Last modified January 2020
This Allbound Terms of Service Agreement, together with the Order Form(s) and Statement(s) of Work, (this “Agreement”) is made and entered into as of the effective date of the first Order Form or Statement of Work, each as defined below, (the “Effective Date”) by and between Allbound, Inc (“Allbound”) and the customer identified in such Order Form or Statement of Work (“Customer”). By executing an order form or statement of work that references this Agreement (as applicable, an “Order Form” or “Statement of Work”), or indicating acceptance of this Agreement via click through, electronic signature or other electronic means offered by Allbound, Customer agrees to be bound by the terms and conditions of this Agreement. Any individual accepting this Agreement on behalf of a Customer which is an organization or other entity represents and warrants that he or she has the authority to bind Customer to this Agreement. Customer may use the Allbound Services only in compliance with this Agreement and only if Customer has the power to form a contract with Allbound. IF CUSTOMER DOES NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS MASTER SERVICES AGREEMENT, CUSTOMER IS NOT PERMITTED TO USE THE SERVICES. In consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
- Allbound Services. This Agreement governs (a) Customer’s access to and use of the Allbound’s proprietary, web-based software solution(s) as described in the applicable Order Form (the “Allbound Services”); and (b) Allbound’s performance and Customer’s receipt of managed services or other professional services (the “Professional Services”) as described in the applicable Statement of Work. Subject to the terms and conditions of this Agreement, Allbound grants to Customer a limited, non-transferable, non-exclusive right, during the Subscription Term, to access and use the Allbound Services for Customer’s internal business purposes, including the right of Customer’s authorized employees, agents and other users (“End Users”) as described the applicable Order Form, to access and use the Allbound Services for such purposes. In the event that Customer elects to have Allbound perform any Professional Services, the parties will enter into a Statement of Work governing the provision of such Professional Services. The Statement of Work will incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of the Statement of Work and the terms of this Agreement, the terms and conditions of this Agreement will govern. The Statement of Work will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) Allbound’s then-current rates for the performance of the Professional Services
- 2.1 Acceptable Use. Except as expressly authorized by this Agreement, Customer may not (and will ensure that End Users do not): (a) modify, disclose, alter, translate or create derivative works of the Allbound Services (or any components thereof); (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Allbound Services (or any components thereof); (c) derive, or attempt to derive, the source code of, or disassemble, decompile, reverse compile, or reverse engineer the Allbound Services or any portion thereof (except to the extent and for the express purposes authorized by any and all applicable federal or state laws (collectively, “Laws”)); (d) use the Allbound Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (e) use the Allbound Services to store or transmit any viruses, software routines or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; (f) copy, frame or mirror any part or content of the Allbound Services; (g) access the Allbound Services in order to build a competitive product or service, or copy any features or functions of the Allbound Services; (h) interfere with or disrupt the integrity or performance of the Allbound Services; (i) attempt to gain unauthorized access to the Allbound Services or their related systems or networks; (j) disclose to any third party any performance information or analysis relating to the Allbound Services; (k) remove, alter or obscure any proprietary notices in or on the Allbound Services including copyright or trademark notices; or (l) cause or permit any End User or third party to do any of the foregoing. Customer may access the Allbound Services only through interfaces and protocols provided or authorized by Allbound.
- 2.2 APIs. Customer’s use of any application programming interfaces (“APIs”) that are included in the Allbound Services or otherwise made available to Customer by Allbound, in each case, is subject to any additional terms and conditions or limitations set forth the applicable Order Form. Such limitations may include a limitation or throttle on the number of calls that Customer may make to the API or similar usage restrictions. Allbound may utilize technical measures to prevent over usage and/or stop usage of the API by Customer after any usage limitations are exceeded.
- Allbound Support. Allbound will use commercially reasonable efforts provide the Allbound Services in material conformance with the terms and conditions of this Agreement, including providing the Allbound Services described in this Section 3. Allbound will provide Customer, at no additional charge, with all updates or modifications to the Allbound Services that Allbound typically provides its other customers free of charge. Such updates or modifications typically will not include (a) significant improvements or enhancements to the Allbound Services, (b) new versions of the Allbound Services, or (c) any new releases of Allbound products or services; but Allbound may offer to make these available to Customer for an additional charge.
- Ownership and Reservation of Rights.
- 4.1 Customer. As between the parties, Customer owns all right, title and interest in and to the Customer Materials, all Customer products and services and any and all Intellectual Property Rights (as defined below) embodied in the foregoing (collectively, the “Customer IP”). Customer consents to Allbound’s use of and access to the Customer Materials to provide the Allbound Services to Customer in accordance with the terms and conditions of this Agreement. For the purpose of this Agreement, “Customer Materials” means any and all data, text, multimedia, graphics, audio, video, and other information or content provided by Customer to Allbound for use with and display through the Allbound Services.
- 4.2 Allbound. As between the parties and subject to the grant of rights in Section 1, Allbound or its licensors owns all right, title and interest in and to the Allbound Services (and any and all modifications to or derivative works of the Allbound Services) and any and all Intellectual Property Rights embodied in the foregoing (collectively, the “Allbound IP”). To the extent Allbound creates or develops any deliverables arising from or related to the Professional Services, upon Customer’s payment for the applicable Professional Services, and to the extent Customer is not in breach of this Agreement, Allbound grants to Customer a limited, non-transferable, non-exclusive right, during the Subscription Term, to access and use such deliverables solely for Customer’s internal business purposes, subject to the use restrictions in Section 1. Customer acknowledges that the deliverables are Allbound’s Confidential Information (as defined below). Subject to the limited license above and as between the parties, Allbound owns and will continue to own all right, title and interest in and to all such deliverables and all discoveries, inventions, developments, improvements, works of authorship, information, data, analysis, know-how, ideas, technology, materials, and other work product arising out of or related to the Professional Services, together with all related Intellectual Property Rights therein. Without limiting the foregoing, Allbound may use, without limitation, the general knowledge, skills and experience of its personnel, and any ideas, concepts, know-how and techniques that are acquired or used in the course of providing the Professional Services.
- 4.3 Reservation of Rights. Each party reserves all rights not expressly granted in this Agreement, and no licenses are granted by a party to the other party under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement. For the purpose of this Agreement, “Intellectual Property Rights” means all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
5. Fees and Payment Terms.
- 5. 1. Fees. The fees for the Allbound Services and Professional Services are set forth in the applicable Order Form or Statement of Work, as applicable, (the “Fees”). Unless otherwise expressly specified in the applicable Order Form or Statement of Work, Customer will pay all Fees within 30 days of the date Allbound’s invoice to Customer. Following the initial term (as set forth in the Order Form or Statement of Work), Allbound may modify the Fees of the Allbound Services, at its sole discretion, by providing Customer with 90 days prior written notice. All payments due under this Agreement will be made: (a) by check or bank wire transfer, in immediately available funds to an account designated by Allbound or credit card, in accordance with Section 3; and (b) in U.S. Dollars.
- 5.2 Interest and Taxes. Customer will be responsible for, and will pay all sales and similar taxes levied upon the provision of the Allbound Services provided under this Agreement, excluding only taxes based solely on Allbound’s net income. Customer will indemnify and hold Allbound harmless from and against any and all such taxes, fees, and related amounts levied upon the provision of the Allbound Services and any costs associated with the collection or withholding thereof, including penalties and interest.
- 5.3 Payment Card Terms. Customer may pay Allbound the Fees via credit card as set forth on the applicable Order Form or Statement of Work. By providing Allbound with credit card information (including account number, expiration date, card verification code, and billing address), Customer represents and warrants that all such information is complete and accurate and authorizes Allbound to charge such credit card for all Fees that are due and payable hereunder. Allbound will initiate periodic charges to credit card for all Fees incurred during the Subscription Term. Customer’s authorization of such recurring charges will remain effective for the duration of the Subscription Term, unless Customer notifies Allbound in writing that Customer revokes such consent. Customer further authorizes Allbound to receive updated credit card account information from the issuer of the credit card.
6. User Data and Security.
- 6.1 Anonymous Usage Data. As between the parties, Customer will own all Customer Materials; provided, however, notwithstanding anything in this Agreement to the contrary, Allbound may monitor, collect, use and store anonymous and aggregate statistics regarding use of the Allbound Services solely for Allbound’s business purposes (including, but not limited to, enhancing the Allbound Services and creating new features).
- 6.2 Security. Allbound will use commercially reasonable efforts to meet the security requirements designed to prevent any unauthorized use, access, processing, destruction, loss or disclosure of any Customer Materials stored or processed by the Allbound Services. In the case of a confirmed unauthorized use, access, processing, destruction, loss or disclosure of any such Customer Materials by a third party (a “Security Incident”), Allbound will notify Customer after Allbound becomes aware of the Security Incident.
- 6.3 Restrictions on Certain Types of Data. Unless Customer receives prior express written authorization from Allbound, Customer shall not process via, or submit to, the Allbound Services any Customer Materials that include any: (a) "personal health information," as defined under the Health Insurance Portability and Accountability Act; (b) government issued identification numbers, including Social Security numbers, driver’s license numbers and other state or national issued identification numbers; (c) financial account information, including bank account numbers; (d) payment card data, including credit card or debit card numbers; (e) biometric information, such as fingerprints or voiceprints; or (f) "sensitive" personal data, as defined under the EU General Data Protection Regulation , about residents of Switzerland and any member country of the European Union, including racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or health-related data, sexual life, or sexual orientation.
7. Obligations of the Parties.
- 7.1 Passwords. Customer is responsible for protecting and safeguarding any passwords, API keys, user IDs or other credentials and login information (collectively, "Passwords") that have been provided to Customer or that are generated in connection with Customer’s use of the Allbound Services. Customer will not disclose or make available Passwords other than to End Users and will use best efforts to prevent unauthorized access to, or use of, the Passwords or the Allbound Services. Customer is fully responsible for all activities that occur in connection with the Passwords. Customer will immediately notify Allbound in writing of any unauthorized use of the Allbound Services that comes to Customer’s attention.
- 7.2 Allbound Personnel. Allbound is responsible for the performance of its employees and contractors and their compliance with Allbound’s obligations under this Agreement. Allbound may use non-employee contractors or agents for the purpose of providing Allbound Services hereunder.
- 7.3 Third Party Dependencies. Customer acknowledges that the Allbound Services (including the Customer Materials) are hosted and processed on a network owned and maintained by a third party services provider. The Allbound Services may contain or otherwise use certain third party software.
- 7.4 Additional Terms. In the event that the parties mutually agree to include additional obligations or rights, such additional obligations and rights will be set forth in the Order Form or Statement of Work.
- 8.1 Definition. “Confidential Information” means all non-public information disclosed (whether in oral, written, or other tangible or intangible form) by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) related to technical, commercial, financial, employee, or planning information disclosed in connection with this Agreement and is (A) identified in writing as confidential at the time of disclosure, whether in printed, textual, graphic, or electronic form; or (B) disclosed in non-tangible form, identified as confidential at the time of disclosure, summarized in a writing labeled as “confidential”, and delivered to the Receiving Party within 15 days after disclosure. Confidential Information includes, but is not limited to, the components of the business plans, financial plans, know-how, customer information, strategies and other similar information. Confidential Information will not include information that: (a) is in or enters the public domain without breach of this Agreement and through no fault of the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) the Receiving Party can demonstrate was developed by the Receiving Party independently and without use of or reference to the Disclosing Party’s Confidential Information; or (d) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation.
- 8.2 Use and Disclosure. The Receiving Party will maintain in confidence, during the Subscription Term and thereafter, the Confidential Information of the Disclosing Party and will not use such Confidential Information except as expressly permitted in this Agreement. The Receiving Party will use the same degree of care in protecting the Disclosing Party’s Confidential Information as the Receiving Party uses to protect its own Confidential Information from unauthorized use or disclosure, but in no event less than reasonable care. In addition, the Receiving Party will only disclose Confidential Information disclosed by the Disclosing Party to its directors, officers, employees and contractors who have a need to know such Confidential Information in connection with this Agreement and only if such directors, officers, employees and contractors have executed a non-disclosure agreement with the Receiving Party with terms no less restrictive than the non-disclosure obligations contained in this Section 8.
- 8.3 Feedback. Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments or other feedback provided by Customer to Allbound with respect to the Allbound Services, Professional Services or Allbound (collectively, “Feedback”) will constitute Confidential Information of Allbound. Allbound will be free to use, disclose, reproduce, license and otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind, on account of Intellectual Property Rights or otherwise.
- 8.4 Injunctive Relief. The Receiving Party acknowledges that any unauthorized disclosure of Confidential Information of the Disclosing Party will result in irreparable injury to the Disclosing Party, which injury could not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to seek and obtain injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to: (a) show any actual damage or irreparable harm; (b) prove the inadequacy of its legal remedies; or (c) post any bond or other security.
- 8.5 Exceptions. Notwithstanding any terms to the contrary in this Agreement, each party may disclose the terms and conditions of this Agreement: (1) in confidence, to legal counsel of such party; (2) to such party’s accountants, banks, financing sources and their advisors; (3) in connection with the enforcement of this Agreement or rights under this Agreement; or (4) in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction.
9. Representations, Warranties and Remedies.
- 9.1 General Representations and Warranties. Each party represents and warrants that: (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation; and (b) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement.
- 9.2 Limited Allbound Services Warranty. Allbound represents and warrants that: (a) it will perform the Professional Services in a professional and workmanlike manner and in accordance with the Statement of Work; and (b) the Allbound Services will conform, in all material respects, to the applicable specifications set forth in the applicable Order Form or other documentation provided by Allbound to Customer. The representation and warranty set forth in Section 2(b) will not apply if a non-conformity of the Allbound Services results from any accident, abuse, misuse, or failure to maintain the browser or other requirements that are recommended to access and use the Allbound Services, as may be communicated by Allbound to Customer from time to time, by any party other than Allbound or any unauthorized use or combination of the Allbound Services (or any component thereof) with any software, hardware or other item not approved, in writing, by Allbound.
- 9.3 Disclaimer. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTIONS 1 AND 9.2, EACH PARTY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THIS AGREEMENT, THE ALLBOUND SERVICES AND ANY THIRD PARTY SOFTWARE OR SERVICES, OR ANY THIRD PARTY OFFERINGS, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (A) WARRANTIES OF MERCHANTABILITY; (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT SUCH PARTY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); OR (C) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. If Allbound breaches the warranty provided in Section 9.2, as Allbound’s sole liability and Customer’s exclusive remedy, Allbound will correct or re-perform any defective Allbound Service or, if not practicable, CUSTOMER MAY terminate the affected Allbound Services. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY AND EXCLUSIVE REMEDY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
10. Indemnification Obligations.
- 10.1 Infringement Indemnity. Allbound, at its sole expense, will defend Customer and its directors, officers, and employees (“Customer Indemnitees”) from and against any and all third party claims, suits, actions or proceedings (each a “Claim”), and indemnify Customer Indemnitees from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) that are awarded by a court of competent jurisdiction or included in a settlement approved, in advance and in writing, by Allbound, and that result from or arise in connection with the exercise of any of the rights granted under this Agreement with respect to any of the Allbound IP (excluding any Open Source Software) infringing any Intellectual Property Rights of any third party. In the event of a Claim pursuant to this Section 1, Allbound may, at Allbound’s option and at Allbound’s expense: (a) obtain for Customer the right to continue to exercise the rights granted to Customer under this Agreement; (b) substitute the allegedly infringing component for an equivalent non-infringing component; or (c) modify the Allbound Services to make them non-infringing. If (a), (b), or (c) is not obtainable on commercially reasonable terms, Allbound may terminate this Agreement, effective immediately, by written notice to Customer. Allbound’s indemnification obligations do not extend to Claims arising from or relating to: (i) any negligent or willful misconduct of any Customer Indemnitees, End Users or any third party; (ii) any combination of the Allbound Services (or any portion thereof) by any Customer Indemnitees, End Users or any third party in combination with any equipment, software, data or any other materials where the infringement would not have occurred but for such combination; (iii) any modification to the Allbound Services by any Customer Indemnitees, End Users or any third party where the infringement would not have occurred but for such modification; (iv) the use of the Allbound Services by any Customer Indemnitees, End Users or any third party in a manner contrary to the terms of this Agreement where the infringement would not have occurred but for such use; or (v) the continued use of the Allbound Services after Allbound has provided substantially equivalent non-infringing software or service. The indemnity provided in this Section 10.1 and the foregoing remedies constitute Allbound’s sole liability and Customer’s exclusive remedy in the event of a Claim pursuant to this Section 10.1.
- 10.2 Customer Indemnity. Customer, at its sole expense, will defend Allbound and its directors, officers, employees and agents (“Allbound Indemnitees”) from and against any Claims and indemnify Allbound Indemnitees from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) arising out of, based on or related to (a) Customer’s business operations, any Customer IP or any Customer Materials; or (b) any breach or alleged breach of Customer’s obligations under this Agreement.
- 10.3 Procedures. The indemnifying party’s indemnification obligations under this Section 10 are conditioned upon the indemnified party: (a) giving prompt written notice of the Claim to the indemnifying party once the indemnified party becomes aware of the Claim (provided that failure to provide prompt written notice to the indemnifying party shall not alleviate an indemnifying party’s obligations under Section 10 to the extent any associated delay does not materially prejudice or impair the defense of the related Claims); (b) granting the indemnifying party the option to take sole control of the defense (including granting the indemnifying party the right to select and use counsel of its own choosing) and settlement of the Claim (except that the indemnified party’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of the indemnified party); and (c) providing reasonable cooperation to the indemnifying party and, at the indemnifying party’s request and expense, assistance in the defense or settlement of the Claim.
11. Limitation of Liability. EXCEPT FOR ALLBOUND’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL ALLBOUND’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER TO ALLBOUND DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT UNDER WHICH THE DAMAGES AROSE. IN NO EVENT WILL ALLBOUND BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
FURTHER, NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THIS AGREEMENT, ALLBOUND WILL NOT BE LIABLE FOR ANY BREACH OF ANY SERVERS OR SYSTEMS, ANY HACKING, OR ANY UNAUTHORIZED DISCLOSURE OR USE OF, OR ACCESS TO, ANY CUSTOMER IP (IN ANY MEDIUM), UNLESS SUCH OCCURS AS A DIRECT RESULT OF ALLBOUND’S BREACH OF ANY OF ITS SECURITY OBLIGATIONS AS SET FORTH IN SECTION 6.2 (SECURITY).
12. Term, Termination and Effect of Termination.
- 12.1 Term and Termination. The term of the Agreement will commence on the Effective Date and will continue for so long as there is an Order Form or Statement of Work between the parties in effect (the “Subscription Term”). The effective term of each Order Form and Statement of Work will be set forth therein. Notwithstanding the foregoing, in addition to Allbound’s right to terminate this Agreement pursuant to Section 1, either party may terminate this Agreement, for cause, if the other party: (a) breaches this Agreement and does not remedy such failure within 30 days after its receipt of written notice of such breach; or (b) terminates its business activities or becomes insolvent, admits in writing to its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority.
- 12.2 Suspension, Limitation or Termination. Allbound may suspend, terminate or limit access to the Allbound Services at any time if (a) Allbound determines that the Allbound Services are being used by Customer in violation of applicable Law; (b) Allbound determines that the Allbound Services are being used by Customer in an unauthorized or fraudulent manner (including any violation of Section 2 of this Agreement), or that Customer has submitted fraudulent or inaccurate information to Allbound; (c) Allbound determines that Customer’s use of the Allbound Services adversely affects Allbound's equipment or service to others (including in the event that Customer exceeds any usage restrictions for the Allbound Services or makes excessive API calls); (d) Allbound is prohibited by an order of a court or other governmental agency from providing the Allbound Services; (e) Customer fails to pay any Fees owed to Allbound hereunder within ten (10) days of the date on which payment is due under Section 5; or (f) a security incident or other disaster occurs that impacts the Allbound Services or the security of the Customer Materials. Allbound will have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer’s use of the Allbound Services in accordance with this Section 2. During the Subscription Term, Customer may request that Allbound suspend or deactivate certain modules of the Allbound Services; however, Customer will remain responsible for all Fees due for the Allbound Services as if those modules were still in effect.
- 12.3 Effect of Termination. Upon any expiration or termination of this Agreement: (a) all rights and licenses granted to Customer under this Agreement will immediately terminate; (b) Customer will immediately pay to Allbound all amounts due and payable up to the effective date of termination of this Agreement; and (c) each party will promptly return to the other party all Confidential Information of such other party then in its possession or destroy all copies of Confidential Information of such other party, at such other party’s sole discretion and direction. Customer will immediately confirm, in writing, that it has complied with Section 3(c) at Allbound’s request. Allbound will delete or otherwise destroy any or all Customer Confidential Information or Customer Materials in its possession or control after thirty (30) days following the expiration or termination of the Agreement; accordingly, Customer must deliver notice to Allbound of its request for Allbound to return or destroy such Confidential Information in accordance with Section 12.3(c) within such time period, and such request must be made in writing in an email to Compliance@Allbound.com. Notwithstanding any terms to the contrary in this Agreement, the following Sections 2, 4, 5, 6.1, 8, 9.3, 10, 11, 12.3 and 13 will survive any termination or expiration of this Agreement.
13. General Provisions.
- 13.1 Entire Agreement. This Agreement, including the Order Form(s) and Statement(s) of Work, sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions and understandings, written or oral, with respect to such subject matter and all past dealing or industry custom. In the event of any inconsistency between the provisions of this Allbound Terms of Service Agreement document and an Order Form or Statement of Work, the terms of this Allbound Terms of Service Agreement document will control, provided, however, to the extent the inconsistent terms are not in conflict with the terms of this document but are in addition to those set forth herein (as permitted by Section 5), the terms of the Order Form or Statement of Work will apply. The parties may amend the terms of this Agreement in accordance with Section 13.6.
- 13.2 Independent Contractors. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- 13.3 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Arizona applicable to agreements made and to be entirely performed within the State of Arizona, without resort to its conflict of law provisions. The state or federal court in Maricopa County, Arizona will be the jurisdiction in which any suits must be filed if they relate to this Agreement. Prior to the filing or initiation of any action or proceeding relating to this Agreement (except an action or proceeding required to protect or enforce a party’s Intellectual Property Rights), the parties must participate in good faith mediation in Maricopa County, Arizona. If a party initiates any proceeding regarding this Agreement, the prevailing party to such proceeding is entitled to reasonable attorneys’ fees and costs for claims arising out of this Agreement.
- 13.4 Publicity. Customer consents to Allbound’s use of Customer’s name and logo on the Allbound website and publicly available printed materials, identifying Customer as a customer of Allbound and describing Customer’s use of the Allbound Services notwithstanding any terms to the contrary in this Agreement. Customer agrees that Allbound may issue a press release identifying Customer as customer of Allbound.
- 13.5 Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by a party, by operation of law or otherwise, without the prior written consent of the other party, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Notwithstanding the foregoing, each party may assign this Agreement to any successor to substantially all of its business or assets, whether by merger, sale of assets, sale of stock, reorganization or otherwise, with written notice to the other party. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
- 13.6 Amendments and Waivers. No modification, deletion or addition (subject to Section 5), or waiver of any rights under this Agreement will be binding on a party unless made in a non-preprinted agreement clearly understood by the parties to be a modification or waiver and signed by a duly authorized representative of each party. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. Unless expressly provided herein, all rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
- 13.7 Notices. Except as specifically provided in Section 12.3(c), any notice (whether this Agreement expressly states “written notice” or “notice”) or communication required or permitted to be given hereunder must be in writing, signed or authorized by the party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as identified in the Order Form or Statement of Work or at such other address as may hereafter be furnished in writing by either party to the other party. Any notice, report, approval or consent required or permitted pursuant to this Agreement must be in writing and will be deemed to have been effectively received: (a) immediately upon delivery or successful facsimile or confirmed email transmission to the parties to be notified; (b) one (1) day after deposit with a commercial overnight courier with tracking capabilities; or (c) five (5) days after deposit with the United States Postal Service, by registered or certified mail, postage prepaid to the respective addresses of the parties set forth on the Order Form or Statement of Work.
- 13.8 Severability. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
- 13.9 Force Majeure. Except for payments due under this Agreement, neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including but not limited to acts of God (fire, storm, floods, earthquakes, etc.), civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of service by any service providers being used by Allbound to link its servers to the Internet, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party (a “Force Majeure Event”).