These terms of service, including the Schedules (see attached below) (“Terms”), are between ScaleWith, Inc., a Delaware corporation (“ScaleWith,” “Us,” “We” or “Our”) and the contracting party identified on the Order Form (“User” or “You”), together referred to as the “Parties” and each individually as a “Party,” as of the Effective Date. The Parties hereby agree to the Terms in conjunction with the Order Form (collectively the “Agreement”). In the event of a conflict between (i) the terms and conditions in the Order Form, and (ii) these Terms, the following shall be the order of precedence: the Schedules; the remaining Terms (i.e., those not in conflict); and lastly, the Order Form, unless otherwise explicitly agreed to in writing between the Parties (e.g., an amendment to the Agreement or specific terms and conditions set forth in the Order Form).
THE AGREEMENT GOVERNS YOUR USE OF ALL SERVICES (DEFINED BELOW) MADE AVAILABLE TO YOU BY SCALEWITH, INCLUDING ANY FUNCTIONALITY, CONTENT, OR DATA INCLUDED THEREIN. PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING ANY PART OF THE SERVICES OR OTHERWISE ACCEPTING THIS AGREEMENT, YOU AGREE THAT THIS AGREEMENT SHALL APPLY AND BECOME BINDING ON YOU AND THE COMPANY THAT EMPLOYS YOU OR THAT YOU REPRESENT (COLLECTIVELY, “YOU”) ON THE FIRST DATE YOU ACCESS OR USE ANY PART OF THE SERVICES OR OTHERWISE ACCEPT THIS AGREEMENT, WHETHER BY (i) EXECUTING AN ORDER FORM REFERENCING THESE TERMS OR EQUIVALENT, SUCH AS CLICKING A BOX INDICATING ACCEPTANCE OF THESE TERMS (THE “ORDER FORM”); (ii) USING FREE SERVICES; OR (iii) OTHERWISE USING THE SERVICES (THE “EFFECTIVE DATE” UNLESS OTHERWISE SET OUT IN THE ORDER FORM). IF YOU DO NOT AGREE TO THE AGREEMENT, YOU ARE NOT AUTHORIZED TO USE THE SERVICES.
FROM TIME TO TIME, WE MAY CHANGE THESE TERMS FOR OUR BUSINESS PURPOSES AND TO COMPLY WITH CHANGES IN APPLICABLE LAW. IN THE EVENT OF ANY SUBSTANTIVE OR MATERIAL CHANGES, WE WILL COMMUNICATE THESE CHANGES TO YOU BY POSTING THE UPDATED TERMS IN THE SCALEWITH SERVICES AND/OR NOTIFYING YOU OF THE CHANGE VIA EMAIL, OR OTHER METHODS. YOUR CONTINUED USE OF THE SCALEWITH SERVICES CONSTITUTES YOUR AGREEMENT TO FOLLOW AND BE BOUND BY THE UPDATED TERMS.
Subject to the terms and conditions of this Agreement, the Parties agree to the following:
“Account” means a unique account established by User to enable its Authorized Users to access and use a Service.
“Account Administrator” is an Authorized User who is assigned and expressly authorized by User as its agent to manage User’s Account, including, without limitation, to configure administration settings, assign access and use authorizations, request different or additional services, etc.
“Authorized User” means one individual natural person, whether an employee, business partner, contractor, or agent of User who is registered by User in User’s Account to use the Services. An Authorized User must be identified by a unique email address and username, and two or more persons may not use the Services as the same Authorized User. Use of the Services will be allowed only if the Authorized User is (i) under confidentiality obligations with User at least as restrictive as those in the Agreement, and (ii) is accessing or using the Services solely to support User’s internal business purposes.
“Confidential Information” means: (a) for ScaleWith and its affiliates, the Services, Documentation and other related technical information, security policies and processes, product roadmaps, and pricing; (b) for User, any User Data; (c) any other information of a Party (or its affiliates in the case of ScaleWith) that is disclosed in writing or orally and is designated as confidential or proprietary at the time of disclosure to the Party receiving Confidential Information (“Recipient”) (and, in the case of oral disclosures, summarized in writing and delivered to the Recipient within thirty (30) days of the initial disclosure), or that due to the nature of the information the Recipient should reasonably understand it to be confidential information of the disclosing Party; and (d) the Agreement. Confidential Information does not include any information that: (i) was or becomes generally known to the public through no fault or breach of the Agreement by the Recipient; (ii) was rightfully in the Recipient’s possession at the time of disclosure without restriction on use or disclosure; (iii) was independently developed by the Recipient without use of or reference to the disclosing Party’s Confidential Information; or (iv) was rightfully obtained by the Recipient from a third party not under a duty of confidentiality and without restriction on use or disclosure.
“Data Processing Agreement” is set out at the following location: https://www.ScaleWith.com/data-processing-agreement.
“Documentation” means ScaleWith’s then-current technical and functional documentation for the Services as made generally available by ScaleWith.
“Social Impact Funding Service” means a service offered by ScaleWith to enable the User or Authorized User to fund a social impact program(s) chosen within the Service for a committed amount (the “Social Impact Funding”).
“Schedules” means additional terms and conditions that are set out in a schedule at the end of these Terms.
“Service(s)” means the software or services, provided by ScaleWith under an Order Form (“Platform Service”), including ScaleWith’s software as a service (SaaS) platform (the “Platform”) that can be accessed via a web browser or via application software (“Application Service”), and may include software, source code, or other technology licensed to ScaleWith from third parties and embedded into the services that ScaleWith provides to a User. Further, Services may include, among other things, ScaleWith’s vetting of social impact organizations offered on its Platform and various related reporting services. Notwithstanding the foregoing, Services do not include Third-Party Services (defined below).
“Service Fee” means a fee charged by ScaleWith for providing its Services (as further defined below).
“Third-Party Services” means services, software, products, applications, integrations, and other features or offerings that are provided by User or obtained by User, from a third party.
“User Data” means any content, materials, data and/or information that User or its Authorized Users directly input into the Services. User Data does not include any portion of the Services or material provided by or on behalf of ScaleWith or any data generated by or for the Services including Services Data.
2. USAGE AND ACCESS RIGHTS
2.1 Right to Use. ScaleWith will provide the Services to the User as set forth in the Order Form. ScaleWith grants to User a worldwide, limited, non-exclusive, non-transferable right and license during the Term, solely for its internal business purposes, and in accordance with the Documentation, to: (a) access and use the Services; (b) access and use the Documentation; and (c) where granted Account Administrator rights by ScaleWith, implement, configure, and through its Account Administrator, permit its Authorized Users to access and use the Services. User will ensure all Authorized Users using the Services under its Account comply with all of User’s and Authorized Users’ obligations under the Agreement, and User is responsible for their acts and omissions relating to the Agreement as though they were those of User.
2.2 Restrictions. User shall not, and shall not permit its Authorized Users or others under its control, to do the following with respect to the Services:
a) use the Services, or allow access to it, in a manner that circumvents contractual or technological usage restrictions or that exceeds User’s authorized use set forth in the Agreement, including the applicable Order Form;
b) license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time-share or otherwise make any portion of the Services or Documentation available for access by third parties except as otherwise expressly provided in the Agreement;
c) access or use the Services or Documentation for the purpose of: (i) developing or operating products or services intended to be offered to third parties in competition with the Services, or (ii) allowing access to its Account by a competitor of ScaleWith;
d) reverse engineer, decompile, disassemble, or copy any of the Services or technologies, or otherwise attempt to derive source code or other trade secrets or create any derivative works from or about any of the Services or technologies, or use the machine-learning algorithm output generated from the Services to train, calibrate, or validate, in whole or in part, any other systems, programs or platforms, or for benchmarking, software-development, or other competitive purposes, except pursuant to User’s non-waivable rights under applicable law, without ScaleWith’s written consent;
e) use the Services or Documentation in a way that: (i) violates or infringes upon the rights of a third party, including those pertaining to: contract, intellectual property, privacy, or publicity; or (ii) effects or facilitates the storage or transmission of libelous, tortious, or otherwise unlawful material including, but not limited to, material that is harassing, threatening, or obscene;
f) use the Services to create, operate, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs, or circumvent or disclose the user authentication or security of the Services or any host, network, or account related thereto or use any aspect of the Services components other than those specifically identified in an Order Form, even if technically possible; or
g) use, or allow the use of, the Services in violation of Section 13.5 (Trade Restrictions).
2.3 Suspension of Access. ScaleWith may suspend any use of the Services or remove or disable any Account or content that ScaleWith reasonably and in good faith believes violates Section 2.2 above. ScaleWith will use commercially reasonable efforts to notify User prior to any such suspension or disablement, unless ScaleWith reasonably believes that: (a) it is prohibited from doing so under applicable law or under legal process (such as court or government administrative agency processes, orders, mandates, and the like); or (b) it is necessary to delay notice in order to prevent harm to the Services or a third party.
2.4 Third-Party Services. User may choose to obtain Third-Party Services from third parties and/or ScaleWith (for example, through a ScaleWith arrangement or otherwise). Any acquisition by User of Third-Party Services is solely between User and the applicable Third-Party Service provider and ScaleWith does not warrant, support, or assume any liability or other obligation with respect to such Third-Party Services. In the event User chooses to integrate or interoperate Third-Party Services with Services in a manner that requires ScaleWith or the Services to exchange User Data with such Third-Party Service or Third-Party Service provider, User: (a) grants ScaleWith permission to allow the Third-Party Service and Third-Party Service provider to access User Data and information about User’s usage of the Third-Party Services as appropriate and necessary to enable the interoperation of that Third-Party Service with the Services; (b) acknowledges that any exchange of data between User and any Third-Party Service is solely between User and the Third-Party Service provider and is subject to the Third-Party Service provider’s terms and conditions governing the use and provision of such Third-Party Service (the presentation and manner of acceptance of which is controlled solely by the Third-Party Service provider); and (c) agrees that ScaleWith is not responsible for any disclosure, modification or deletion of User Data resulting from access to such data by Third-Party Services and Third-Party Service providers.
2.6 Service Changes. ScaleWith reserves the right to modify the Services at any time and for any reason in ScaleWith’s sole discretion, with or without notice to you. Such modification may include, by way of limited example, providing third party data from an alternate data provider, removing, revising, or replacing social impact organizations or programs, etc. ScaleWith may add or remove functionality or features, and/or suspend or stop a particular feature altogether. ScaleWith reserves the right to charge a fee for any of our features at any time, which fee shall be mutually agreed upon in writing between the Parties.
3.1 User Data. User Data processed using the Services is and will remain, as between User and ScaleWith, owned by User. User hereby grants ScaleWith the right to use, process, transmit, store, and otherwise disclose User Data in order to provide the Services, solely in accordance with the Agreement and subject to the terms of Section 11.2 (Required Disclosure) below.
3.2 Services, Documentation, and Services Data. ScaleWith, its affiliates, or its licensors, own all right, title, and interest in and to any and all copyrights, trademark rights, patent rights, database rights, and other intellectual property or other rights in and to the Services, Documentation, and Services Data, any improvements, design contributions, or derivative works thereto, and any knowledge or processes related thereto (including any machine learning algorithms output from the Services) and/or provided hereunder.
3.3 Feedback. ScaleWith encourages User to provide suggestions, proposals, ideas, recommendations, or other feedback regarding improvements to Services and related resources (“Feedback”). To the extent User provides Feedback, User grants to ScaleWith and its affiliates a royalty-free, fully paid, sub-licensable, transferable (notwithstanding Section 13.2 (Assignability)), non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import, and otherwise exploit Feedback (including by incorporation of such feedback into the Services) without restriction. User shall ensure that: (a) Feedback does not identify User, its affiliates, or Authorized Users, and (b) User has obtained requisite authorization from any Authorized User or other third party to grant the license described herein. For the avoidance of doubt, Feedback does not constitute User Confidential Information.
4. SECURITY AND DATA USAGE
4.1 Security. ScaleWith will use commercially reasonable industry standard security technologies in providing the Services. ScaleWith has implemented and will maintain appropriate technical and organizational measures, including information security policies and safeguards, designed to preserve the security, integrity, and confidentiality of User Data and to protect against unauthorized or unlawful disclosure or corruption of or access to such data in accordance with the Security Exhibit for Services found at https://www.ScaleWith.com/security-exhibit.
4.2 User Data. User is responsible for User Data (including User personal data) as entered into, supplied, or used, by User and its Authorized Users in the Services. Further, User is solely responsible for determining the suitability of the Services for User’s business and complying with any applicable data privacy and protection regulations, laws or conventions applicable to User Data and User’s use of the Services. User grants to ScaleWith a royalty-free, fully paid, sub-licensable, transferable (notwithstanding Section 13.2 (Assignability)), non-exclusive, irrevocable, perpetual, worldwide right and license to process and use User Data (including personal data) in accordance with ScaleWith’s Data Processing Agreement for Services, for the sole purpose of and only to the extent necessary for ScaleWith: (a) to provide the current and future Services to users, including by deidentifying, anonymizing and aggregating User Data; (b) to verify User’s compliance with the restrictions set forth in Section 2.2 (Restrictions); and (c) as otherwise set forth in the Agreement. User has obtained requisite authorization from any Authorized User or other third party to grant the rights to the User Data described herein.
4.3 Services Data. ScaleWith may collect and use data, information, or insights generated by or derived from, the use of the Services, including by Users or Authorized Users, (“Services Data”) for its business purposes, including industry analysis, benchmarking, analytics, marketing, and developing, training, improving its products and services and/or developing new products and services. Before publicly disclosing any Services Data, ScaleWith will de-identify and anonymize Services Data in such a manner that does not allow for the identification of User Data as being associated with the specific User or Authorized User, or disclose User’s or Authorized User’s Confidential Information, and will disclose such Services Data in aggregate form only.
5. PAYMENT OF FEES
5.2 Purchase Orders. If User issues a purchase order, then it shall be for the full amount set forth in the applicable Order Form, and ScaleWith hereby rejects any additional or conflicting terms appearing in a purchase order or any other ordering materials submitted by User, and conditions assent solely based on the terms and conditions of the Agreement as offered by ScaleWith. Upon request, ScaleWith shall reference the purchase order number on its invoices, provided, however, that User acknowledges that it is User’s responsibility to provide the corresponding purchase order information (including a purchase order number) to ScaleWith upon the signing of any Order Form. User agrees that a failure to provide ScaleWith with the corresponding purchase order shall not relieve User of its obligations to provide payment to ScaleWith pursuant to Section 5.1 (Fees) above.
5.3 Offsets; Late Charges; Attorneys’ Fees. If ScaleWith owes any amounts to User that are not derived from the Agreement, such amounts will not be withheld or offset against any invoice issued under the Agreement. ScaleWith may assess late charges equal to the lesser of one and one-half percent (1.5%) of the unpaid balance per month or the highest rate permitted by applicable law. User will be responsible for any reasonable attorneys’ fees, costs, and expenses incurred by ScaleWith to collect any amounts that are not paid when due. If User fails to timely pay any amounts due under the Agreement, then without limitation of any of its other rights or remedies, ScaleWith may, upon prior written notice to User, suspend performance of those Services until ScaleWith receives all past due amounts from User.
5.4 Authorized Third Party User Payment Obligations. User understands and agrees that any amounts committed to be paid and/or owed by a third party, which has been granted Authorized User access to ScaleWith by the User, shall be the responsibility of the User to ensure such commitments are paid by such Authorized User.
6.1 Tax Responsibility. All payments required by the Agreement are stated exclusive of all taxes, duties, levies, imposts, fines, or similar governmental assessments, including sales and use taxes, value-added taxes (“VAT”), goods and services taxes (“GST”), excise, business, service, and similar transactional taxes imposed by any jurisdiction and the interest and penalties thereon (collectively, “Taxes”). Without limiting the foregoing, User shall be responsible for and bear all Taxes associated with its purchase of, payment for, access to or use of the Services. Taxes shall not be deducted from the payments to ScaleWith, except as required by law, in which case User shall increase the amount payable as necessary so that after making all required deductions and withholdings, ScaleWith receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made. If User claims tax exempt status for amounts due under the Agreement, it shall provide ScaleWith with valid tax documentation (authorized by the applicable governmental authority) to sustain the exemption on any future audits of User’s invoice. Each Party is responsible for and shall bear Taxes imposed on its net income. User hereby confirms that ScaleWith can rely on the customer name and address set forth in the Order Form(s) completed by User as being the place of supply for Tax purposes. The Parties’ obligations under this Section 6.1 (Tax Responsibility) shall survive the termination or expiration of the Agreement.
6.2 Invoicing Taxes. If ScaleWith is required to invoice or collect Taxes associated with User’s purchase of, payment for, access to or use of the Services, ScaleWith will issue an invoice to User including the amount of those Taxes, itemized where required by law. If applicable, User shall provide to ScaleWith its VAT, GST, Sales Tax Permit (or its equivalent) or similar tax identification number(s) on the Order Form. User shall use the ordered Services for User’s business use in the locations set forth on the Order Form in accordance with the provided VAT or GST identification number(s).
7. TERM AND TERMINATION
7.1 Term. The term of the Agreement shall commence on the Effective Date and shall continue through the contract end date set forth in the applicable Order Form (the “Term”). Termination or expiration of any one particular Order Form shall leave other Order Forms unaffected.
7.2 Termination for Breach; Termination for Insolvency. If either Party commits a material breach or default in the performance of any of its obligations under the Agreement, then the other Party may terminate the Agreement in its entirety after giving the defaulting Party written notice of intent to terminate and the material breach or default in performance is not cured within thirty (30) days or an alternative timeframe mutually agreed upon in writing by the Parties, after the defaulting Party receives notice thereof; provided however, the foregoing 30-day cure period may be shortened by the non-breaching/non-defaulting Party if reasonably warranted based on the severity of the default or material breach and potential negative impact on the non-breaching/non-defaulting Party. Either Party may terminate the Agreement in its entirety upon written notice if the other Party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership, or liquidation, in any jurisdiction, that is not dismissed within sixty (60) days of its commencement, or an assignment for the benefit of creditors.
7.3 Post-Termination Obligations. If the Agreement expires or is terminated for any reason: (a) User will pay to ScaleWith any and all amounts that have accrued before, and remain unpaid as of, the effective date of the expiration or termination; (b) any and all liabilities of either Party to the other Party that have accrued before the effective date of the expiration or termination will survive; (c) unless otherwise agreed to in writing between the Parties, licenses and use rights granted to User with respect to the Services and related intellectual property will immediately terminate; (d) ScaleWith’s obligation to provide any further Services to User under the Agreement will immediately terminate, except any such Services that are expressly to be provided following the expiration or termination of the Agreement; and (e) the Parties’ rights and obligations under Sections 1 (Definitions), 3.2 (Services and Services Data), 3.3 (Feedback), 4.2 (User Data), 4.3 (Services Data), 5 (Payment of Fees), 6 (Taxes), 7.3 (Post-Termination Obligations), 8.4 (Disclaimer), 9 (Third-Party Claims), 10 (Limitation of Liability), 11 (Confidentiality), 12 (Governing Law and Venue), and 13 (General) will survive.
7.4 Retrieval of User Data and Transition Services. If the User terminates the Services, all Authorized Users, including third parties, granted access by the User to use the Services as part of the User’s Account, will no longer have access to the Services or any of its underlying data. During the Term, User may extract User Data from the Services as described in the Documentation. If, upon termination or expiration of the Agreement, User has failed to retrieve its User Data and/or if User otherwise requires further support from ScaleWith in relation to such termination or expiration, User may request and ScaleWith may provide: (a) commercially reasonable assistance in retrieving User Data still remaining in the Services, and/or (b) other reasonable transition assistance, the details of which will be set forth in a mutually agreed upon statement of work between the Parties at ScaleWith’s then-current rates for such services.
8. WARRANTIES AND DISCLAIMERS
8.1 ScaleWith Service Warranties. ScaleWith warrants that: (a) during the applicable Term, the Services, when used as authorized under the Agreement, will perform substantially in conformance with the Documentation associated with the applicable Services; (b) ScaleWith will use commercially reasonable efforts to ensure that the Services do not introduce files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses into User’s system; and (c) the operation of its business as it relates to the Services will materially comply with all applicable laws and regulations. User’s sole and exclusive remedy for any breach of the warranties in 8.1(a) and (b) above by ScaleWith is for ScaleWith to repair or replace the affected Services to make them conform, or, if ScaleWith determines that the foregoing remedy is not commercially reasonable, then either Party may terminate the Agreement.
8.2 Mutual Warranties. Each Party represents and warrants that: (a) the Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against it in accordance with the terms of the Agreement; (b) no authorization or approval from any third party is required in connection with its execution of the Agreement; and (c) it is duly organized and validly existing under the laws of the state of its incorporation or formation and has full power and authority to enter into the Agreement and to carry out the provisions hereto.
8.3 DISCLAIMER. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THE AGREEMENT, NEITHER PARTY: (A) MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED IN FACT OR BY OPERATION OF LAW, OR STATUTORY, AS TO ANY MATTER WHATSOEVER; AND (B) DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE. SCALEWITH DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS THAT THE SERVICES, DOCUMENTATION, SERVICES DATA OR ANY DELIVERABLES (INCLUDING ANY THIRD-PARTY DATA) (A) WILL HAVE ANY PARTICULAR BUSINESS RESULT, INCLUDING ANY COST SAVINGS, PROFIT IMPROVEMENT, IMPROVEMENT OF USER’S SOCIAL IMPACT RATING, OR OTHER IMPROVED BUSINESS RESULTS, (B) WILL BE UNINTERRUPTED OR ERROR-FREE, OR (C) WILL MEET USER’S REQUIREMENTS OR EXPECTATIONS.
9. THIRD-PARTY CLAIMS
9.1 By ScaleWith. ScaleWith will defend and, in accordance with Section 9.3 (Procedures), indemnify User from and against, any: (a) third-party claim; (b) third-party legal action; or (c) administrative agency action or proceeding (each, a “Claim”) solely to the extent that such Claim directly arises from: (i) any actual breach by ScaleWith of its confidentiality obligations in the Agreement; or (ii) any alleged direct infringement of any third-party intellectual property right occurring from User’s use of the Services as authorized under the Agreement. Notwithstanding the foregoing, ScaleWith will not be responsible for any Claim due to User’s or its Authorized User’s combination of Services with goods or services provided by third parties, including any Third-Party Services; adherence to specifications, designs, or instructions furnished by User; or User’s modification of the Services not described in the Documentation or otherwise expressly authorized by ScaleWith in writing.
9.2 By User. User will defend and, in accordance with Section 9.3 (Procedures), indemnify ScaleWith from and against, any Claim to the extent arising from: (1) User’s or its Authorized User’s combination of Services with goods or services provided by third parties, including any Third-Party Services; adherence to specifications, designs, or instructions furnished by User; or User’s modification of the Services not described in the Documentation or otherwise expressly authorized by ScaleWith in writing; or (2) any breach by User of its obligations under this Agreement.
9.3 Procedures. The Parties’ respective obligations in this Section 9 (Third-Party Claims) are conditioned on: (a) the Party being indemnified as set forth in this Section 9 (“Indemnified Parties”) giving the other Party (“Indemnifying Party”) prompt written notice of the Claim, except that the failure to provide prompt notice will only limit the indemnification obligations to the extent the Indemnifying Party is prejudiced by the delay or failure; (b) the Indemnifying Party being given full and complete control over the defense and settlement of the Claim; and (c) the relevant Indemnified Parties providing assistance in connection with the defense and settlement of the Claim, as the Indemnifying Party may reasonably request. The Indemnifying Party will indemnify the Indemnified Parties against: (i) all damages, costs, and attorneys’ fees finally awarded against any of them with respect to any Claim; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred and authorized in advance in writing by the Indemnifying Party in connection with the defense of the Claim (other than attorneys’ fees and costs incurred without the Indemnifying Party’s prior written consent after it has accepted defense of such Claim); and (iii) all amounts that the Indemnifying Party agreed to pay to any third party in settlement of any Claims arising under this Section 9 (Third-Party Claims) and settled by the Indemnifying Party or with its approval. The Indemnifying Party shall not, without the relevant applicable Indemnified Parties’ prior written consent, agree to any settlement on behalf of such Indemnified Parties which includes either the obligation to pay any amounts, or any admissions of liability, whether civil or criminal, on the part of any of the Indemnified Parties.
9.4 Infringement Remedy. If User is enjoined or otherwise prohibited from using any of the Services or a portion thereof based on a Claim covered by ScaleWith’s indemnification obligations under Section 9.1 above, then ScaleWith will, at its sole expense and option, either: (a) obtain for User the right to use the affected portions of the Services; (b) modify the allegedly infringing portions of the Services so as to avoid the Claim without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Services with items of substantially similar functionality so as to avoid the Claim. If ScaleWith determines that the foregoing remedies are not commercially reasonable and notifies User of such determination, then either Party may terminate the Agreement, and in such case, ScaleWith will provide a prorated refund to User for any prepaid fees for the infringing Services received by ScaleWith under the Agreement that correspond to the unused portion of the Term. The remedies set out in this Section 9 are User’s sole and exclusive remedies for any actual or alleged infringement of any third-party intellectual property rights.
10. LIMITATION OF LIABILITY
10.1 Exclusion of Damages. UNDER NO CIRCUMSTANCES, AND REGARDLESS OF THE NATURE OF THE CLAIM, SHALL SCALEWITH (OR ITS RESPECTIVE AFFILIATES) OR YOU BE LIABLE TO EACH OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, COVER, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES.
10.2 Limitation of Liability. EXCEPT FOR (A) EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THE AGREEMENT; (B) DAMAGES RESULTING FROM DEATH OR BODILY INJURY, OR PHYSICAL DAMAGE TO TANGIBLE REAL OR PERSONAL PROPERTY, CAUSED BY EITHER PARTY’S NEGLIGENCE; (C) DAMAGES RESULTING FROM EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (D) ENFORCEMENT OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; AND (E) SCALEWITH’S RIGHT TO COLLECT UNPAID FEES DUE HEREUNDER, TO THE EXTENT PERMITTED BY LAW, THE TOTAL, CUMULATIVE LIABILITY OF EACH PARTY (AND THEIR RESPECTIVE AFFILIATES) ARISING OUT OF OR RELATED TO THE AGREEMENT WILL BE LIMITED TO THE AMOUNTS PAID BY USER FOR THE SCALEWITH SERVICE(S) DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
10.3 Independent Allocations of Risk. Each provision of the Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of the Agreement between the Parties. This allocation is reflected in the pricing and/or other consideration offered by ScaleWith to User and is an essential element of the basis of the agreement between the Parties. Each of these provisions is severable and independent of all other provisions of the Agreement, and each of these provisions will apply even if the warranties in the Agreement have failed of their essential purpose.
11.1 Restricted Use and Nondisclosure. During and after the Term, Recipient will: (a) use the Confidential Information of the disclosing Party solely for the purpose for which it is provided; (b) not disclose such Confidential Information to a third party, except on a need-to-know basis to its affiliates (in the case of Scalewith), attorneys, auditors, consultants, and service providers who are under confidentiality obligations at least as restrictive as those contained herein; and (c) protect such Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
11.2 Required Disclosure. If Recipient is required by law to disclose Confidential Information of the disclosing Party, Recipient will give prompt written notice to the disclosing Party before making the disclosure, unless prohibited from doing so by legal or administrative process, and cooperate with the disclosing Party to obtain where reasonably available, an order protecting the Confidential Information from public disclosure.
11.3 Ownership. Recipient acknowledges that, as between the Parties, all Confidential Information it receives from the disclosing Party, including all copies thereof in Recipient’s possession or control, in any media, is proprietary to and exclusively owned by the disclosing Party. Nothing in the Agreement grants Recipient any right, title, or interest in or to any of the disclosing Party’s Confidential Information. Recipient’s incorporation of the disclosing Party’s Confidential Information into any of its own materials will not render Confidential Information non-confidential.
11.4 Remedies. Recipient acknowledges that any actual or threatened breach of this Section 11 (Confidentiality) may cause irreparable, non-monetary injury to the disclosing Party, the extent of which may be difficult to ascertain. Accordingly, the disclosing Party is entitled to (but not required to) seek injunctive relief in addition to all remedies available to the disclosing Party at law and/or in equity, to prevent or mitigate any breaches of the Agreement or damages that may otherwise result from those breaches. Absent written consent of the disclosing Party to the disclosure, the Recipient, in the case of a breach of this Section 11 (Confidentiality), has the burden of proving that the disclosing Party’s Confidential Information is not, or is no longer, confidential or a trade secret and that the disclosure does not otherwise violate this Section 11 (Confidentiality).
11.5 Return of Confidential Information. The Recipient shall (i) return to the disclosing Party at the address set forth in the applicable Order Form, all Confidential Information that is in tangible form and/or (ii) destroy or expunge from its computer systems all Confidential Information that is in electronic form and provide written confirmation thereof, in each case, immediately upon the disclosing Party’s request provided, however, that Recipient may retain copies of Confidential Information that are (a) stored on Recipient’s IT backup and disaster recovery systems until the ordinary course deletion thereof, or (b) to the extent required by applicable law or Recipient’s document retention policies.
12. GOVERNING LAW AND VENUE
12.1 This Agreement is governed by the laws of the state of Delaware, U.S.A., without reference to its choice of law rules to the contrary. The Parties hereby irrevocably consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in the State of Delaware, for the purposes of adjudicating any dispute arising out of the Agreement. To the extent permitted by law, choice of law rules, the 1980 U.N. Convention on Contracts for the International Sale of Goods, and the Uniform Computer Information Transactions Act as enacted, shall not apply. Notwithstanding the foregoing, either Party may at any time seek and obtain appropriate legal or equitable relief in any court of competent jurisdiction for claims regarding such Party’s intellectual property rights.
12.2 Language. To the extent allowed by law, the English version of the Agreement is binding, and other translations are for convenience only.
13.1 Relationship. The Parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. At ScaleWith’s sole discretion, ScaleWith shall have the right to exercise User’s rights under this Agreement, as a third-party beneficiary to this Agreement, should there be a need to enforce any rights or obligations under this Agreement related to an Authorized User or third party. Should ScaleWith exercise this right under the Agreement, User shall provide reasonable assistance to assist ScaleWith in enforcing this Agreement. Except as set forth in the Agreement, nothing in the Agreement, expressed or implied is intended to give rise to any third-party beneficiary.
13.2 Assignability. You may not assign this Agreement in whole or in part without the prior written consent of ScaleWith. Any purported assignment or delegation contrary to this Section shall be deemed null and void ab initio.
13.3 Notices. Any notice required or permitted to be given in accordance with the Agreement will be effective only if it is in writing and sent using: (a) certified or registered mail; or (b) a nationally recognized overnight courier, to the appropriate Party at the address set forth on the Order Form, with a copy, in the case of ScaleWith, to legal@ScaleWith.com. Each Party hereto expressly consents to service of process by registered mail. Either Party may change its address for receipt of notice by notice to the other Party through a notice provided in accordance with this Section 13.3 (Notices). Notices are deemed given upon five (5) business days following the date of mailing, or one (1) business day following delivery to a courier guaranteeing overnight delivery.
13.4 Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under the Agreement due to any cause beyond the reasonable control of the Party invoking this provision (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, telecommunications outage not caused by the obligated Party, or other similar causes) (“Force Majeure Event”), the affected Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that the affected Party: (a) provides the other Party with prompt notice of the nature and expected duration of the Force Majeure Event; (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such Force Majeure Event; (c) provides periodic notice of relevant developments; and (d) provides prompt notice of the end of such Force Majeure Event. Delays in fulfilling the obligations to pay hereunder are excused only to the extent that payments are entirely prevented by the Force Majeure Event. If Services are not restored within thirty (30) days of the Force Majeure Event, User may terminate the Agreement upon providing written notice to ScaleWith, and in such case, ScaleWith will provide a prorated refund to User for any prepaid fees received by ScaleWith under the Agreement that correspond to the unused portion of the Term.
13.5 Trade Restrictions. The Services, Documentation, and the provision and any derivatives thereof are subject to the export control and sanctions laws and regulations of the United States and other countries that may prohibit or restrict access by certain persons or from certain countries or territories (“Trade Restrictions”).
a) Each Party shall comply with all applicable Trade Restrictions in performance of the Agreement. For the avoidance of doubt, nothing in the Agreement is intended to induce or require either Party to act in any manner which is penalized or prohibited under any applicable laws, rules, regulations, or decrees.
b) Each Party represents that it is not a Restricted Party. “Restricted Party” means any person or entity that is: (i) located or organized in a country or territory subject to comprehensive U.S. sanctions (currently including Cuba, Crimea, Iran, North Korea, Syria) (“Sanctioned Territory”); (ii) owned or controlled by or acting on behalf of the government of a Sanctioned Territory; (iii) an entity organized in or a resident of a Sanctioned Territory; (iv) identified on any list of restricted parties targeted under U.S., EU or multilateral sanctions, including, but not limited to, the U.S. Department of the Treasury, Office of Foreign Assets Control’s (“OFAC” ) List of Specially Designated Nationals and Other Blocked Persons, the OFAC Sectoral Sanctions List, the U.S. State Department’s Nonproliferation Sanctions and other lists, the U.S. Commerce Department’s Entity List or Denied Persons List located at https://www.export.gov/article?id=Consolidated-Screening-List, the consolidated list of persons, groups and entities subject to EU financial sanctions from time to time; or (v) owned or controlled by, or acting on behalf of, any of the foregoing.
c) User acknowledges and agrees that it is solely responsible for complying with, and shall comply with, Trade Restrictions applicable to any of its Authorized Users’ content or User Data transmitted through the Services. User shall not and shall not permit any Authorized User to access, use, or make the Services available to or by any Restricted Party or to or from within any Sanctioned Territory.
13.6 Anti-Corruption. In connection with the Services performed under the Agreement and User’s use of the Services, the Parties agree to comply with all applicable anti-corruption and anti-bribery related laws, statutes, and regulations.
13.7 U.S. Government Rights. All Services, including Documentation, and any software as may be provided under an applicable Schedule, are deemed to be “commercial computer software” and “commercial computer software documentation.” “Commercial computer software” has the meaning set forth in Federal Acquisition Regulation (“FAR”) 2.101 for civilian agency purchases and the Department of Defense (“DOD”) FAR Supplement (“DFARS”) 252.227-7014(a)(1) for defense agency purchases. If the software is licensed or the Services are acquired by or on behalf of a civilian agency, ScaleWith provides the commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of the Agreement as required in FAR 12.212 (Computer Software) and FAR 12.211 (Technical Data) and their successors. If the software is licensed or the Services are acquired by or on behalf of any agency within the DOD, ScaleWith provides the commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of the Agreement as specified in DFARS 227.7202-3 and its successors. Only if this is a DOD prime contract or DOD subcontract, the Government acquires additional rights in technical data as set forth in DFARS 252.227-7015. Except as otherwise set forth in an applicable Schedule, this Section 13.7 (U.S. Government Rights) is in lieu of, and supersedes, any other FAR, DFARS or other clause or provision that addresses U.S. Government rights in computer software or technical data.
13.8 Publicity & Marks Usage. Unless and except as otherwise agreed to in writing between the Parties, the Parties agree to jointly collaborate on various promotional and publicity announcements and materials related to this Agreement. For example, the Parties may work together on producing, exhibiting, and distributing various materials, including without limitation: (i) individual and joint press releases (which press releases shall be mutually agreed upon in writing by the Parties), (ii) social media postings, (iii) case studies and testimonials, (iv) press release coverage and interviews, (v) speaking engagements for targeted events, and (vi) awards submittals. ScaleWith shall be entitled to publicize and promote its involvement with User as described herein by all means and methods in any and all media, whether now known or hereafter devised, including without limitation, the right to use and distribute User’s trademarks and/or logo (the “User Marks”) which User shall make available (fully cleared by User for the uses contemplated in this Agreement). User grants ScaleWith a perpetual, limited, non-exclusive, paid-up, non-transferable permission to display the User Marks royalty free, throughout the world and in perpetuity. ScaleWith acknowledges that User is the sole and exclusive owner of the User Marks and that any goodwill created shall inure solely and exclusively to the benefit of User.
13.9 Waiver. The waiver by either Party of any breach of any provision of the Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with the Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of the Agreement.
13.10 Severability. If any part of the Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of the Agreement will remain in full force and effect.
13.11 Insurance. ScaleWith will maintain, at its sole expense and at its sole discretion, insurance in such amounts and with such types of coverage as is deemed usual and customary with coverage limits that are deemed appropriate for the Services supplied under the Agreement. At a minimum, ScaleWith shall maintain: (i) commercial general liability insurance (including automobile liability if applicable to the Services); (ii) errors and omissions insurance (which will include cyber-liability insurance); and (iii) insurance for claims under workers compensation laws or other similar laws or regulations.
13.12 Entire Agreement. The Agreement is the final, complete, and exclusive expression of the agreement between the Parties regarding the Services provided under the Agreement. The Agreement supersedes and replaces, and the Parties disclaim any reliance on, all previous oral and written communications (including any confidentiality agreements pertaining to the Services under the Agreement), representations, proposals, understandings, undertakings, and negotiations with respect to the subject matter hereof and apply to the exclusion of any other terms that User seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing. The Agreement may be changed only by a written agreement signed by an authorized agent of both Parties. The Agreement will prevail over terms and conditions of any User-issued purchase order or other ordering documents, which will have no force and effect, even if ScaleWith accepts or does not otherwise reject the purchase order or other ordering document.
SellWith for Salesforce Application Service Addendum
If the User has purchased and/or Authorized Users have been granted Application Services rights under this Agreement to use SellWith for Salesforce, the following additional terms and conditions apply.
Unless otherwise defined in this Schedule, capitalized terms will have the meaning given to them in the Agreement. The following definitions are applicable solely to this Schedule, unless otherwise explicitly set forth below.
“AppExchange” means the Salesforce online directory of on-demand applications that work with the Application Services provided by ScaleWith, located at http://www.appexchange.com or at any successor Salesforce websites.
“Application Service” means SellWith for Salesforce application, which is offered by ScaleWith on the AppExchange and which serves as an interface into the separate Platform Service that is not required for installation, access and/or full use of any features and capabilities of the SellWith for Salesforce application.
“SFDC Platform” means the online, web-based platform service provided by salesforce.com, Inc., (“SFDC”) to ScaleWith in connection with ScaleWith’s provision of the Application Service to User.
“SFDC Service” means the online, web-based application and platform service generally made available to the public via http://www.salesforce.com and/or other designated websites, including associated offline components, but excluding AppExchange applications.
a) User subscription to use the SFDC Platform hereunder does not include a subscription to use the SFDC Service. If User wishes to use the SFDC Service or any of its functionalities or services, or to create or use additional custom objects beyond those which appear in the Application Service in the form that it has been provided to User by ScaleWith, visit www.salesforce.com to contract directly with SFDC for such services. In the event User’s access to the Application Service provides User with access to the SFDC Service generally or access to any SFDC Service functionality within it that is in excess to the functionality described in the Application Service’s Documentation, and User has not separately subscribed under a written contract with SFDC for such access, then User agrees to not access and use such functionality, and User agrees that User’s use of such functionality, or User’s creation or use of additional custom objects in the Application Service beyond that which appears in the Application Service in the form provided to User by ScaleWith, would be a material breach of this Agreement.
b) Notwithstanding any access User may have to the SFDC Platform or the SFDC Service via the Application Service, ScaleWith is the sole provider of the Application Service and User is entering into a contractual relationship solely with ScaleWith. In the event that ScaleWith ceases operations or otherwise ceases or fails to provide the Application Service, SFDC has no obligation to provide the Application Service or to refund User any fees paid by User to ScaleWith.
c) User (i) is responsible for all activities occurring under User’s accounts; (ii) is responsible for the content of all User Data; (iii) shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the SFDC Platform and the SFDC Service, and shall notify ScaleWith or Salesforce.com promptly of any such unauthorized use User becomes aware of; and (iv) shall comply with all applicable local, state, federal and foreign laws and regulations in using the SFDC Platform and the SFDC Service.
e) User shall not (i) modify, copy or create derivative works based on the SFDC Platform or the SFDC Service; (ii) frame or mirror any content forming part of the SFDC Platform or the SFDC Service, other than on User’s own intranets or otherwise for User’s own internal business purposes; (iii) reverse engineer the SFDC Platform or the SFDC Service; or (iv) access the SFDC Platform or the SFDC Service in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the SFDC Platform or the SFDC Service.
f) User confirms that User and its Authorized Users have been notified that User Data may be transmitted or processed outside the SFDC Service, such as to the Platform Service, and to that extent, SFDC is not responsible for the privacy, security or integrity of that Customer Data when such User Data is resident on such non-SFDC Services.
If User is compelled by law to disclose confidential information of SFDC, User shall provide SFDC with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at SFDC’s cost, if the other party wishes to contest the disclosure.
User agrees that SFDC shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into any SFDC products or services any suggestions, enhancement requests, recommendations or other feedback provided by User or Authorized Users relating to the operation of the SFDC Platform and/or the SFDC Service.
Subscriptions for the SFDC Platform and the SFDC Service are non-cancelable during a subscription term, unless otherwise specified in User’s agreement with ScaleWith.
The SFDC Platform and SFDC Service includes a certain cumulative amount of storage per User subscription for no additional charge. Contact SFDC or its agent for additional information. Additional storage may be available for purchase from SFDC or its agent.
SALESFORCE.COM MAKES NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO THE SFDC PLATFORM, THE SFDC SERVICE, AND/OR THE APPLICATION SERVICE, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. SALESFORCE.COM MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE APPLICATION SERVICE. SALESFORCE.COM DOES NOT REPRESENT OR WARRANT THAT (A) THE APPLICATION SERVICE WILL BE AVAILABLE, SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH THE SALESFORCE.COM SERVICE OR ANY OTHER APPLICATION, SOFTWARE, HARDWARE, SYSTEM OR DATA, (B) THE APPLICATION SERVICE, THE SFDC PLATFORM OR THE SFDC SERVICE WILL MEET USER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY DATA STORED USING THE APPLICATION SERVICE WILL BE ACCURATE, RELIABLE, OR SECURE, (D) ERRORS OR DEFECTS IN THE APPLICATION SERVICE, THE SFDC PLATFORM, OR THE SFDC SERVICE WILL BE CORRECTED, OR (E) THE APPLICATION SERVICE OR THE SYSTEMS USED BY SCALEWITH TO MAKE APPLICATION SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SFDC PLATFORM AND THE SFDC SERVICE IS PROVIDED STRICTLY ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SALESFORCE.COM DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO APPLICATION SERVICE AND THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
IN NO EVENT SHALL SFDC HAVE ANY LIABILITY TO USER OR ANY AUTHORIZED USER FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON LOST PROFITS, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT USER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SFDC may contact User regarding new SFDC service features and offerings.
United Kingdom Addendum
If the contracting entity, ScaleWith, Ltd., is specifically set forth in the Order Form, the Parties agree that ScaleWith, Ltd shall be the contracting entity with the User and the following country-specific provisions for governing law and venue for all claims and disputes arising out of or relating to the Agreement shall apply.
Section 12.1 shall be replaced with the following:
12.1 United Kingdom, a Member State of the European Economic Area, or Switzerland. The Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including, without limitation, non-contractual disputes or claims) are governed by and construed in accordance with the law of England. Each Party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims). The provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods are expressly excluded and do not apply to the Agreement. Notwithstanding the foregoing, either Party may at any time seek and obtain appropriate legal or equitable relief in any court of competent jurisdiction for claims regarding such Party’s intellectual property rights.