Customer Terms of Use
The Parties agree as follows:
1 Definitions.
1.1 “Authorized User” means Customer’s employees, consultants, contractors, agents, clients, experts or other business users: (i) who are authorized by Customer to access and use the Platform under this Agreement; and (ii) for whom access to the Platform has been purchased or otherwise provided hereunder.
1.2 “Business Contact Data” means Personal Information that relates to Powersift’s relationship with Customer, including, by way of example and without limitation, the names and contact information of Authorized Users and any other data Powersift collects for the purpose of managing its relationship with Customer, identity verification, or as otherwise required by applicable laws, rules, or regulations.
1.3 “Customer Data” means information, data, images, text, Customer-owned intellectual property and other content, in any form or medium, that is submitted, posted, imported, or otherwise transmitted by or uploaded by or on behalf of Customer or an Authorized User through the Platform; provided that, for purposes of clarity, Customer Data as defined herein does not include Business Contact Data or Usage Data.
1.4 “Documentation” means Powersift’s end user documentation relating to the Platform and Platform pricing, as made available on the Powersift website from time to time.
1.5 “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby.
1.6 “Order” means: (i) a purchase order, order form, or other ordering document entered into by the Parties that incorporates this Agreement by reference; or (ii) if Customer registered for the Platform through Powersift’s online ordering process, the results of such online ordering process.
1.7 “Personal Information” means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located, including without limitation all data considered “personal data”, “personally identifiable information”, or something similar under applicable laws, rules, or regulations relating to data privacy.
1.8 “Platform” means Powersift’s proprietary hosted software platform for analyzing, visualizing, and organizing (i) documentation uploaded by Authorized Users, and (ii) Customer Data, as made available to Authorized Users from time to time, including updates, enhancements, and upgrades, and as described in an Order.
1.9 “Professional Services” means training, migration, implementation, integration, or other professional services that are memorialized in the either writing on the Order Form, and/or in greater detail in a Statement of Work and provided to Customer in connection with its use of the Platform hereunder.
1.10 “Powersift IP” means the Platform, the Documentation, Powersift’s patents or any counterparts thereof, trademarks, service marks, copyrights, mask works (and registrations and applications for any of the foregoing, know-how, trade secrets, inventions, discoveries, ideas, technology, data, information, processes, drawings, designs, licenses, computer programs and software, (including all text, object code, source code, scripts, designs, diagrams, documentation, or other software materials) and technical information including but not limited to information embodied in material specifications, processing instructions, equipment specifications, product specifications, confidential data, electronic files, research notebooks, invention disclosures, research and development reports and the like related thereto and all amendments, modifications, and improvements to any of the foregoing, whether owned, licensed, or otherwise controlled, and any and all intellectual property provided to, or accessed by, Customer or any Authorized User in connection with an Order, a Statement of Work, the Terms of Use and/or the Agreement. For the avoidance of doubt, Powersift IP includes Business Contact Data and any information, data, or other content derived from Powersift’s provision of the Platform but does not include Customer Data.
1.11 “Reports” means the Platform generated reporting based on submitted Customer Data in the form of written reports, graphs, charts, or any other summarized analysis of Customer Data in human readable format.
1.12 “Statement of Work” means a written statement of work for Professional Services executed by both Parties that incorporates this Agreement by reference.
1.13 “Subscription Period” means the time period identified on the Order during which Customer’s Authorized Users may access and use the Platform. Subscription Period shall include any renewals and renewal periods.
1.14 “Third-Party Products” means any third-party products provided with, integrated with, or incorporated into the Platform, including such products and services used by Customer to import or enable access to Customer Data, and tools and services used by Powersift to analyze that data.
1.15 “Usage Data” means service usage data collected and processed by Powersift in connection with Customer’s use of the Platform, including without limitation data used to identify the source and destination of a communication, activity logs, and data used to optimize and maintain performance of the Platform, and to investigate and prevent system abuse (in each case, without containing any Customer identifying information).
1.16 “Usage Limitations” means the usage limitations set forth in this Agreement and the Order, including without limitation any limitations on the number of Authorized Users (if any), and the applicable product, pricing, and support tiers agreed-upon by the Parties.
2 Access and Use.
2.1 Provision of Access. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, including without limitation the Usage Limitations, Customer may, solely through its Authorized Users, access and use the Platform during the Subscription Period on a non-exclusive, non-transferable, and non-sublicensable basis. Such access and use are limited to Customer’s internal business purposes and the features and functionalities specified in the Order. Each Authorized User must have its own unique account on the Platform and Authorized Users may not share their account credentials with one another or any third party. Customer will be responsible for all of the acts and omissions of its Authorized Users in connection with this Agreement and for all use of Authorized Users’ accounts.
2.2 Documentation License. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, Powersift hereby grants to Customer a non-exclusive, non-transferable, and non-sublicensable license to use the Documentation during the Subscription Period solely for Customer’s internal business purposes in connection with its use of the Platform.
2.3 Use Restrictions. Customer shall not use the Platform for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of any Powersift IP, whether in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform or Documentation to any third party; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform, in whole or in part; (iv) remove any proprietary notices from any Powersift IP; (v) use any Powersift IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) access or use any Powersift IP for purposes of competitive analysis of Powersift or the Platform, the development, provision, or use of a competing software service or product, or any other purpose that is to Powersift’s detriment or commercial disadvantage; (vii) bypass or breach any security device or protection used by the Platform or access or use the Platform other than by an Authorized User through the use of valid access credentials; or (viii) input, upload, transmit, or otherwise provide to or through the Platform any information or materials, including Customer Data , that are unlawful or injurious or that infringe or otherwise violate any third party’s intellectual property or other rights, or that contain, transmit, or activate any Harmful Code.
2.4 Reservation of Rights. Powersift reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Powersift IP.
2.5 Suspension. Notwithstanding anything to the contrary in this Agreement, Powersift may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Platform if: (i) Powersift reasonably determines that (a) there is a threat or attack on any of the Powersift IP; (b) Customer’s or any Authorized User’s use of the Powersift IP disrupts or poses a security risk to the Powersift IP or to any other Customer or vendor of Powersift; (c) Customer, or any Authorized User, is using the Powersift IP for fraudulent or illegal activities; (d) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (e) Powersift’s provision of the Platform to Customer or any Authorized User is prohibited by applicable law; or (f) any Customer Data submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Platform may infringe or otherwise violate any third party’s intellectual property or other rights; (ii) any vendor of Powersift has suspended or terminated Powersift’s access to or use of any Third-Party Products required to enable Customer to access the Platform; (iii) in accordance with Section 12.2.1 (any such suspension described in subclauses (i), (ii), (iii), a “Service Suspension”). Powersift shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Platform following any Service Suspension. Powersift shall use commercially reasonable efforts to resume providing access to the Platform as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Powersift will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
2.6 Business Contact Data and Usage Data. Notwithstanding anything to the contrary in this Agreement, Powersift may process Business Contact Data and Usage Data: (i) to manage the relationship with Customer; (ii) to carry out Powersift’s core business operations, such as accounting, audits, tax preparation and for filing and compliance purposes; (iii) to monitor, investigate, prevent and detect fraud, security incidents and other misuse of the Platform, and to prevent harm to Powersift, Customer, and Powersift’s other customers; (iv) for identity verification purposes; and (v) to comply with applicable laws, rules, and regulations relating to the processing and retention of Personal Information to which Powersift is subject. Powersift may also process Usage Data to monitor, maintain, and optimize the Platform. As between Powersift and Customer, all right, title, and interest in and to such Usage Data is owned solely and exclusively by Powersift.
3 Customer Responsibilities.
3.1 General. Customer is responsible and liable for all uses of the Platform and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Platform and shall cause Authorized Users to comply with such provisions.
3.2 Limited Customer Data License. Customer may not upload to the Platform any Customer Data it does not have sufficient rights to upload. Customer hereby grants to Powersift a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use, perform, and display the Customer Data and perform all acts with respect to the Customer Data solely as may be necessary for Powersift to provide the Platform to both Authorized Users and end users, including a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, use and display Customer Data incorporated within the Business Contact Data for the same purpose.
3.3 Third-Party Products. Powersift may from time to time make Third-Party Products available to Customer, or Powersift may allow for certain Third-Party Products to be integrated with the Platform to allow for the transmission or analysis of Customer Data from such Third-Party Products into the Platform. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. Powersift is not responsible for the operation of any Third-Party Products and makes no representations or warranties of any kind with respect to Third-Party Products or their respective providers. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. By authorizing Powersift to transmit Customer Data from Third-Party Products into the Platform, Customer represents and warrants to Powersift that it has all rights, power, and authority to provide such .
3.4 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (i) all Customer Data, including its content and use; (ii) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Platform; (iii) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party platforms or service providers (“Customer Systems“); (iv) the security and use of Customer’s and its Authorized Users’ access credentials; and (v) all access to and use of the Platform directly or indirectly by or through the Customer Systems or its or its Authorized Users’ access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
4 Support. During the Subscription Period, Powersift will use commercially reasonable efforts to provide Customer with basic Customer support via Powersift’s standard support channels during Powersift’s normal business hours. Powersift shall use commercially reasonable efforts to provide maintenance modifications or fixes with respect to any nonconformity or defect in the Platform. Powersift, however, shall not be obligated to correct, cure or otherwise remedy any error or defect in the Platform resulting from any: (i) modification of the Platform by Customer or its Authorized Users; (ii) misuse or damage of the Platform; or (iii) failure of Customer to notify Powersift of the existence and nature of such nonconformity or defect promptly upon its discovery.
5 Platform Updates. Updates to the Platform may consist of new releases of a version of the Platform that provide functional enhancements or error corrections, which are indicated by a change in the numeric identifier for the Platform and which are made generally available by Powersift to its customers for no additional Fees so long as Customer is current with its Subscription. The terms of this Agreement shall apply to all upgrades and any changes to the Platform, and Powersift reserves the right to make any updates to the Platform at any time.
6 Fees and Taxes.
6.1 Fees. The Platform may be provided for a fee or other charge, depending on the selected tier, or other functionality and inclusions specified in an Order. Customer shall pay Powersift the fees (“Fees”) for the Platform (as applicable) identified in the Order without offset or deduction at the pricing identified in the Order or other referenced Documentation. Fees paid by Customer are non-refundable. Customer shall make all payments hereunder in US dollars by ACH or credit or debit card payment. If Customer pays online via credit or debit card, Customer agrees to be bound by the Stripe, Inc. Services Agreement available at https://stripe.com/us/legal.
6.2 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer 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 Customer hereunder, other than any taxes imposed on Powersift’s income.
7 Confidential Information.
7.1 Definition. From time to time during the Subscription Period, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media that: (i) is marked, designated or otherwise identified as “confidential” or something similar at the time of disclosure or within a reasonable period of time thereafter; or (ii) would be considered confidential by a reasonable person given the nature of the information or the circumstances of its disclosure (collectively, “Confidential Information”). Except for Personal Information, Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party without use of, reference to, or reliance upon the disclosing Party’s Confidential Information.
7.2 Duty. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, contractors, and agents who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder (“Representatives”). The receiving Party will be responsible for all the acts and omissions of its Representatives as they relate to Confidential Information hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. Further, notwithstanding the foregoing, each Party may disclose the terms and existence of this Agreement to its actual or potential investors, debtholders, acquirers, or merger partners under customary confidentiality terms.
7.3 Return of Materials; Effects of Termination/Expiration. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-use and non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three (3) years from the date of termination or expiration of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
8 Data Security and Processing of Personal Information.
8.1 Security Measures. Powersift will implement and maintain commercially reasonable administrative, physical, and technical safeguards designed to protect Customer Data (including Personal Information) from unauthorized access, use, alteration, or disclosure. Powersift will take reasonable action to notify Customer of any unauthorized access of Customer Data and will reasonably cooperate with Customer with any necessary remediation measures.
8.2 Processing of Personal Information. Powersift’s rights and obligations with respect to Personal Information that it collects directly from individuals are set forth in the Powersift Privacy Policy. Personal Information processed by Powersift on behalf of Customer will be governed by the terms of this Agreement and, as applicable Powersift’s Data Processing Agreement.
9 Intellectual Property Ownership; Feedback.
9.1 Powersift IP. Customer acknowledges that, as between Customer and Powersift, Powersift owns all right, title, and interest, including all intellectual property rights, in and to the Powersift IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
9.2 Customer Data. Powersift acknowledges that, as between Powersift and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Other than the limited licenses granted in Section 3 to Powersift in order for it to provide the Platform to Customer and end users, nothing herein shall be construed as a grant of right to Powersift of any Customer Data.
9.3 Feedback. If Customer or any of its Authorized Users sends or transmits any communications or materials to Powersift by mail, email, telephone, or otherwise, suggesting or recommending changes to the Powersift IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Powersift is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.
10 Warranty Disclaimer. THE POWERSIFT IP IS PROVIDED “AS IS” AND POWERSIFT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. POWERSIFT 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. POWERSIFT MAKES NO WARRANTY OF ANY KIND THAT THE POWERSIFT IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, PROVIDE ACCURATE OR COMPLETE VULNERABILITY DETECTION OR ASSET DISCOVERY, PREVENT CYBER ATTACKS, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER PLATFORM, OR BE SECURE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. POWERSIFT WILL HAVE NO LIABILITY FOR DECISIONS BASED ON INFORMATION, SECURITY ASSESSMENTS, METRICS, OR DATA PROVIDED VIA THE PLATFORM, OR CUSTOMER’S USE THEREOF OR RELIANCE THEREON. TO THE EXTENT CUSTOMER UTILIZES THE PLATFORM TO IMPLEMENT DIGITAL SECURITY OR VULNERABILITY POLICIES AND PROCEDURES, OR OTHERWISE MAKES CHANGES TO ITS CODE BASES OR PRODUCTS, POWERSIFT IS NOT RESPONSIBLE FOR THE RESULTS OR ANY LACK THEREOF RELATED TO THE SAME.
CUSTOMER FURTHER ACKNOWLEDGES THAT THE PLATFORM UTILIZES ARTIFICIAL INTELLIGENCE MODELS (THE “AI MODELS”), INCLUDING THE OPEN AI MODEL, TO ANALYZE CUSTOMER DATA AND GENERATE REPORTS. CUSTOMER ACKNOWLEDGES THAT ANY REPORTS GENERATED BY THE PLATFORM ARE INTENDED FOR INFORMATIONAL PURPOSES ONLY AND DO NOT CONSTITUTE LEGAL ADVICE. THE REPORTS ARE GENERATED AUTOMATICALLY AND REFINED BY POWERSIFT BASED ON CUSTOMER DATA SELECTED AND SUBMITTED BY CUSTOMER. POWERSIFT DOES NOT WARRANT THE ACCURACY, COMPLETENESS, OR RELIABILITY OF THE REPORTS, THAT REPORTS WILL BE ERROR-FREE OR ACHIEVE CERTAIN RESULTS, OR THAT THE FORMAT OF ANY REPORT WILL MEET SUBMISSION REQUIREMENTS FOR THE CUSTOMER DATA TO ANY THIRD PARTY. CUSTOMER IS ULTIMATELY RESPONSIBLE FOR ENSURING THE COMPLETENESS AND ACCURACY OF ANY REPORTS. THE PLATFORM AND REPORTS ARE PROVIDED “AS-IS” AND “AS AVAILABLE,” WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. EXCEPT FOR ANY WARRANTIES EXPRESSLY MADE HEREIN, POWERSIFT EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT
11 Indemnification.
11.1 Powersift Indemnification.
11.1.1 Powersift shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) brought against Customer alleging that the Platform, or any use of the Platform in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights; provided that Customer promptly notifies Powersift in writing of the claim, cooperates with Powersift, and allows Powersift sole authority to control the defense and settlement of such claim.
11.1.2 If such a claim is made or appears possible, Customer agrees to permit Powersift, at Powersift’s sole discretion: to (i) modify or replace the Platform, or component or part thereof, to make it non-infringing; or (ii) obtain the right for Customer to continue use. If Powersift determines that neither alternative is reasonably commercially available, Powersift may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
11.1.3 This Section 10.1 will not apply to the extent that the alleged infringement arises from: (i) use of the Platform in combination with data, software, hardware, equipment, or technology not provided by Powersift or authorized by Powersift in writing; (ii) modifications to the Platform not made by Powersift; (iii) Customer Data; or (iv) Third-Party Products (including any AI Models).
11.2 Customer Indemnification. Customer shall indemnify, hold harmless, and, at Powersift’s option, defend Powersift from and against any Losses resulting from any Third-Party Claim alleging that the Customer Data , or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property or other rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) breach of confidentiality, attorney-client privilege, or work product doctrine; (iii) use of the Platform in a manner not authorized by this Agreement; or (iv) use of the Platform in combination with data, software, hardware, equipment or technology not provided by Powersift or authorized by Powersift in writing; in each case provided that Customer may not settle any Third-Party Claim against Powersift unless Powersift consents to such settlement, and further provided that Powersift will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
11.3 Sole Remedy. THIS SECTION 10.3 SETS FORTH CUSTOMER’S SOLE REMEDIES AND POWERSIFT’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE PLATFORM INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL POWERSIFT’S AGGREGATE LIABILITY UNDER THIS SECTION 10 EXCEED THE TOTAL AMOUNTS PAID TO POWERSIFT IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
12 Limitations of Liability. EXCEPT FOR A BREACH OF ITS CONFIDENTIALITY OBLIGATIONS OR FULFILMENT OF ITS INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER POWERSIFT WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT FOR A BREACH OF ITS CONFIDENTIALITY OBLIGATIONS OR FULFILMENT OF ITS INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO POWERSIFT UNDER THIS AGREEMENT IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
13 Subscription Period and Termination.
13.1 Subscription Period. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for the period identified in the Order (the “Initial Subscription Period”). This Agreement will automatically renew for additional successive terms equal to the length of the Initial Subscription Period unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Subscription Period” and together with the Initial Subscription Period, the “Subscription Period”).
13.2 Termination. In addition to any other express termination right set forth in this Agreement:
13.2.1 Powersift may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than ten (10) calendar days after Powersift’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 2.3, Section 3.2, or Section 6;
13.2.2 either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) calendar days after the non-breaching Party provides the breaching Party with written notice of such breach; or
13.2.3 either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
13.3 Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Powersift IP and, without limiting Customer’s obligations under Section 6, Customer shall delete, destroy, or return all copies of the Powersift IP and certify in writing to the Powersift that the Powersift IP has been deleted or destroyed. Prior to termination or expiration of this Agreement, Customer shall make reasonable efforts to export all Customer Data and applicable Usage Data it requires from the Platform. Notwithstanding the foregoing, Powersift will retain and host Customer Data and Usage Data of Customer for an additional thirty (30) days following the expiration or termination of this Agreement to allow Customer time to achieve the foregoing. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
13.4 Survival. This Section 12.4 and Sections 1, 5, 6, 8, 9, 10, 11, 12.3, and 13 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
14 Miscellaneous.
14.1 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes 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, and 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, the related Orders and Statements of Work, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement; and (ii) second, any other documents incorporated herein by reference.
14.2 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the Customer Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
14.3 Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, government shutdowns, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
14.4 Amendment and Modification. No amendment or modification to this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
14.5 Waiver. No failure or delay by either Party in exercising any right or remedy available to it in connection with this Agreement will constitute a waiver of such right or remedy. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the Party granting the waiver.
14.6 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will 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 shall negotiate in good faith to modify this Agreement so as to effect their original intent 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.
14.7 Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware 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 Delaware.
14.8 Dispute Resolution. Any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved thereby within a period of sixty (60) days after notice of a dispute has been given by one party hereunder to the other, must be finally settled by arbitration in Los Angeles County, California using the English language in accordance with the Comprehensive Arbitration Rules and Procedures of JAMS (formerly operating as, Judicial Arbitration and Mediation Services, Inc.) then in effect, by one or more commercial arbitrator(s) with substantial experience in resolving complex commercial contract disputes, who may or may not be selected from the appropriate list of JAMS arbitrators. If the parties cannot agree upon the number and identity of the arbitrators within fifteen (15) days following the Arbitration Date, then a single arbitrator will be selected on an expedited basis in accordance with the Arbitration Rules and Procedures of JAMS. The arbitrator(s) will have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator(s) may determine. The prevailing party in the arbitration will be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party will have the right to seek equitable relief from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in Los Angeles County.
14.9 Limitation on Actions. No action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after the aggrieved party learns or should have learned of such cause of action.
14.10 Relationship of Parties. For purposes of this Agreement, Customer is not an agent of Powersift, and Customer has no express or implied authority to act on behalf of, or make any representations whatsoever on behalf of, Powersift. Powersift is an independent contractor and neither party shall have the power or authority to bind the other party to any contract or obligation.
14.11 Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Powersift. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
14.12 Export Regulation. The Platforms utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Platform or the underlying software or technology to, or make the Platform or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Platform or the underlying software or technology available outside the US.
14.13 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2.3, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a Powersift or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
14.14 Publicity. Powersift may identify Customer as a user of the Platform and may use Customer’s name, logo, and other trademarks in Powersift’s Customer list, press releases, blog posts, advertisements, and website (and all use thereof and goodwill arising therefrom shall inure to the sole and exclusive benefit of Customer). Otherwise, neither Party may use the name, logo, or other trademarks of the other Party for any purpose without the other Party’s prior written approval.
