July 01, 2020
These Terms of Service (the “Terms“) and any accompanying or future Order Form you enter into with Overfetch (“Overfetch” or “we“) issued under these Terms (together with these Terms, the “Agreement“) govern your access to and use of the services provided to you by Overfetch (the “Overfetch Services“), including as made available through our website at overfetch.com. As set forth in an Order Form or as otherwise agreed to by Overfetch, the Overfetch Services may include one or more of the following:
(a) subscription software data processing services (the “Platform Services“),
(b) subscription support services (the “Support Services“),
(c) professional services (the “Professional Services“),
(d) any other services the parties agree in an Order Form that Overfetch will provide. If you are acting on behalf of an entity, you represent and warrant that you are authorized to bind that entity to these Terms, in which case “Customer,” “you,” or “your” shall refer to that entity (otherwise, such terms refer to you as an individual). By accepting these Terms, either by executing these Terms separately or by executing an initial Order Form that indicates your acceptance of these Terms (an “Initial Order Form“), whether by signature or by clicking an “I Accept” button or checkbox, you agree in full to these Terms. If you do not have the authority to bind your entity or do not agree with these Terms, you must not accept these Terms and may not use the Overfetch Services. The “Effective Date” of these Terms is the earliest to occur of the effective date of the Initial Order Form, the date you execute these Terms, or the date you first access or use the Overfetch Services.
Certain terms not defined elsewhere in the Agreement are defined below in this Section. Capitalized terms used but not defined in an Order Form shall have the meaning assigned to them, if any, within these Terms.
2.1 “Acceptable Use Policy” means the acceptable use policy governing the Platform Services, described at https://overfetch.com/blog/acceptable-use-policy (or such other location as Overfetch may provide, and as may be updated periodically).
2.2 “Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.
2.3 “Applicable Data Protection Laws” means all worldwide data protection and privacy Laws applicable to the processing of the Personal Data in question, including without limitation to the extent applicable, those of the United States, the European Economic Area (including the European Union and their member states, Switzerland, and the United Kingdom) (“EEA“), Canada, Australia, Japan, and Singapore.
2.4. “Authorized User” means employees or agents of Customer (or other individuals solely to the extent explicitly permitted in an Order Form) selected by Customer to access and use the Subscription Services.
2.5. “BAA” means a business associate agreement as defined by HIPAA (or substantively similar agreement if you are not in the United States and/or are not regulated by HIPAA), governing the parties’ respective obligations with respect to any PHI that may be contained within Customer Content.
2.6. “Beta Service” means any Overfetch Service (or feature, or functionality of a Overfetch Service) which is clearly designated as “beta”, “experimental”, “preview”, “trial” or similar designation, that is provided prior to general commercial release, and that Overfetch at its sole discretion may make available to Customer, and Customer at its sole discretion elects to use.
2.7. “Confidential Information” means any business or technical information disclosed by either party to the other that is designated as confidential at the time of disclosure or that, under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Without limiting the foregoing, all Customer Content is considered to be Customer’s Confidential Information, all non-public elements of the Overfetch Services and any Beta Services are considered to be Overfetch’s Confidential Information, and the terms of this Agreement, any information that either party derives relating to the conduct or performance of the other party’s personnel, services or Systems, and any information that either party conveys to the other party concerning data security measures, incidents, or findings constitute Confidential Information of both parties. Confidential Information shall not include information that the receiving party can demonstrate is or becomes publicly known through no fault of the receiving party; is, when it is supplied, already known to whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or was independently developed by the receiving party without the use of or reference to the Confidential Information.
2.8. “Control” or “Controlled” means, whether direct or indirect:
(a) the beneficial ownership of greater than fifty percent (50%) of the voting equity securities, or the substantively equivalent voting interests, of an entity;
(b) the ability to determine the strategic direction or operating decisions of an entity.
2.9. “Customer Content” means all Customer Data, Customer Instructional Input, and Customer Results.
2.10. “Customer Data” means all the data, other than Customer Instructional Input, made available by Customer and its Authorized Users for processing by, or use within, the Subscription Services.
2.11. “Customer Instructional Input” means information other than Customer Data that Customer inputs into the Platform Services to direct how the Platform Services process Customer Data, including without limitation the code and any libraries (including third party libraries) Customer utilizes within the Platform Services.
2.12. “Customer Results” means any output Customer or its Authorized Users generate from their use of the Platform Services.
2.13. “Documentation” means the documentation related to the Platform Services located at https://overfetch.com/blog/documentation (or such other location as Overfetch may provide, and as may be updated periodically).
2.15. “Excluded Claims” means claims arising from personal injury or death caused by the negligence of a party, its employees or agents; fraud or fraudulent misrepresentation; Overfetch’s indemnification obligations for an IP Claim; or Customer’s indemnification obligations.
2.16. “Fees” means all amounts payable for Overfetch Services under an applicable Order Form.
2.17. “HIPAA” means the Health Insurance Portability and Accountability Act of 1996 as it may be amended from time to time, and any regulations issued under it.
2.18. “Intellectual Property” or “IP” means anything protectable by an Intellectual Property Right.
2.19. “Intellectual Property Rights” means all worldwide intellectual property rights available under applicable law including without limitation rights with respect to patents, copyrights, moral rights, trademarks, trade secrets, design rights, know-how, and databases.
2.20. “Laws“ means any international, federal, state, provincial or other local laws, rules, regulations, ordinances or judicial decisions enacted or issued by a court or other governmental authority of any country, state, province, county, city or other municipality, and any self-regulatory regimes applicable to Customer’s use of the Overfetch Services.
2.21. “Monthly Pay-As-You-Go Service” means the Platform Services provided on a month-to-month basis with payment based only on the Customer’s usage of the Platform Services during the billing month.
2.22. “Notification Email Address” means the email address(es) designated by the Customer in the Order Form.
2.23. “Order Form” means an order form, online order (including click-thru setup of the Platform Services) or similar agreement, including any exhibits or attachments thereto, for the provision of Overfetch Services, entered into by the parties, incorporated by reference into, and governed by, the Agreement.
2.24. “PCI-DSS” means the Payment Card Industry Data Security Standard.
2.25. “Personal Data” shall have the meaning given to such term (or substantively equivalent term) under the Applicable Data Protection Laws.
2.26. “PHI” means health information regulated by HIPAA or by any similar privacy Law governing the use of or access to health information.
2.27. “Subscription Services” means the Platform Services and Support Services.
2.28. “System” means any application, computing or storage device, or network.
3. Overfetch Services.
3.1. Order Forms.
3.1.1. Minimum Terms.
Order Forms for Overfetch Services shall identify:
(a) specific Overfetch Services to be provided;
(b) any limitations on permitted use that may differ from those set forth in these Terms;
(c) the service term or other timing considerations;
(e) any applicable limitations on number or type of Authorized Users;
(f) any other applicable terms and conditions (“Minimum Order Terms“).
3.1.2. Direct Orders.
Customer may submit Order Forms directly through Overfetch (each, a “Direct Order“).
3.2. Subscription Services.
3.2.1. Authorized Users.
22.214.171.124. Selecting Authorized Users. If we have agreed to provide you with Subscription Services, you may select Authorized Users to access and use the Subscription Services, subject to the restrictions set forth below, and to any numeric or other limits established in an Order Form or as otherwise agreed to by the parties. You must obtain separate credentials (user IDs and passwords) via the Subscription Services for each Authorized User.
126.96.36.199. Your Responsibilities Regarding Authorized Users. You shall at all times be responsible for and expressly assume the risks associated with all use of the Subscription Services under an Authorized User’s account (including for the payment of Fees related to such use), whether such action was taken by an Authorized User or by another party, and whether or not such action was authorized by an Authorized User, provided that such action was not (a) taken by Overfetch or by a party acting under the direction of Overfetch or (b) an action by a third party that Overfetch should reasonably have prevented. This responsibility includes the security of each Authorized User’s credentials, and you shall not share (and shall instruct each Authorized User not to share) such credentials with any other person or entity, or otherwise permit any other person or entity to access or use the Subscription Services, except to the extent permitted in an Order Form.
3.2.2. Provision of the Subscription Services.
Subject to your, and your Authorized Users’, compliance with the terms and conditions of this Agreement (including payment of any Fees as due under Section 6 (Payment Terms)), Overfetch will provide you with the Subscription Services, and you and your Authorized Users may access and use the Subscription Services solely for your internal business purposes, unless any other permitted use is set forth in an applicable Order Form. Overfetch reserves the right to improve or otherwise modify its internal System architecture at any time subject to maintaining appropriate industry standards of practice relating to the provision and security of the Subscription Services, and provided that any such modification does not materially diminish the core functionality of the Subscription Services. As between the parties, you retain all ownership rights in Customer Data, Customer Results and, subject to Overfetch rights in Usage Data (as defined in Section 4.3.1), Customer Instructional Input, and any other information or materials you provide to Overfetch to enable Overfetch to perform any of the Overfetch Services. Additionally, to the extent Customer utilizes third party open source libraries within the Customer Instructional Input, the foregoing shall not be read to imply ownership by Customer in such libraries.
3.2.3. Shared Responsibility Deployment.
188.8.131.52. Generally. You acknowledge that the Platform Services are implemented in a manner that each party must undertake certain technical and organizational measures in order to protect the Platform Services and Customer Content. Without limiting the foregoing, Customer acknowledges and agrees that
(a) while certain Customer Data may occasionally be present within the Platform Services (e.g., within the Customer Results), the Platform Services are not designed to archive or permanently retain Customer Data, but merely to provide an environment to facilitate Customer’s processing of Customer Data within the Customer controlled System by permitting Customer to generate and execute Customer Instructional Input and view Customer Results;
(b) Overfetch and the Platform Services do not provide backup services or disaster recovery to enable recovery of Customer Data. Accordingly, and without limiting the foregoing, but subject to Section 12.1, Overfetch is not responsible for any loss, destruction, alteration, or corruption of Customer Content, except to the extent caused by the gross negligence or willful misconduct of Overfetch or to the extent caused by any third party that Overfetch should reasonably have prevented from having access.
184.108.40.206. Customer Responsibilities. Customer acknowledges and agrees that Customer is responsible for
(a) protecting the security of all Customer credentials used to access the Subscription Services (with Overfetch also responsible for taking adequate steps to protect Customer credentials to the extent such credentials are within the control of Overfetch);
(b) securing the Customer System (with such steps to include without limitation the regular rotation of access keys and other industry standard steps to preclude unauthorized access);
(c) backing up Customer Instructional Input (e.g., via Github or other third party systems);
(d) backing up and securing Customer Data under Customer’s control within the Customer controlled System;
(e) any security or other issues resulting from any Customer Instructional Input, and Customer expressly assumes the risks associated with the foregoing responsibilities.
220.127.116.11. Overfetch Responsibilities. Overfetch acknowledges and agrees that, as between the parties and except to the extent caused by the action or intentional or negligent inaction of Customer or Customer’s Authorized Users, including without limitation any customizations or configurations of the Platform Services by Customer or anything specified to be Customer’s responsibility in (18.104.22.168.), above, Overfetch is primarily responsible for
(a) the operation (excluding to the extent such operation is directed by the Customer Instructional Content) of the Overfetch Platform Services and the Overfetch software that operates the computing resources in the Customer System;
(b) implementing reasonable technical and organizational measures designed in accordance with the ISMS Standard (defined below) to protect the security of the foregoing. Additionally, while it is Customer’s responsibility to back up Customer Instructional Input, Overfetch will, at Customer’s reasonable request, provide commercially reasonable assistance with recovery efforts where reasonably possible.
3.3. Professional Services.
Terms regarding the delivery of Professional Services, if applicable, shall be set forth in an Order Form.
3.4. Downloadable Services.
Overfetch may make available to you certain Overfetch Services as software from time to time in a downloadable manner (“Downloadable Services“). Unless expressly stated otherwise at the time of download or as otherwise agreed by Overfetch, Downloadable Services may only be used as a part of the Overfetch Services. You are granted a non-exclusive, royalty-free right and license to use and copy during the term of this Agreement the Downloadable Services solely as necessary to enable your use of the Overfetch Services.
3.5. Beta Services.
If you elect to receive any Beta Services offered by Overfetch, you agree that, in addition to adhering to all other restrictions generally applicable to your use of the Subscription Services under this Agreement and any requirements set forth by Overfetch in writing regarding the particular Beta Services, you shall not use such Beta Services for production workloads or for any mission-critical work, and that you shall not use sensitive data in conjunction with such Beta Services unless explicitly permitted in an Order Form.
You are under no duty to provide any suggestions, enhancement requests, or other feedback regarding the Overfetch Services (“Feedback“). If you choose to offer Feedback to Overfetch, you hereby grant Overfetch a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable, assignable license to incorporate into the Overfetch Services or otherwise use any Feedback Overfetch receives from you. You also irrevocably waive in favor of Overfetch any moral rights which you may have in such Feedback pursuant to applicable copyright law.
3.7. Ownership of the Overfetch Services.
Except as expressly set forth in this Agreement, Overfetch retains all Intellectual Property Rights and all other proprietary rights related to the Overfetch Services. You shall not delete or alter the copyright, trademark, or other proprietary rights notices or markings appearing within the Overfetch Services as delivered to you. You agree that the Overfetch Services are provided on a non-exclusive basis and that no transfer of ownership of Intellectual Property Rights shall occur. You further acknowledge and agree that portions of the Overfetch Services, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets and other Intellectual Property Rights of Overfetch and its licensors.
4. Customer Obligations; Customer Data.
4.1. Customer Responsibilities.
In addition to the responsibilities set forth in Section 3.2.3, Customer is responsible for ensuring that Overfetch at all times has updated and accurate contact information for the appropriate person for Overfetch to notify regarding data security issues relating to the Overfetch Services, with such contact information to be updated in each Order Form and any subsequent changes to be provided by email to email@example.com (with “Contact Detail Change” in the subject).
4.2. Restrictions on Use.
You shall not (and shall not permit your Authorized Users to):
(a) violate the Acceptable Use Policy;
(b) copy, modify, disassemble, decompile, reverse engineer, or attempt to view or discover the source code of the Overfetch Services, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by this Agreement or by law notwithstanding this prohibition;
(c) sell, resell, license, sublicense, distribute, rent, lease, or otherwise provide access to the Overfetch Services to any third party except to the extent explicitly authorized in writing by Overfetch;
(d) use the Overfetch Services to develop or offer a service made available to any third party that could reasonably be seen to serve as a substitute for such third party’s possible subscription to any Overfetch product or service;
(e) transfer or assign any of your rights hereunder except as permitted under Section 15.5;
(f) during any free trial period granted by Overfetch, including during the use of any Beta Service, use the Overfetch Services for any purpose other than to evaluate the desirability of entering into a paid subscription to the Overfetch Services (in which case Overfetch reserves the right to charge you for such use at Overfetch’s standard rates without foregoing any other available remedies).
4.3. Customer Data and Customer Instructional Input.
4.3.1. Ownership; Usage Data.
As between you and Overfetch, you retain all ownership rights in Customer Content. Notwithstanding the foregoing, you acknowledge and agree that Overfetch may collect usage data and telemetry regarding your Authorized Users’ use of the Subscription Services and that such usage data may occasionally contain Customer Instructional Input (e.g., it may contain the queries entered by an Authorized User) but will not contain Customer Data or Customer Results (“Usage Data“). Overfetch will not share or publicly make available any Usage Data that identifies Customer, or any of its Authorized Users, other data subjects, or customers, nor use any Usage Data in a manner that derives its value from the unique aspects of your Customer Instructional Input.
4.3.2. PHI Data under HIPAA.
You agree that you may not include in Customer Data or Customer Instructional Input, or generate any Customer Results that include, any PHI unless you have entered into
(a) an Order Form that explicitly permits you to process PHI within the Platform Services, and then only with respect to space(s) identified in such Order Form (the “PHI Permitted Spaces“);
(b) a BAA with Overfetch which, upon mutual execution, shall be incorporated by reference into and subject to this Agreement. If you have not entered into a BAA with Overfetch or if you provide PHI to Overfetch other than through the PHI Permitted Spaces, Overfetch will have no liability under this Agreement relating to PHI, notwithstanding anything in this Agreement or in HIPAA or any similar Laws to the contrary.
4.3.3. Cardholder Data Under PCI-DSS.
You agree that you may not include in Customer Data or Customer Instructional Input, or generate any Customer Results that include, any cardholder data as defined under PCI-DSS (“Cardholder Data“) unless you have entered into an Order Form that:
(a) specifies Overfetch then-current certification status under PCI-DSS;
(b) explicitly permits you to process Cardholder Data within the Platform Services (including specifying the types and quantities of such data) and, and then only with respect to space(s) identified in such Order Form (the “PCI Permitted Spaces“). If you have not entered into such mutually executed Order Form with Overfetch, or if you provide Cardholder Data to Overfetch other than through the PCI Permitted Spaces, Overfetch will have no liability under this Agreement relating to Cardholder Data, notwithstanding anything in this Agreement or in PCI-DSS or any similar regulations to the contrary.
4.3.4. Additional Limitations.
You represent and warrant to Overfetch that your use of Overfetch Services shall comply with all applicable Laws, including without limitation any Applicable Data Protection Laws, and that, without limiting the foregoing, Customer Data and Customer Instructional Input shall not contain:
(a) any data for which you do not have all rights, power, and authority necessary for its collection, use, and processing as contemplated by this Agreement;
(b) any data with respect to which your use and provision to Overfetch pursuant to this Agreement would breach any agreement between you and any third party;
(c) any data with respect to which its usage as contemplated herein would violate any applicable Laws, including without limitation any Applicable Data Protection Laws.
5. Term and Termination.
5.1. Term of Agreement.
This Agreement shall become effective on the Effective Date and shall continue in full force and effect until terminated by either party pursuant to this Section 5. The Agreement may be terminated by either party without cause on thirty (30) days’ prior written notice if:
(a) there are no operative Order Forms outstanding;
(b) the other party is in material breach of the Agreement and the breaching party fails to cure the breach prior to the end of the notice period. If the Agreement terminates pursuant to the prior sentence due to Overfetch’s material breach, Overfetch will refund to you that portion of any prepayments related to Overfetch Services not yet provided. Either party can immediately terminate the Agreement if the other becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver, examiner, or administrator of its undertaking or the whole or a substantial part of its assets appointed, or an order is made, or an effective resolution is passed, for its administration, examinership, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within 30 days), or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to conduct business or threatens to do so.
5.2. Term of Order Forms.
The Term of an Order Form shall be as specified in the Order Form.
5.3. Monthly Pay-As-You-Go Service.
Notwithstanding anything in this Agreement to the contrary, Overfetch may suspend or terminate any Monthly Pay-As-You-Go Services account, and delete any Customer Content relating to such account that may be stored within the Subscription Services or other Overfetch’s Systems, upon thirty (30) day’s prior written notice (email sufficient) if Overfetch reasonably determines the account is inactive as set forth in the Acceptable Use Policy.
5.4. Suspension; Termination.
Overfetch may temporarily suspend or terminate the Overfetch Services at any time:
(a) immediately without notice if Overfetch reasonably suspects that you have violated Section 4 or your responsibilities set forth in Section 3.2.3 in a manner that may cause material harm or material risk of harm to Overfetch or to any other party;
(b) upon ten (10) business days’ notice if Overfetch reasonably suspects that you have committed any other violation of Section 4 or your responsibilities set forth in Section 3.2.3;
(c) if you or your Responsible Customer (as defined below) fail to pay undisputed Fees after receiving notice that you are more than thirty (30) days delinquent in payment.
5.5. Effects of Termination.
Upon termination for any reason, you shall purge all stored elements of the Overfetch Services from your Systems, Overfetch will, upon your written request, purge all your Confidential Information from its Systems, and each party, upon request by the other party, shall provide certification of such action. All provisions of the Agreement that by their nature should survive termination shall so survive, including without limitation each party’s confidentiality obligations under Section 7.
6. Payment Terms.
Unless Customer’s usage of the Overfetch Services is being paid for by a third party under contract with Overfetch (such third party, the “Responsible Customer“), Customer shall pay all Fees specified in the applicable Order Form. With respect to Direct Orders, except as otherwise specified therein:
(a) all Fees owed to Overfetch shall be paid in U.S. Dollars;
(b) invoiced payments shall be due within 30 days of the date of your receipt of each invoice;
(c) Fees for all Overfetch Services shall be invoiced in full upon execution of the applicable Order Form.
You shall be solely responsible for payment of any applicable sales, value-added or use taxes, or similar government fees or taxes.
A receiving party will not use the disclosing party’s Confidential Information except as permitted under this Agreement or to enforce its rights under this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and/or subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such employee and/or subcontractor is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in this Section 7. Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving party ordinarily uses with respect to its own Confidential Information of similar nature and in no event using less than a reasonable standard of care; provided, however, that a party may disclose such Confidential Information as required by applicable law, regulation, court order or action by the applicable regulatory authority, subject to the party required to make such disclosure giving reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request. The provisions of this Section 7 shall supersede any non-disclosure agreement by and between the parties (whether entered into before, on, or after the Effective Date) that would purport to address the confidentiality and security of Customer Data and such agreement shall have no further force or effect with respect to Customer Data.
8. Data Protection.
Overfetch maintains appropriate administrative, physical, and technical safeguards according to the ISMS Standard for protection of the security and confidentiality of Customer Data under Overfetch’s control. Those safeguards include, but are not limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data under Overfetch’s control. Without limiting the foregoing, Overfetch acknowledges that it may receive or have access to Personal Data provided by your Authorized Users during the term of this Agreement. Except with respect to a free trial, the terms of the DPA are hereby incorporated by reference and shall apply to the extent Customer Data includes Personal Data, as defined in the DPA. To the extent Personal Data from the European Economic Area (EEA), the United Kingdom, and Switzerland are processed by Overfetch, the EU-US and/or Swiss-US Privacy Shield, and/or the Standard Contractual Clauses shall apply, as further set forth in the DPA. Where the Standard Contractual Clauses are applicable according to the DPA, Customer and its applicable Affiliates are each the data exporter, and Customer’s acceptance of this Agreement, and Customer’s or an applicable Affiliate’s execution of an Order Form, shall be treated as its execution of the Standard Contractual Clauses and Appendices.
Overfetch warrants that, during the term of the Agreement, it will employ appropriate industry standards of practice designed to:
(a) ensure that its provision of the Overfetch Services under this Agreement will not infringe any third party Intellectual Property Rights or other proprietary rights;
(b) prevent the transmission of malware or malicious code via the Overfetch Services;
(c) meet its performance, confidentiality, and other obligations under this Agreement;
(d) prevent unauthorized access to or disclosure of Customer Content;
(e) ensure that the Platform Services operate during the applicable Order Form term(s) substantially in accordance with the Documentation.
THE WARRANTIES IN SECTION 9 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING OVERFETCH AND OVERFETCH’S SERVICES PROVIDED HEREUNDER. SUBJECT TO SECTION 12.1, OVERFETCH SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, AND OTHER TERMS, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN (BUT SUBJECT ALWAYS TO SECTION 12.1):
(a) BETA SERVICES AND ANY SERVICES PROVIDED UNDER ANY FREE TRIAL PERIOD ARE PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND BY OVERFETCH;
(b) WITHOUT LIMITATION, OVERFETCH DOES NOT MAKE ANY WARRANTY OF ACCURACY, COMPLETENESS, TIMELINESS, OR UNINTERRUPTABILITY, OF THE OVERFETCH SERVICES;
(c) OVERFETCH IS NOT RESPONSIBLE FOR RESULTS OBTAINED FROM THE USE OF THE OVERFETCH SERVICES OR FOR CONCLUSIONS DRAWN FROM SUCH USE;
(d) OVERFETCH’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER INSTRUCTIONAL INPUT PURSUANT TO SECTION 22.214.171.124 SHALL CONSTITUTE OVERFETCH’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER CONTENT IN CONNECTION WITH THE OVERFETCH SERVICES.
11.1. Indemnification by Overfetch.
Subject to Section 11.5, Overfetch will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party (a “Claim Against Customer“) alleging that the Overfetch Services as provided to Customer by Overfetch or Customer’s use of the Overfetch Services in accordance with the Documentation and this Agreement infringes or misappropriates such party’s Intellectual Property Rights (an “IP Claim“), and will indemnify Customer from and against any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Overfetch in writing of, a Claim Against Customer. Notwithstanding the foregoing, Overfetch will have no liability for any infringement or misappropriation claim of any kind if such claim arises from:
(a) the combination, operation, or use of the Overfetch Services with equipment, devices, software, or data (including without limitation your Confidential Information) not supplied by Overfetch, if a claim would not have occurred but for such combination, operation, or use;
(b) your or an Authorized User’s use of the Overfetch Services other than in accordance with the Documentation and this Agreement.
If Overfetch receives information about an infringement or misappropriation claim related to an Overfetch Service, then Overfetch may at its sole option and expense:
(a) replace or modify the applicable Overfetch Services to make them non-infringing and of equivalent functionality;
(b) procure for you the right to continue using the Overfetch Services under the terms of this Agreement;
(c) if Overfetch is unable to accomplish either (a) or (b) despite using its reasonable efforts, terminate your rights and Overfetch’s obligation under this Agreement with respect to such Overfetch Services and refund to you any Fees prepaid by you for Overfetch Services not yet provided.
11.3. Indemnification by Customer.
Subject to Section 11.5, Customer shall defend Overfetch and its Affiliates and its and each of their officers, employees, directors, and agents (each, a “Overfetch Indemnitee“) against any claim, demand, suit or proceeding made or brought against a Overfetch Indemnitee by a third party (a “Claim Against Overfetch“)
(a) alleging that any Customer Content or its use with the Overfetch Services infringes or misappropriates such party’s Intellectual Property Rights;
(b) arising from or related to Customer’s use of the Overfetch Services in violation of any Law or this Agreement, and shall indemnify each Overfetch Indemnitee from and against any damages, attorney fees, and costs finally awarded against an Overfetch Indemnitee as a result of, or for amounts paid by an Overfetch Indemnitee under a settlement approved by Customer in writing of, a Claim Against Overfetch.
11.4. Sole Remedy for Infringement of Intellectual Property Rights.
SUBJECT TO SECTION 11.5 BELOW, THE FOREGOING SECTIONS 11.1 and 11.2 STATE THE ENTIRE OBLIGATION OF OVERFETCH AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE OVERFETCH SERVICES.
11.5. Conditions of Indemnification.
As a condition to an indemnifying party’s (each, an “Indemnitor“) obligations under this Section 11, a party seeking indemnification (each, an “Indemnitee“) will:
(a) promptly notify the Indemnitor of the claim for which the Indemnitee is seeking indemnification (but late notice will only relieve Indemnitor of its obligation to indemnify to the extent that it has been prejudiced by the delay);
(b) grant the Indemnitor sole control of the defense (including a selection of counsel) and settlement of the claim;
(c) provide the Indemnitor, at the Indemnitor’s expense, with all assistance, information, and authority reasonably required for the defense and settlement of the claim;
(d) preserve and will not waive legal, professional, or any other privilege attaching to any of the records, documents, or other information in relation to such claim without prior notification of consent by the Indemnitor. The Indemnitor will not settle any claim in a manner that does not fully discharge the claim against an Indemnitee or that imposes any obligation on, or restricts any right of, an Indemnitee without the Indemnitee’s prior written consent, which may not be unreasonably withheld or delayed. An Indemnitee has the right to retain counsel, at the Indemnitee’s expense, to participate in the defense or settlement of any claim. The Indemnitor will not be liable for any settlement or compromise that an Indemnitee enters into without the Indemnitor’s prior written consent.
12. Limitation of Liability.
Nothing in this Agreement shall limit either party’s liability for:
(a) the Excluded Claims;
(b) any other liability that cannot be excluded or limited by applicable Laws.
Subject to Section 12.1, neither party nor its Affiliates shall be liable for any:
(a) loss of profits or revenue;
(b) loss from damage to business or goodwill;
(c) loss arising from inaccurate or unexpected results of algorithms submitted by the other party to the Overfetch Services;
(d) other indirect, incidental, special, punitive, or consequential loss or damages; even if a party has been advised of the possibility of such losses or damages arising.
Subject to section 12.1, in no event shall the aggregate liability of each party together with all of its Affiliates arising out of or related to this agreement exceed the total amount paid by the Customer and its Affiliates hereunder for the Overfetch services giving rise to the liability in the twelve (12) months preceding the first incident out of which the liability arose. The foregoing limitation shall apply whether an action is in contract or tort and regardless of the theory of liability, but will not limit Customer’s and its Affiliates’ payment obligations under the “Payment Terms” section above.
Notwithstanding the previous paragraph, but subject to Section 12.1, any liability relating to Overfetch Services provided free of charge, including any Beta Services or Overfetch Services provided during a free trial period, shall be limited to one hundred US dollars (USD $100).
The Overfetch Services, and/or derivatives thereof, may be subject to export Laws of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit your users to access or use any Overfetch Services in a U.S. embargoed country (as of the Effective Date, Cuba, Iran, North Korea, Sudan, Syria, or Crimea) or in violation of any U.S. export Law.
14. Equitable Relief.
Each party acknowledges and agrees that the other party may be irreparably harmed in the event that such party breaches Section 7 (Confidentiality) and that monetary damages alone cannot fully compensate the non-breaching party for such harm. Accordingly, each party hereto hereby agrees that the non-breaching party shall be entitled to injunctive relief to prevent or stop such breach and to obtain specific enforcement thereof. Any such equitable remedies obtained shall be in addition to, and not foreclose, any other remedies that may be available.
15.1. Governing Law and Venue.
The governing law and exclusive venue applicable to any lawsuit or other dispute arising in connection with this Agreement shall be determined by the location of Customer’s principal place of business (“Domicile“), as follows:
|Customer’s Domicile||Governing Law||Venue|
(courts with exclusive jurisdiction)
|California||California||San Francisco(state and U.S. federal courts)|
|North America except California; South America; Middle East; Africa||Delaware||Delaware(state and U.S. federal courts)|
|United Kingdom||England & Wales||London|
|Europe except United Kingdom(including all of Russia and Turkey)||Ireland||Dublin|
|Pacific & Asia(excluding Middle East)||Singapore||Singapore*|
* Any dispute subject to Singapore venue shall be referred to and finally resolved by arbitration in accordance with the rules of the Singapore International Arbitration Centre (“SIAC“) then in force, which rules are deemed to be incorporated by reference into this Agreement. The number of arbitrators shall be one, unless the SIAC registrar determines that, in view of all the circumstances of the case, a three-member tribunal is appropriate. The language to be used in the arbitration proceedings shall be English. The decision of the arbitrator shall be final and binding upon the parties. Nothing in this paragraph shall prevent either party, in cases in which interim, injunctive or declaratory relief is required, from commencing proceedings and pursuing claims before a court of competent jurisdiction.
The parties hereby irrevocably consent to the personal jurisdiction and venue of the courts (or the SIAC where applicable) in the venues shown above. In all cases, the application of law shall be without regard to, or application of, conflict of law rules or principles, and the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
15.2. U.S. Government Users.
If Customer is a U.S. government entity or this Agreement otherwise becomes subject to the Federal Acquisition Regulation (FAR), Customer acknowledges that the Platform Services constitute software and documentation provided as “Commercial Items” under 48 C.F.R. 2.101 and developed solely at private expense, and are being licensed and made accessible to U.S. government users as commercial computer software subject to the restricted rights described in 48 C.F.R. 12.212.
15.3. Entire Agreement, Construction, Amendment, and Execution.
This Agreement (including all Order Forms) is the complete and exclusive understanding and agreement between the parties regarding its subject matter. Nothing in the preceding sentence shall limit or exclude any liability for fraud or fraudulent misrepresentation. To the extent, any provision in an Order Form clearly conflicts with a provision of these Terms or a provision of an earlier Order Form, the provision in the new Order Form shall be binding and the conflicting provision in these Terms or in the earlier Order Form shall be deemed modified solely to the extent reasonably necessary to eliminate the conflict and solely with respect to the new Order Form (unless expressly intended to permanently amend the Agreement). If any provision of this Agreement is held to be unenforceable or invalid, that provision shall be enforced to the maximum extent possible, and the other provisions shall remain in full force and effect. The headings in this Agreement are solely for convenience, and shall not be taken into consideration in the interpretation of the Agreement. Each party acknowledges and agrees that it has adequate sophistication, including legal representation, to fully review and understand this Agreement; therefore, in the interpretation of the Agreement with respect to any drafting ambiguities that may be identified or alleged, no presumption shall be given in favor of the non-drafting party. This Agreement may not be modified or amended except by mutual written agreement of the parties. Without limiting the foregoing, no Customer purchase order shall be deemed to modify an Order Form or this Agreement unless expressly pre-authorized in writing by Overfetch.
No assignment, novation, or transfer of a party’s rights and obligations under this Agreement (“Assignment“) is permitted except with the prior written approval of the other party, which shall not be unreasonably withheld; provided, however, that either party may freely make an Assignment to a successor in interest upon a change of Control.
Overfetch will provide notices under the Agreement to Customer by sending an email to the Notification Email Address. Customer will provide notices under the Agreement to Overfetch by sending an email to firstname.lastname@example.org. Notice will be treated as received when the email is sent. Customer is responsible for keeping its Notification Email Address current throughout the Term.
15.6. Force Majeure.
Notwithstanding anything herein to the contrary, Customer understands and agrees that its use of the Overfetch Services may be interrupted by circumstances beyond Overfetch’s reasonable control, including without limitation acts of God, acts of government, changes in law or regulations, acts or omissions of third parties, flood, fire, earthquakes, civil unrest, wars, acts of terror, strikes or other actions taken by labor organizations, computer, telecommunications, the Internet, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Overfetch’s possession or reasonable control, and network intrusions or denial of service attacks, or any other cause, whether similar or dissimilar to any of the foregoing that is beyond Overfetch’s reasonable control (individually or collectively as applicable, “Force Majeure“). Overfetch shall not be responsible or otherwise liable for any Force Majeure or any consequences thereof.