proceeding conducted by counsel of its choosing. The indemnifying party may settle any Claim, to the extent it seeks a money payment, with or without the consent of the indemnified party. The indemnifying party must obtain the indemnified party’s consent to any settlement to the extent it consents to injunctive relief or contains contract terms governing future activities that would materially affect the indemnified party’s business or interests, said consent not to be unreasonably withheld, conditioned or delayed.
10. LIMITATION OF LIABILITY
10.1 Limitation of Liability. IN NO EVENT SHALL EMPLIFY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $100,000 OR THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING ANY INCIDENT(S) GIVING RISE TO LIABILITY. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT).
10.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUE OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 Time to File Claim. NO CLAIM MAY BE BROUGHT BY CUSTOMER UNDER THIS AGREEMENT MORE THAN ONE YEAR AFTER THE ACCRUAL OF THE CLAIM.
11. TERM AND TERMINATION
11.1 Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
11.2 Term of Subscriptions. Subscriptions to the Application Services commence on the Start Date and continue for the Subscription Term specified in the applicable Order Form. Unless otherwise set forth in an Order Form, subscriptions to the Application Services shall automatically renew for additional periods of one year for the fees set forth in the applicable Order Form unless either party gives the other written notice of non-renewal at least 30 days prior to the end of the relevant Subscription Term. The per unit pricing increase during any automatic renewal term will not exceed 5% of the pricing for the applicable purchased Services in the immediately prior subscription term, unless the pricing in the prior term was designated in the relevant Order Form as promotional or one-time. Customer acknowledges that Application Services pricing includes a per unit discount for automatic renewal, and removal of automatic renewal will result in the removal of the corresponding discount. Renewal invoices may be sent in advance of the renewal date, and will be due on the renewal start date.
11.3 Term of Statements of Work. Professional Services shall commence on the Project Start Date and shall continue until such Professional Services are completed, unless an End Date is defined in the applicable Order Form or SOW, in which case the Professional Services shall continue through the End Date.
11.4 Termination for Cause. A party may terminate this Agreement for cause: (a) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.5 Refund or Payment upon Termination. Upon any termination for cause by Customer in accordance with Section 11.4 (Termination for Cause), Emplify shall refund Customer any prepaid fees covering the remainder of the Subscription Term after the date of termination. Termination for cause by Customer shall not relieve Customer of the obligation to pay any fees accrued or payable to Emplify prior to the effective date of termination. Upon any termination for cause in accordance with section 11.4 by Emplify, Customer shall remain obligated to pay all fees owed for the remainder of the Subscription Term, all of which fees shall become immediately due and payable in full.
11.6 Customer Data Access. Following the termination or expiration of this Agreement, Customer shall have 30 days to access its account and download / export Customer Data and reports previously made available to Customer by Emplify. Upon expiration of such 30-day period, Emplify shall convert Customer’s account to an inactive status. Emplify reserves the right to delete all Customer Data after 60 days of Customer’s account converting to inactive status.
11.7 Surviving Provisions. Section 1 (DEFINITIONS) and Sections 5 through 12 (FEES AND PAYMENTS, PROPRIETARY RIGHTS, CONFIDENTIALITY, WARRANTIES AND DISCLAIMERS, INDEMNIFICATION, LIMITATION OF LIABILITY, TERM AND TERMINATION, and GENERAL PROVISIONS) except for section 9.1 shall survive any termination or expiration of this Agreement.
12. GENERAL PROVISIONS
12.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
12.2 Government Contracts. Emplify’s performance of its obligations under this Agreement is not related to Customer’s performance of any government contracts it has, nor does it involve performing, undertaking or assuming any obligation that Customer may have under any government contract. Customer will notify Emplify in writing any time such a situation arises or appears it may arise so that Emplify can determine if it wishes to alter its contractual relationship under those changed circumstances.
12.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.4 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) the second business day after mailing; (c) the second business day after sending by confirmed facsimile; or (d) the second business day after sending by email. Notices to Emplify shall be addressed to the attention of its General Counsel. Notices to Customer shall be addressed to Customer’s signatory of this Agreement unless otherwise designated below.
12.5 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.6 Severability. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.
12.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.8 Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of Indiana, without regard to its conflicts of laws rules. The state and federal courts located in Hamilton or Marion County, Indiana shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party consents to the exclusive jurisdiction and venue of such courts. Each party also waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12.9 Entire Agreement. This Agreement, including all Exhibits, Order Forms and Statements of Work, 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 the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Exhibit, Order Form, or Statement of Work, the terms of this Agreement shall prevail unless expressly stated otherwise in such Exhibit, Order Form, or Statement of Work. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms and Statements of Work) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. The language used in this Agreement shall be deemed to be language chosen by both parties hereto to express their mutual intent, and no rule of strict construction against either party shall apply to rights granted herein or to any term of condition of this Agreement.
12.10 Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument. Delivery of an executed counterpart signature page of this Agreement by facsimile, email, or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.
12.11 DISPUTES, BINDING INDIVIDUAL ARBITRATION, AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS
12.11.1 Disputes. The terms of this Section 12.11 shall apply to all Disputes between you and Emplify. The term “Dispute” is meant to have the broadest meaning permissible under law and includes any dispute, claim, controversy or action between you and Emplify arising out of or relating to this Agreement, Emplify Services, or other transaction involving you and Emplify, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis, provided however that “Dispute ” DOES NOT INCLUDE: (a) IP CLAIMS, or more specifically, a claim or cause of action for (i) trademark infringement or dilution, (ii) patent infringement, (iii) copyright infringement or misuse, or (iv) trade secret misappropriation (an “IP Claim”); or (b) a claim by Emplify against you for payment of amounts you owe (a “Collections Claim”). You and Emplify also agree, notwithstanding Section 12.11.6, that a court, not an arbitrator, may decide if a claim or cause of action is for an IP Claim.
12.11.2 Binding Arbitration. You and Emplify agree that all Disputes shall be resolved by binding arbitration according to this Agreement. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED. Pursuant to this Agreement, binding arbitration shall be administered by JAMS, a nationally recognized arbitration authority, pursuant to its code of procedures then in effect, but excluding any rules that permit joinder or class actions in arbitration (for more detail on procedure, see Section 12.11.6 below). You and Emplify understand and agree that (a) the Federal Arbitration Act (9 U.S.C. §1, et seq.) governs the interpretation and enforcement of this Section 12.11, (b) this Agreement memorializes a transaction in interstate commerce, and (c) this Section 12.11 shall survive termination of this Agreement.
12.11.3 Pre-Arbitration Steps and Notice. Before submitting a claim for arbitration, you and Emplify agree to try, for sixty (60) days, to resolve any Dispute informally. If Emplify and you do not reach an agreement to resolve the Dispute within the sixty (60) days, you or Emplify may commence an arbitration. Notice to Emplify must be addressed to: Emplify, Inc., ATTN: Legal Department, 11787 Lantern Rd #201, Fishers, IN 46038 (the “Emplify Address”). The Dispute Notice to you will be sent to the most recent address Emplify has in its records for you. For this reason, it is important to notify us if your address changes by writing us at the Emplify Address above. Notice of the Dispute shall include the sender’s name, address and contact information, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). Following receipt of the Dispute Notice, Emplify and you agree to act in good faith to resolve the Dispute before commencing arbitration.
12.11.4 Small Claims Court. Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state or municipality if the action is within that court’s jurisdiction and is pending only in that court.
12.11.5 WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND EMPLIFY AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. CLASS ACTION LAWSUITS, CLASS-WIDE ARBITRATIONS, PRIVATE ATTORNEY-GENERAL ACTIONS, AND ANY OTHER PROCEEDING WHERE SOMEONE ACTS IN A REPRESENTATIVE CAPACITY ARE NOT ALLOWED. ACCORDINGLY, UNDER THE ARBITRATION PROCEDURES OUTLINED IN THIS SECTION, AN ARBITRATOR SHALL NOT COMBINE OR CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES TO AN ARBITRATION PROCEEDING.
12.11.6 Arbitration Procedure. If you or Emplify commences arbitration, the arbitration shall be governed by the rules of JAMS that are in effect when the arbitration is filed, excluding any rules that permit arbitration on a class or representative basis (the “JAMS Rules”), available at http://www.jamsadr.com or by calling 1-800-352-5267, and under the rules set forth in this Agreement. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by the terms of this Agreement. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable. Notwithstanding this broad delegation of authority to the arbitrator, a court may determine the limited question of whether a claim or cause of action is for an IP Claim or a Collections Claim, which are excluded from the definition of “Disputes” in Section 12.11.1 above. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator may award you the same damages as a court could, and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. In some instances, the costs of arbitration can exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. The arbitrator’s award is binding and may be entered as a judgment in any court of competent jurisdiction. You may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone shall take place in a location reasonably accessible from your primary residence, or in Hamilton County, Indiana, at your option.
A. Initiation of Arbitration Proceeding. If either you or Emplify decides to arbitrate a Dispute, both parties agree to the following procedure:
(i) Write a Demand for Arbitration. The demand must include a description of the Dispute and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at http://www.jamsadr.com (“Demand for Arbitration”).
(ii) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to: JAMS, 71 S. Wacker Drive, Suite 2400, Chicago, IL 60606 U.S.A.
(iii) Send one copy of the Demand for Arbitration to the other party (same address as the Dispute Notice), or as otherwise agreed by the parties.
B. Hearing Format. During the arbitration, the amount of any settlement offer made shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Emplify is entitled. The discovery or exchange of non-privileged information relevant to the Dispute may be allowed during the arbitration.
C. Arbitration Fees. All JAMS filings fees for any arbitration shall be paid by the party initiating arbitration and the charges for any arbitrator shall be split equally between us.
12.11.7 Severability. If any provision in this Section 12.11 is found to be unenforceable, that provision shall be severed with the remainder of this Agreement remaining in full force and effect.