ConnectedXM
Service Terms and Conditions
BY INDICATING ACCEPTANCE OF THESE SERVICE TERMS AND CONDITIONS (THIS “AGREEMENT”) OR ACCESSING OR USING ANY CONNECTEDXM SERVICES OR OFFERINGS, YOU (“SUBSCRIBER”) ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE ANY CONNECTEDXM SERVICES OR OFFERINGS. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.
IF YOU ARE USING ANY CONNECTEDXM SERVICES OR OFFERINGS AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
1. Definitions.
“Affiliate” of a party means any other entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such party. The term “control” means the direct or indirect power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise of more than 50% of the voting securities of such entity.
“Authorized Users” means Subscriber’s employees, consultants, contractors, and agents (a) who are authorized by Subscriber to access and use the Services under the rights granted to Subscriber pursuant to this Agreement and the applicable Service Order; (b) for whom access to the Services has been purchased hereunder; and (c) who is not a competitor of Connected.
“Connected Materials” means the Services, Specifications, and Connected Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any documentation, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Connected or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Connected Systems.
“Connected Systems” means the information technology infrastructure used by or on behalf of Connected in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Connected or through the use of third-party services.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Sensitive Personal Information” means an individual’s (a) financial account, credit report, or payment card information; (b) biometric, patient, medical or other protected health information; (c) personal information of children protected under applicable child protection laws; (d) social security, national identity, or similar personal identifiers; (e) “special categories of personal data” as defined under the General Data Protection Regulation, Regulation (EU) 2016/679 (GDPR); and (f) any other sensitive personal data as such term, or similar term, is defined under applicable privacy or data protection laws.
“Service Order” means an ordering document entered into between Subscriber or a Subscriber Affiliate and Connected specifying the services to be provided thereunder, including any exhibits, addenda and supplements thereto and any amendments and renewals thereof. By entering into a Service Order under this Agreement, Subscriber Affiliate agrees to be bound by the terms of this Agreement as if it were an original party to this Agreement.
“Services” means the software-as-a-service offering described in the Service Order, as Connected may modify the services from time to time in Connected’s discretion.
“Specifications” means the specifications for the Services set forth in the appliable Service Order.
“Subcontractor” has the meaning set forth in Section 2.4.
“Subscriber Data” means information, data, and other content, in any form or medium, that is uploaded by Subscriber or an Authorized User to the Services.
“Subscriber Systems” means the Subscriber’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Subscriber or through the use of third-party services.
“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Connected.
2. Services.
2.1 Access and Use. Subject to and conditioned on Subscriber’s and its Authorized Users’ compliance with the terms and conditions of this Agreement and the applicable Service Order, Connected hereby grants Subscriber a non-exclusive, non-transferable (except expressly permitted in this Agreement) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Subscriber’s internal business operations. Subscriber’s rights to use the Services are subject to any scope and usage limitations set forth in the applicable Service Order. Subscriber agrees to use the Services within, and is solely responsible for ensuring that it does not exceed any such limitations. If Subscriber exceeds any such limitations, Connected may invoice Subscriber and Subscriber agrees to pay for the excess usage at Connected’s then-current rates.
2.2 Use Restrictions. Except as may be expressly permitted by applicable law, Subscriber will not, and will not permit its Affiliates or any third parties to: (a) sell, rent, lease, or, except as expressly permitted in this Agreement or an applicable Service Order, license, sublicense, distribute, or otherwise permit any third party to access or use the Services; (b) except as expressly permitted in this Agreement or an applicable Service Order, use the Services to provide services to third parties as a service bureau or for time sharing or service provider purposes; (c) circumvent or disable any security or other technological features or measures of the Services, or attempt to probe, scan or test the vulnerability of a network or system, breach security or authentication measures, or gain unauthorized access to any service, system or network; (d) upload or provide for processing, or use the Services to store, display or transmit, any information or material that is illegal, defamatory, offensive, abusive, obscene, or tortious, or that violates privacy or intellectual property rights; (e) use the Services to harm, threaten, or harass another person or organization or in any way that violates applicable laws or regulations; (f) use the Services to create, send, store, run, or distribute any viruses, worms, Trojan horses, or other disabling code, malware component, or code or program harmful to a network or system; (g) copy, reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Services or any feature or function thereof; (h) access the Services for the purpose of monitoring availability, performance or functionality or for any benchmarking or other competitive purpose; or (i) alter nor remove any trademark, copyright notice, or other proprietary rights notice that may appear in any part of the Services. Subscriber is solely responsible for its conduct (including by and between all users) and all communications with others while using the Services.
2.3 Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Connected Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Connected Materials, and the Third-Party Materials are and will remain with Connected and the respective rights holders in the Third-Party Materials.
2.4 Subcontractors. Connected may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor“).
2.5 Subscriber Systems and Cooperation. Subscriber shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Specifications all Subscriber Systems on or through which the Services are accessed or used; (b) provide Connected with such access to Subscriber’s premises and Subscriber Systems as is necessary for Connected to perform the Services; and (c) provide all cooperation and assistance as Connected may reasonably request to enable Connected to exercise its rights and perform its obligations under and in connection with this Agreement.
2.6 Effect of Subscriber Failure or Delay. Connected is not responsible or liable for any delay or failure of performance caused in whole or in part by Subscriber’s delay in performing, or failure to perform, any of its obligations under this Agreement.
3. Data Privacy and Security.
3.1 Privacy and Security Safeguards. Connected shall maintain commercially reasonable administrative, physical, and technical safeguards designed for the protection of the Service against unauthorized access, use, disclosure, or destruction of Subscriber Data. Connected shall not disclose Subscriber Data for any purpose other than to provide the Service except to the extent compelled by applicable law or as expressly authorized in writing by Subscriber, as otherwise provided in Connected’s privacy policy, or as needed to address service or technical problems, at Subscriber’s express request in connection with customer support matters.
3.2 Subscriber Control and Responsibility. Subscriber has and will retain sole responsibility for: (a) all Subscriber Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Subscriber or any Authorized User in connection with the Services; (c) Subscriber Systems, whether operated directly by Subscriber or through the use of third-party services; and (d) all access to and use of the Services and Connected Materials directly or indirectly by or through the Subscriber Systems or otherwise by Subscriber or its Authorized Users, with or without Subscriber’s knowledge or consent.
3.3 Personal & Sensitive Personal Data. Subscriber has control over the type and content of Subscriber Data; provided, however, that it must be specified within the applicable Service Order if Subscriber intends to upload any Sensitive Personal Information to, or otherwise provide any Sensitive Personal Information for processing by, the Services. Subscriber acknowledges and agree that, notwithstanding anything to the contrary, Connected will have no liability with respect to Sensitive Personal Information. Subscriber represents and warrants that Subscriber will comply with all applicable laws, regulations, self-regulatory guidelines, and Subscriber’s privacy policy with respect to Subscriber’s use of the Services
4. Fees and Payment.
4.1 Fees and Payment. Subscriber shall pay Connected the fees set forth in the applicable Service Order (“Fees“) and any other amounts payable under this Agreement. Except as otherwise expressly provided in the applicable Service Order, upon both parties’ execution of a Service Order, the Service Order is non-cancellable and the fees are non-refundable and based on Services purchased, not actual usage. Unless otherwise specified in the applicable Service Order Fees are due annually in advance. All invoiced amounts are due in full within 30 days from the invoice date. Fees for each renewal term will be invoiced and payable at Connected’s rates in effect at the time of renewal. Any purchase order submitted by either party is for such party’s own internal purposes and any purchase order terms that add to or in any way conflict with the terms of this Agreement or the applicable Service Order are rejected and will have no effect. The charges in an invoice will be considered accepted unless Subscriber notifies Connected of a good faith dispute in writing within 30 days of the date of the invoice.
4.2 Taxes. All Fees and other amounts payable by Subscriber under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Subscriber is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Subscriber hereunder, other than any taxes imposed on Connected’s net income.
4.3 Late Payment. If Subscriber fails to make any payment when due then, in addition to all other remedies that may be available: (a) Connected may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (b) Subscriber shall reimburse Connected for all reasonable costs incurred by Connected in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (c) if such failure continues for 15 days following written notice thereof, Connected may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Subscriber or any other Person by reason of such suspension.
4.4 Payment Processing Acceptable Use. The payment platform integrations are exclusively designed for the listing, promotion, and sale of event tickets or registrations. Subscriber is permitted to list tickets for various events and manage these sales through the platform’s payment partner integrations. Subscriber must not use the platform for selling items or services unrelated to event registrations. Engaging in fraudulent activities, including the sale of counterfeit or stolen tickets, is strictly prohibited.
Subscriber must comply with all applicable laws and regulations regarding the sale of tickets. Failure to adhere to this AUP may result in actions such as suspension or termination of access to the platform and may also lead to legal consequences.
Connected reserves the right to monitor and enforce compliance with this AUP. Subscribers are encouraged to report any violations or suspicious activities related to ticket sales.
5. Term and Termination.
5.1 Term. The term of this Agreement commences as of the Effective Date and continues until terminated pursuant Section 5.3. Each Service Order commences on the effective date specified in the Service Order and, unless earlier terminated for cause pursuant to Section 5.2, continues for the initial term specified in such Service Order and any renewal terms. Unless otherwise specified in the applicable Service Order, each Service Order will automatically renew for additional successive one-year terms unless at least 30 days before the end of the then-current term either party provides written notice to the other party of non-renewal.
5.2 Termination. Either party may terminate this Agreement upon 30 days’ written notice if at the time of notice there are no Service Orders then in effect. Either party may terminate this Agreement or an applicable Service Order for cause immediately upon written notice if the other party does not cure its material breach of this Agreement or the applicable Service Order within 30 days of receiving written notice of the breach from the non-breaching party. Termination of this Agreement for cause will terminate all Service Orders then in effect. If Subscriber fails to timely pay any Subscription Fees or other fees owing under this Agreement or a Service Order, Connected may terminate this Agreement or the applicable Service Order pursuant to this Section 5.2.
5.3 Effect of Termination or Expiration. Upon any expiration or termination of this Agreement or an applicable Service Order, except as expressly otherwise provided in this Agreement: (a) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate; (b) Subscriber shall immediately cease all use of any Services or Connected Materials and promptly return to Connected all documents and tangible materials containing, reflecting, incorporating, or based on Connected Confidential Information; and (c) Subscriber will immediately pay to Connected any Fees, and other amounts that have accrued prior to the effective date of the termination.
5.4 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Sections 2, 2.3, 3.3, 4, 5.3, 5.4, 6, 7.2, 8.3, 9, 10, and 11.
6. Confidentiality.
6.1 Confidential Information. In connection with this Agreement each party (as the “Disclosing Party“) may disclose or make available Confidential Information to the other party (as the “Receiving Party“). “Confidential Information” means any non-public business information, in any form, that is designated as confidential or that a reasonable person should understand to be confidential due to the nature of the information or the circumstances of disclosure, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing. Without limiting the foregoing all Connected Materials, information regarding the Services, systems and networks, product plans are the Confidential Information of Connected and the financial terms and existence of this Agreement are the Confidential Information of both of the parties.
6.2 Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records]was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
6.3 Protection of Confidential Information. The Receiving Party agrees to hold in confidence and not disclose to any third party, except as expressly permitted under this Agreement, Confidential Information of the Disclosing Party, and to take reasonable steps, substantially equivalent to the steps it takes to protect its own confidential information of like nature, but no less than reasonable steps, to prevent the unauthorized use or disclosure of the Disclosing Party’s Confidential Information. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the Receiving Party’s and its Affiliates’ employees or agents who reasonably need to have access to such information to perform the Receiving Party’s obligations under this Agreement or any Service Order and are bound by obligations of confidentiality and nonuse at least as restrictive as the terms of this Agreement. In addition, Connected may disclose Subscriber Confidential Information to its Subcontractors in connection with performance of the Services. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent required by law so long as the Receiving Party: (a) gives the Disclosing Party written notice of the requirement prior to the disclosure (where permitted) and reasonable assistance, at the Disclosing Party’s expense, in limiting disclosure or obtaining an order protecting the Confidential Information from public disclosure; and (b) in the event Confidential Information is nevertheless required to be disclosed, discloses only such portion of Confidential Information as is advised by its counsel to be legally required, and takes reasonable steps to obtain confidential treatment of the Confidential Information so disclosed.
7. Intellectual Property Rights.
7.1 Connected Materials. All right, title, and interest in and to the Connected Materials, including all Intellectual Property Rights therein, are and will remain with Connected and, with respect to Third-Party Materials, the applicable third-party provider owns all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Subscriber has no right, license, or authorization with respect to any of the Connected Materials except as expressly set forth in Section 1 or the applicable third-party license, in each case subject to Section 3.1. All other rights in and to the Connected Materials are expressly reserved by Connected.
7.2 Subscriber Data. As between Subscriber and Connected, Subscriber is and will remain the sole and exclusive owner of all right, title, and interest in and to all Subscriber Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted herein. Subscriber is responsible for the content, accuracy, availability, appropriateness, and legality of Subscriber Data and any other information Subscriber may access using the Services and for its use of Subscriber Data with the Services. For the avoidance of doubt, Subscriber Data does not include data and information related to Subscriber’s use of the Services that is used by Connected in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services or any other information reflecting the access or use of the Services by or on behalf of Subscriber or any Authorized User.
7.3 Consent to Use Subscriber Data. Subscriber hereby irrevocably grants all such rights and permissions in or relating to Subscriber Data as are necessary or useful to Connected and its Subcontractors to enforce this Agreement and exercise Connected’s and its Subcontractors’ rights and perform Connected’s and its Subcontractors’ obligations hereunder.
8. Representations and Warranties.
8.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; (c) the execution of this Agreement or a Service Order by its representative has been duly authorized by all necessary corporate or organizational action of such party; and (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
8.2 Additional Connected Representations, Warranties, and Covenants. Connected represents, warrants, and covenants to Subscriber that: (a) the Services as provided to Subscriber by Connected will materially conform to the Specifications during the term of the applicable Service Order; and (b) Connected will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement. Subscriber must notify Connected of a claim under this warranty within 30 days of the date on which it first becomes aware of the condition giving rise to the claim. To the extent permitted by law, Subscriber’s sole and exclusive remedy arising out of or in connection with a breach of warranty is limited to correction of the non-conforming Services, or if correction or re-performance is not commercially reasonable, termination of the applicable Service Order and a refund of any prepaid unused fees for the applicable non-conforming Services.
8.3 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL SERVICES AND CONNECTED MATERIALS ARE PROVIDED “AS IS.” CONNECTED SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, CONNECTED MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR CONNECTED MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET SUBSCRIBER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN SUBSCRIBER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
9. Indemnification.
9.1 Connected Indemnification. Connected shall indemnify, defend, and hold harmless Subscriber from and against any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees incurred by Subscriber resulting from any claim by a third party alleging that Subscriber’s use of the Services in accordance with this Agreement infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property right of such third party.
9.2 Exclusions. Connected has no obligation under Section 9.1 for any infringement or misappropriation to the extent arising out of or based upon: (a) Subscriber Data or Third-Party Materials; (b) access to or use of the Connected Materials in combination with any hardware, system, software, network, or other materials or service not provided by Connected; (c) modification of the Service other than modifications made by Connected or its Subcontractors; (d) any aspect of the Services configured specifically for Subscriber to comply with its designs, requirements, or specifications; or (e) use of the Services outside the scope of the rights granted in, or otherwise in violation of, this Agreement, any Service Order, or applicable law.
9.3 Subscriber Indemnification. Subscriber shall indemnify, defend, and hold harmless Connected and its Subcontractors from and against any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees incurred by Connected resulting from any claim by a third party arising out of or based upon: (a) use of the Services in violation of the use restrictions provided under of this Agreement; or (b) an allegation that Subscriber Data or other materials, software, or information provided by Subscriber, or on its behalf, or collection, use, distribution, transfer or display thereof, infringes, misappropriates, or otherwise violates the rights of any person or third party or applicable law.
9.4 Indemnification Procedure. Each party shall promptly notify the other party in writing of any claim for which such party believes it is entitled to be indemnified pursuant to Section 1 or Section 9.3, as the case may be. The party seeking indemnification (the “Indemnitee“) shall cooperate with the other party (the “Indemnitor“) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel [of its choice/reasonably acceptable to the Indemnitee] to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any claim without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. The Indemnitee’s failure to perform any obligations under this Section 9.4 will not relieve the Indemnitor of its obligations under this Section 9, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
9.5 Infringement Remedies. In the event of any claim under Section 9.1, Connected may, at its sole option and expense: (a) procure for a license for Subscriber to continue using the Services; (b) replace or modify the allegedly infringing technology to avoid the infringement; or (c) if the foregoing are not commercially reasonable in Connected’s sole judgment, then terminate Subscriber’s access to and right to use the Services and refund any prepaid, unused Fees as of the date of termination. This Section 9 states Connected’s sole and exclusive liability, and Subscriber’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property right by the Services.
10. Limitations of Liability.
10.1 EXCLUSION OF DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR LOST PROFITS, LOSS OF BUSINESS, OR COSTS ASSOCIATED WITH PROCURING SUBSTITUTE OR REPLACEMENT SERVICES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES, ANY SERVICE ORDER, OR ANY OTHER AGREEMENT ENTERED INTO BETWEEN THE PARTIES OR THEIR AFFILIATES RELATED TO THIS AGREEMENT OR THE SERVICES (INCLUDING BUT NOT LIMITED TO STANDARD CONTRACTUAL CLAUSES), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER IN AN ACTION BASED ON CONTRACT, WARRANTY, STRICT LIABILITY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, EVEN IF THE PARTY IS APPRISED IN ADVANCE OF THE LIKELIHOOD OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE REASONABLY BEEN FORESEEN..
10.2 CAP ON MONETARY LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES, ANY SERVICE ORDER, OR ANY OTHER AGREEMENT ENTERED INTO BETWEEN THE PARTIES OR THEIR AFFILIATES RELATED TO THIS AGREEMENT OR THE SERVICES (INCLUDING BUT NOT LIMITED TO STANDARD CONTRACTUAL CLAUSES), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER IN AN ACTION BASED ON CONTRACT, WARRANTY, STRICT LIABILITY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, EXCEED, IN THE AGGREGATE, THE TOTAL FEES PAID BY SUBSCRIBER UNDER THE SERVICE ORDER FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. HOWEVER, THE FOREGOING CAP ON LIABILITY AND THE LIMITATIONS UNDER SECTION 10.1 WILL NOT APPLY TO CONNECTED’S OBLIGATION TO PAY ANY FEES UNDER THIS AGREEMENT OR A SERVICE ORDER, SUBSCRIBER’S LIABILITY FOR VIOLATION OF THE USE RESTRICTIONS PROVIDED UNDER THIS AGREEMENT, OR SUBSCRIBER’S INFRINGEMENT OR MISAPPROPRIATION OF CONNECTED’S INTELLECTUAL PROPERTY RIGHTS.
10.3 Exceptions. The exclusions and limitations in Section 1 and Section 10.2 do not apply to either party’s gross negligence or willful misconduct.
11. Miscellaneous.
11.1 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
11.2 Export Compliance. The Services may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any government denied-party list. Subscriber further represents that it is not located, and will not access or use, or permit any Authorized User to access or use, any Services in any U.S.-embargoed country or region, or access or use any Services in violation of any applicable U.S., local or foreign export laws or regulations.
11.3 Notices. Notices sent in accordance with this Section 11.3 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email with confirmation of transmission, if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third business day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
11.4 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
11.5 Assignment. Subscriber shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, without Connected’s prior written consent, except upon written notice to Connected in connection with a change of control or merger or by operation of law. No assignment, delegation, or transfer will relieve Subscriber of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 11.5 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
11.6 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement or a Service Order on account of, any delay or failure to perform any obligations under this Agreement or any Service Order, except for payment obligations, due to any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the cause of the delay or non-performance.
11.7 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement or any Service Order, including but not limited to Subscriber’s Affiliates or Authorized Users.
11.8 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. From time to time, Connected may modify this Agreement. Unless otherwise specified by Connected, changes become effective for Customer upon renewal of the then-current term or upon the effective date of a new Service Order after the updated version of this Agreement goes into effect.
11.9 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
11.10 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Utah without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Utah. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Utah in each case located in Salt Lake City, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein, or the applicable Service Order, shall be effective service of process for any suit, action, or other proceeding brought in any such court.
11.11 Arbitration. Any action arising out of or in connection with this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, will be determined by binding arbitration in Salt Lake County, Utah, U.S.A. by one arbitrator. The arbitration will be administered by the American Arbitration Association (AAA) pursuant to its Commercial Arbitration Rules and Mediation Procedures. Judgment upon the award rendered by an arbitrator may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its reasonable attorneys’ fees and costs incurred in connection with any arbitration or litigation instituted in connection with this Agreement. The existence and outcome of any action or dispute will be maintained as Confidential Information of both parties. This Section does not prohibit either party from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other injunctive relief to preserve the status quo or prevent irreparable harm. Furthermore, this Section does not prohibit any action by Connected to collect amounts not paid to Connected when due.
11.12 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
11.13 Entire Agreement. This Agreement, together with all Service Orders, constitute the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, and the Service Order, the terms of the applicable Service Order will control, but only with respect to the specific Service Order. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement or any Service Order. Neither party will be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement or any applicable Service Order that is proffered by the other party in any acceptance, confirmation, invoice, purchase order, receipt, correspondence, or otherwise, unless each party mutually and expressly agrees to such provision in writing.
(Updated 11/09/23)