LAST UPDATED: December 16, 2020
When we refer in this Agreement to:
“Platform,” we mean one or more subscription-based, online, web-based software or mobile application offered by or through Personica (including free upgrades and updates thereto made commercially available by Personica to similar customers) and ordered by you under an Order Form.
“Developer Tools,” we mean an application programming interface for a Platform (or a feature of a Platform) that may be provided to you by us upon requesting and receiving an API Key, subject to you meeting certain guidelines and technical and security requirements.
“Documentation,” we mean any related technical or non-technical manuals, instructions, or other documents or materials providing or made available by Personica to Customer which describes the functionality, components, features, or requirements of a Platform, including any aspect of the installation, configuration, integration, operation, availability, use, support, or maintenance thereof. Documentation includes any then-current service level agreement (excluding the Developer Tools).
“Services,” we mean any consulting or similar professional services offered by or through Personica and ordered by you under an Order Form, which may include website design, development, hosting, support and maintenance services, customization of a Platform, email or SMS marketing management or optimization, data integration, enhancement, verification, migration, or optimization services, data analysis, or similar analyses.
“Deliverables,” we mean materials, deliverables, or other work product (or any portion thereof) produced or delivered by or through Personica as part of the Services and expressly designated as a “Deliverable” in an Order Form and ordered by you under such Order Form. To be clear, Deliverables shall not include a Platform, Developer Tools, a Non-Personica Application, or any other Personica Material unless expressly referenced as a “Deliverable” in an Order Form.
“Personica Materials,” we mean the Platform, Developer Tools, Documentation, Services, Deliverables, Usage Data, Feedback, and any other materials or services offered by Personica, and ordered by you under an Order Form. “Personica Materials” designated as beta offerings that we may make available to you from time to time at no charge are provided as-is and as-available without warranty of any kind. We may discontinue any such beta offering at any time without notice and in our sole discretion without any commitment to make any beta offering available.
“Non-Personica Application,” we mean non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with a Platform or Service. These products and services include non-Personica apps available from, for example, the following: our integrations Documentation, partner directory, links made available through a Platform or Service and non-Personica services listed on an Order Form. Personica does not warrant Non-Personica Applications irrespective of whether they may be recommended or offered by Personica to Customer. Personica is not responsible for any disclosure, modification, or deletion of Customer Materials resulting from access by such Non-Personica Application or its provider.
“Customer Materials,” we mean any information, data, and other content that is submitted, posted, or otherwise transmitted by or on behalf of you or an Authorized User through or to a Platform or Service.
“Personal Data,” we mean any information relating to an identified or identifiable natural person where such information is contained within Customer Materials and is protected similarly as personal data, personal information, or personally identifiable information under applicable Data Protection Law.
- PROVISION OF THE PERSONICA MATERIALS.
1.1 Provision of the Personica Materials. We, or one or more of our third-party service providers, will provide you and your authorized employees, contractors, or other persons (each an “Authorized User”) access to and use of the Personica Materials in accordance with this Agreement and any applicable Documentation. We may also provide you access to use our beta or free services at any time by activating them in your account.
1.2 Changes. We regularly update and improve our Platforms, Developer Tools, or Services, which may result in the removal or modification of certain features or functions in order to: (a) improve or enhance the: (i) quality or delivery of a Platform, Developer Tool, or Service; (ii) competitive strength of or market for a Platform, Developer Tool, or Service; or (iii) cost efficiency or performance of a Platform, Developer Tool, or Service; or (b) comply with applicable law (each a “Change”). Any Change will apply to all customers and their respective authorized users as to each specific Platform, Developer Tool, or Service.
1.3 Data Privacy & Security.
1.3.2 You instruct us to use and disclose Customer Materials: (a) as necessary to (i) provide and improve the Personica Materials consistent with this Agreement, including detecting, preventing, and investigating security incidents, fraud, spam, or unlawful use of the Personica Materials and (ii) respond to any technical problems or your queries and ensure the proper working of the Personica Materials, (b) in accordance with applicable law, and (c) as otherwise permitted under this Agreement.
1.3.3 Personica employs a risk-based assessment security program to help protect Customer Materials from unauthorized use, access, or disclosure (collectively, the “Security Measures”). Our program’s framework is based on organizational, technical, and physical safeguards designed to protect the confidentiality, integrity, and available of Customer Materials including: (a) physical and logical access controls (g., multifactor authentication), (b) encryption in transit using industry-recognized protocols, (c) periodic internal and external security audits and assessments, and (d) third-party security incident monitoring and notification. The above Security Measures are the baseline security measures employed by Personica in protecting Customer Materials and, as security threats shift and evolve, we continue to update our security measures and strategy accordingly. Personica, depending on the Platform, uses and leverages AWS and other industry-leading hosting solutions. You may learn more about AWS security here. The terms of the Data Processing Agreement are hereby incorporated by reference and shall apply to the extent any Customer Materials include Personal Data.
1.3.4 While the Personica Materials are not intended to supplant recognized industry best practices that a Customer maintain regular data backups or redundant data archives of its Customer Materials, Personica performs nightly backups of its databases for continuity and preservation purposes (the “Data Backup”). In the event of any loss, destruction, damage, or corruption of Customer Materials attributable to an act or omission of Personica, we will, at our cost and expense and as our sole liability and entire obligation, restore, as your sole remedy, any Customer Materials using any and all available Data Backup(s).
1.4 Point-of-Sale Integration. Personica supports certain specific “point of sale” (POS) systems (a “POS System”) specified (including the version(s)) in the Documentation, and Personica has no control over, nor does it bear responsibility for, upgrades, enhancements, or other changes in technology, coding, or other operating protocols made by Customer, any Authorized User, or a third-party vendor or manufacturer of a POS System which results in a delay, inability, or other error in the retrieval, formatting, accuracy, or delivery of any data processed through the Platform from such POS System. Revenue reporting tools provided as part of the Subscription Service are not intended to be used as systems of record for financial, tax, employee commission, or other regulatory compliance or reporting. The accuracy of reports derived using the revenue reporting tools is your responsibility.
1.6 Analytics & Consulting Services.Personica may provide Deliverable(s) in the nature of analytical and historical information regarding Customer or its consumers (g., acquisition cost per consumer) or competitors (e.g., competitive pricing audits) that is developed or collected by Personica independently or in connection with the Services as specified in an Order Form(s), which such information may include email open rates, effectiveness of offers, and offer redemption rates but is not Consumer Data (the “Value-Added Content”). As specified in an Order Form(s), Customer may contract to either: (a) receive access to and use of the Value-Added Content over the course of the term or (b) upon payment in full of certain additional Fees, receive a perpetual, non-exclusive, semi-transferable license to use the Value-Added Content for Customer’s internal business purposes, excepting any Personica Materials that may be incorporated into the Value-Added Content. To the extent Personica Materials are incorporated into the Value-Added Content and such incorporation is necessary for the Value-Added Content to function as intended then Personica will grant to Customer a perpetual, non-exclusive, royalty-free, non-transferable license to use those Personica Materials as incorporated into such Value-Added Content as delivered to Customer solely for its internal business purposes.
1.7 Services-Specific Terms. Any Services shall be provided in a professional and workmanlike manner consistent with similar online software-as-a-service providers. Customer is solely responsible for the configuration, installation, operation, and maintenance of the computers from which any Deliverables or Services are accessed, including, but not limited to the operating system, browser, e-mail software, and any other software, data or files, or back-up copies of such data. Unless we otherwise agree, the Services we provide are described in the Documentation and will be delivered in English. Fees for these Services are in addition to your Fees for other Personica Materials (g., Platform subscription). If you purchase Services that recur, they will be considered part of your subscription and will renew in accordance with your subscription. All Services are performed remotely unless you and we otherwise agree. For Services performed on-site, you will reimburse us our reasonable costs for all expenses incurred in connection with the Services. Any invoices or other requests for reimbursements will be due and payable within thirty (30) days of the date of the invoice. If there are a specific number of hours included in the Services purchased, those hours will expire as indicated in the applicable description, which expiration period will commence upon purchase (the “Expiration Period”). If there are Deliverables included in the Services purchased, it is estimated that those Deliverables will be completed within the time period indicated as the delivery period in the applicable description, which delivery period will commence upon purchase (the “Delivery Period”). If there is no Expiration Period or Delivery Period indicated, then it will be one hundred and eighty (180) days from purchase. If the Services provided are not complete at the end of the Delivery Period due to a Customer Failure, such Services will be deemed to be complete at the end of the Delivery Period. If the Services provided are not complete at the end of the Delivery Period due to our failure to make the necessary resources available to you or to perform our obligations, the Delivery Period will be extended to allow us to complete such Services. We may provide part or all elements of the Services through third-party service providers. Services are non-cancellable and all fees for Services are non-refundable. Personica is not responsible for any edit, change, modification, update to a Deliverable by Customer or a service provider other than Personica. If any such change or modification damages the design of the Deliverable or impairs the ability of the Deliverable to perform or function as intended, Personica shall upon a request by Customer provide an estimate to repair or restore the Deliverables at Personica’s then-current hourly rate.
1.8 Acquisition Offering. Customer may facilitate people-based marketing campaigns through the Personica Materials by leveraging select Non-Personica Applications (the “Acquisition Offering”). Specifically, through the Acquisition Offering, you can submit your Customer Materials for de-duping, look-alike modeling creation, segmentation generation, and other data enhancement features. The Non-Personica Applications can utilize and supplement Customer Materials in an aggregated, deidentified, anonymized, or individualized format consistent with applicable privacy policies and law.
2. YOUR USE OF THE PERSONICA MATERIALS.
2.1 Access to and Use of Personica Materials. We grant you and your Authorized Users a limited, non-exclusive, non-transferable right to access and use the Personica Materials for your internal business purposes in accordance with this Agreement and subject to the timely payment of any costs, fees, or charges (without any setoff, recoupment, deduction, debit, or withholding for any reason, unless such amount is subject to a good faith dispute) (the “Fees”).
2.2 Use Restrictions. You shall not, and shall not permit any other person to, access or use the Personica Materials in a manner inconsistent with the Agreement, including Section 9 to these Terms. If you become aware of any actual or threatened activity prohibited by or under this Section 2.2, you shall, and shall cause your Authorized Users to, without undue delay notify us of such activity and take reasonable and lawful measures asked of you by us to stop the activity or mitigate its effects.
2.3 Customer Cooperation & Control. Our ability to provide the Personica Materials is dependent upon your cooperation and control over the technical infrastructure you utilize to access and use the Personica Materials and your accuracy and completeness in the provision of the Customer Materials. We are not responsible – and we expressly disclaim any responsibility or liability – for your or your Authorized Users’ breach of this Section, including any delay or failure to perform caused by your delay in performing, or your failure to perform, any of your responsibilities under this Agreement (each, a “Customer Failure”).
2.3.1 You shall: (a) respond timely to any reasonable request to provide necessary direction, information, or authorization to enable us to perform our obligations under this Agreement, (b) make necessary personnel available to participate in any reasonably-noticed meeting, (c) provide Customer Materials in a complete, accurate, and technically usable format, and (d) inform your Authorized Users of this Agreement and remain liable for your Authorized Users’ compliance with this Agreement.
2.3.2 You are responsible for the: (a) quality and integrity of, and obtaining the required permission or consent to use your Customer Materials in association with the Personica Materials and in accordance with this Agreement and (b) access to, use and securing of your information technology infrastructure used to access or use the Personica Materials, including employing adequate physical, administrative, and technical safeguards to verify an Authorized User’s identity and authorization to access and use the Personica Materials.
2.4 Suspension. We may suspend your or your Authorized Users’ access to or use of a Platform, Developer Tool, Service, or other Personica Material if we reasonably determine that (a) you or any Authorized User has violated, are violating, or intend to violate any of the provisions contained in Section 2.2 of this Agreement; (b) subject to applicable law, you have ceased to continue your 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; (c) you are delinquent in your payment of Fees; or (d) the continued provision of one or more Personica Materials to you or any Authorized User is prohibited by or causes Personica to be liable under applicable law (each a “Service Suspension”). Where practicable, we shall use commercially reasonable efforts to: (x) provide you with notice and an opportunity to remedy such violation or threat prior to any such Service Suspension; (y) where practicable limit the Service Suspension based on the circumstances leading to the Service Suspension (g., to certain Authorized Users), and (z) provide updates regarding resumption of access to a Personica Material following any Service Suspension and resume such access as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Notwithstanding the foregoing, we will have no liability for any Losses, or any other consequences that you or your Authorized Users may incur because of a Service Suspension.
3. PROPRIETARY RIGHTS & LICENSES
3.1 Personica Materials. This is an Agreement for access to and use of the Personica Materials, and you are not granted a license to any software by this Agreement. The Personica Materials are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Personica Materials in whole or in part, by any means, except as expressly authorized in writing by us. Our trademarks include, but are not limited to, Personica and the logos or branding available on Personica.com (which we may update at any time without notice to you) and you may not use any of these without our prior written permission.
3.2 Usage Data. Personica may collect and compile information and data related to Customer or your Authorized Users’ use of the Personica Materials or the Personica Materials processing of Customer Materials or Enriched Materials (the “Usage Data”). Personica may refine, develop, augment, supplement, enhance or otherwise use Usage Data in (a) furthering, improving, or enhancing the Personica Materials for you or other customers, (b) detecting, preventing, and investigating security incidents, fraud, spam, or unlawful use of the Personica Materials, and (c) aggregated or anonymized data for benchmarking or marketing purposes.
3.3 Feedback. The more suggestions our Customers make, the better our products and services become. Please know that by submitting to us any feedback, suggestions, or contributions regarding the Personica Materials (the “Feedback”) you agree that: (a) we are not under any confidentiality obligation as to the Feedback, (b) we may use or disclose (or choose not to use or disclose) your Feedback for any purpose and in any manner, (c) we own the Feedback, and (d) to the extent required by applicable law, you grant to us (for yourself and all of your Authorized Users) an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to you or your Authorized Users.
3.4 Personica Trademark Use. Unless you have our express prior written permission, you may not use any name, logo, tagline or other mark of ours or the Personica Materials, or any identifier or tag generated by the Personica Materials. If permitted to use our trademarks, you will not: (a) use our trademarks in a misleading or disparaging way; (b) use our trademarks in a way that implies we endorse, sponsor, or approve of your services or products (unless authorized by us in writing or in another agreement); or (c) use our trademarks in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.
3.5 Customer Materials. You own and retain all rights to the Customer Materials. Prior to the expiration or termination of this Agreement, we recommend you export any Customer Materials from the Personica Materials. Otherwise, you make a written request within thirty (30) days after termination or expiration of this Agreement, and we will provide you with temporary access to the Personica Materials to retrieve, or we will provide you with copies of, all Customer Materials then in our possession or control. If we provide you with temporary access, we may charge a re-activation fee. Thirty (30) days after termination or expiration of this Agreement, we will have no obligation to maintain or provide you the Customer Materials.
4. CONFIDENTIALITY. From time to time during the term of this Agreement, you or we (as the “Disclosing Party“) may disclose or make available to the other party (as the “Receiving Party“) information about its business affairs, products/services, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information (collectively, “Confidential Information“). Confidential Information shall not include information that, at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 4 by the Receiving Party; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party before being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use, in whole or in part, of any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed under applicable federal, state or local law, regulation, or a valid order issued by a court or governmental agency of competent jurisdiction. The Receiving Party shall: (i) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any person or entity, except to the individuals who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement. The Receiving Party shall be responsible for any breach of this Section 4 caused by any person to whom it disclosed Confidential Information.
5. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
5.1 By Customer. You represent and warrant that you have provided (and will continue to provide) adequate notices and have obtained (and will continue to obtain) the necessary permissions and consents to provide Customer Materials to us: (a) to fulfill our obligations and rights under this Agreement, including Section 1.3.2 (collectively, “Processing”) and (b) so that our Processing of Customer Materials does not and will not infringe, misappropriate, or otherwise violate any third-party intellectual property rights, or any privacy or other rights or violate any applicable law.
5.2 By Personica. We represent and warrant that: (a) Section 1.3.3 of this Agreement accurately describes the Security Measures and we will not materially decrease the Security Measures and (b) the Personica Materials will perform materially in accordance with applicable Documentation. For any breach of Section 5.2, Customer’s exclusive remedy and Personica’s sole liability and obligation is, at Customer’s option (x) correction or reperformance of the nonconforming Personica Material or (y) a pro rata refund to you of any Fees actually paid for the nonconforming Personica Materials.
5.3 EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PERSONICA MATERIALS ARE PROVIDED AS-IS AND AS-AVAILABLE AND NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6. MUTUAL INDEMNIFICATION.
6.1 General. The party seeking indemnification hereunder (“Indemnified Party”): (a) shall promptly notify the party from whom indemnification is sought (the “Indemnifying Party”) in writing of any third-party losses (collectively, a “Claim”); provided, however, that the failure to give such prompt notice of a Claim shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party was actually and materially prejudiced by such failure, (b) will reasonably cooperate with the Indemnifying Party in connection with the Indemnifying Party’s activities hereunder, at the Indemnifying Party’s expense, and (c) may, at its own expense, participate in the defense of a Claim. An Indemnifying Party will have the sole and exclusive authority to defend or settle any such Claim; however, neither the Indemnifying Party nor an Indemnified Party may settle any Claim under this Agreement where such settlement includes: (x) an admission of liability or fault on behalf of the other party or (y) the creation of any obligation or imposes an act or forbearance (including injunctive or other equitable relief) on the other party, without the other party’s prior written consent.
6.2 Personica Indemnification. We shall indemnify you and your officers, directors, employees, successors, and permitted assigns (each, a “Customer Indemnitee”) from and against any Claim (other than a Claim brought by an Affiliate of a Customer Indemnitee) (a “Customer Indemnity Claim”) to the extent it arises out of allegations that your use of the Personica Materials in accordance with this Agreement infringes or misappropriates a third-party’s United States’ intellectual property right. Upon receipt of information about such a Claim, Personica may in our discretion and at no cost to you: (a) procure for you the right to continue to use the allegedly infringing Personica Material, (b) modify or replace the allegedly infringing Personica Material so that it no longer infringes but remains functionally equivalent, or (c) terminate the Agreement as to any allegedly infringing Personica Material and issue you a refund for the Fees paid as to the same for the remainder of the relevant term starting with the date you lost use of the Personica Material due to the Claim. The above indemnification obligation does not apply if you: (x) use of the Personica Materials is in combination with data, software, applications, hardware, equipment, products, services, or other technology where the Personica Materials would not by themselves, and without modification, be infringing or (y) fail to use the Personica Materials in accordance with the then-applicable Documentation. THIS SECTION 6.2 SETS FORTH CUSTOMER INDEMNITEE’S SOLE AND EXCLUSIVE REMEDY AND PERSONICA’S SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION THAT THE PERSONICA MATERIALS INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHT.
6.3 Customer Indemnification. Customer shall indemnify Personica and its officers, directors, employees, successors, and assigns (each, a “Personica Indemnitee”) from and against any Claim (other than a Claim brought by an Affiliate of a Personica Indemnitee) (a “Personica Indemnity Claim”) to the extent it arises out of or results from, or is alleged to arise out of or result from allegations that the Processing of Customer Materials in accordance with this Agreement infringes or misappropriates a third-party’s intellectual property or privacy right, or otherwise violates applicable law.
7. LIMITATIONS OF LIABILITY.
7.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL PERSONICA BE LIABLE TO CUSTOMER, ITS AFFILIATES, OR THEIR RESPECTIVE INDEMNITEES OR AUTHORIZED USERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE, (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE PERSONICA MATERIALS, OR (C) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
7.2 LIMITATION OF LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF PERSONICA TO CUSTOMER, ITS AFFILIATES, OR THEIR RESPECTIVE INDEMNITEES OR AUTHORIZED USERS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PERSONICA MATERIALS, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT PAID TO PERSONICA IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
7.3 IF REMEDY FAILS ESSENTIAL PURPOSE. THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS AGREEMENT SHALL APPLY EVEN IF A NON-BREACHING PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE PARTIES ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 7, THAT THE SAME REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS), AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
7.4 Payment Adjustments for Other Proceeds. Any monetary obligation by us to you under Section 1.3, Section 5.2, or Section 6.2 of this Agreement (“Loss”) is limited to the amount of any Loss that remains after deducting therefrom any insurance proceeds and/or any indemnity, contribution, or other payment received by you or paid on your behalf from a party other than Personica or a Personica Indemnitee in respect of any such Loss.
8. TERM AND TERMINATION.
8.1 This Agreement will begin on the effective date and continue for the period as outlined on the Order Form (the “Initial Term”).
8.2 This Agreement will automatically renew for successive additional terms of the same length to the Initial Term (each a “Renewal Term”) unless earlier terminated pursuant to this Agreement or either party gives the other party written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current term. For applicable subscription-based Personica Materials, the Fees for any Renewal Term shall be at the then-current Fees as of the first day of the applicable Renewal Term or as reasonably determined by Personica but not exceeding an amount equal to a five percent (5%) annualized increase over the Fees charged for such Personica Materials on the effective date of the preceding term.
8.3 Termination for Cause. 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 is incapable of cure or being capable of cure, remains uncured sixty (60) days after the non-breaching party provides the breaching party with written notice of such breach.
8.4 Local Offering. Personica can tailor a Platform for use by independent restaurants, including incorporating one or more of the Personica Materials or portions thereof that are unique to the client (a “Local Offering”). The Order Form shall state the initial term for a Local Offering, and, upon completion, the Agreement shall renew for successive terms of thirty (30) days, unless otherwise stated on the Order Form. Either party may cancel the agreement, for any or no reason, by providing at least thirty (30) days written notice to the other party prior to the beginning of a renewal term. Customers are pre-billed for the Fees for a Local Offering and such pre-paid Fees are non-refundable.
8.5 Surviving Sections. This Section 8.5 and Section 1.3.2, Section 2.2, Sections 3.1-3.3, Section 4, Section 5, Section 6, Section 7, Section 9, and Section 10 of this Agreement shall survive the expiration or termination of this Agreement.
9. ACCEPTABLE USE OF PERSONICA MATERIALS.
9.1 The following acceptable and prohibited uses apply to Customer and its Authorized Users access to and use of one or more Personica Materials. This Section is intended to ensure compliance with the applicable laws and regulations that may apply to the Personica Materials and to protect our interests, goodwill and reputation as well as the interests, goodwill, and reputation of our customers and their customers.
9.2 Acceptable and Prohibited Uses. You will use the Personica Materials in accordance with this Agreement and the then-applicable Documentation for your internal business purposes only. In addition to the other provisions in the Agreement governing your access to and use of the Personica Materials, neither you nor your Authorized Users shall:
9.2.1 Willfully tamper with, probe, or breach the security or authentication measures of the Personica Materials or another customer or authorized user accounts.
9.2.2 Access any user account or content on or using the Personica Materials not intended for you.
9.2.3 Willfully render the Personica Materials (or any part thereof) unusable.
9.2.4 Commercially exploit or make available the Personica Materials to a third party other than as contemplated in the Agreement.
9.2.5 Attempt to reverse engineer or otherwise attempt to derive or gain access to the source code of the Personica Materials.
9.2.6 Access, copy, or use the Personica Materials (or any portion thereof) for the purpose of building a competitive product or derivative works.
9.2.7 Remove or alter any proprietary notices from the Personica Materials.
9.2.8 Upload or transmit any content that you knowingly contain viruses, malware, or other malicious computer code that may damage the Personica Materials
9.2.9 Launch or facilitate, whether intentionally or unintentionally, a denial-of-service attack (or similar conduct) that adversely impacts the availability, reliability, or stability of the Personica Materials.
9.2.10 Use the Personica Materials to violate the usage standards or rules of an ISP, ESP, or news or user group.
9.2.11 Store, post, or transmit content that is: (a) threatening, abusive, defamatory, obscene, deceptive, fraudulent, invasive of another’s privacy or otherwise violates another’s legal rights (such as rights of privacy and publicity), (b) protected by intellectual property laws (or by rights of privacy or publicity) without the rights to do so, (c) hate speech or discriminatory based on any characteristic protected by law (g., race, religion, gender), or (d) Protected Health Information as defined by the Health Insurance Portability and Accountability Act of 1996 as amended, unless Customer has signed a Business Associate Agreement with Personica or Customer’s use of the Personica Materials fits within the “conduit” or some other exception for requiring a Business Associate Agreement.
9.2.12 Use the Personica Materials in violation of any applicable local, state, national or international law or regulation, including all export laws and regulations and without limitation the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act) (15 U.S.C. § 7701 et seq.), the US Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227), the Do-Not-Call Implementation Act of 2003 (15 U.S.C. § 6152 et seq.; originally codified at § 6101 note), the General Data Protection Regulation (2016/679), the Directive 2000/31/EC of the European Parliament and Council of 8 June 2000, on certain legal aspects of information society services, in particular, electronic commerce in the Internal Market (‘Directive on Electronic Commerce’), along with the Directive 2002/58/EC of the European Parliament and Council of 12 July 2002, concerning the processing of personal data and the protection of privacy in the electronic communications sector (‘Directive on Privacy and Electronic Communications’), regulations promulgated by the U.S. Securities Exchange Commission or any rules of national or other securities exchange, including without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, or the Personal Data Protection and Electronic Documents Act (PIPEDA) (S.C. 2000, c. 5), Canada’s Anti-Spam Legislation (CASL) (S.C. 2010, c. 23), and any regulations having the force of law or laws in force in your or your email or text message recipient’s country of residence.
9.3 Email Practices. Without limiting the generality of Section 9.2 and excluding transactional emails (g., password reset notification) to extent allowable by applicable law, your email marketing practices may not use the Personica Materials or involve transmission of emails: (a) to an address obtained via internet harvesting methods or any surreptitious methods (e.g., scraping or harvesting), (b) containing header information that is false or misleading, (c) lacking an advisement that alerts and instructs the recipient how they may unsubscribe or opt-out of receiving further marketing or commercial emails from you, (d) intended to impermissibly access or adversely impact the operation, privacy, or security of another’s property (e.g., hacking, spoofing, denial of service, mailbombing and/or sending any email that contains or transmits any malware), or (e) that causes or may cause the “blacklisting” of any Personica IP address or domain.
9.4 Telephone Marketing Practices. Without limiting the generality of Section 9.2, you: (a) must comply with (i) all laws relating to telephone marketing, including without limitation those specifically referenced in Section 1 and (ii) all applicable industry standards, including those applicable guidelines published by the U.S. Tier 1 telecommunications mobile network operators, the CTIA, and the Mobile Marketing Association and (b) must obtain and preserve tangible proof of prior express written consent or prior express consent (as required by applicable law) for any mobile subscriber you wish to include in your Customer Materials.
9.5 Customer Material Collection Guidelines. In addition to Section 2.3, you shall ensure that only individuals who have provided the appropriate and requisite legal consent or permission to receive marketing or other communication from you (“Opt-In”) using the Personica Materials are contacted. You acknowledge that you have consulted appropriate and knowledgeable legal or compliance guidance in determining and implementing any required or advisable policies or protocols to effectuate a legally compliant and enforceable Opt-In and other requirements under this Section 9.5. In addition to obtaining an Opt-In, you should follow industry best practices in your marketing methods, including only contacting individuals you have recently expressed interest in receiving your marketing communications (g., only message individuals with Opt-In or recent communications with you within the 6 months of message). Also, you may not import, or use purchased, rented, or other commercial third-party contact lists where the Opt-In cannot be confirmed. Personica reserves the right to request and inspect any or all materials, methods or evidence used in obtaining or verifying an Opt-In, but such exercise does not relieve you of any liability for an invalid or legally deficient Opt-In.
10.1 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement creates any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
10.2 No Third-Party Beneficiaries. Except as set forth in this Section, the parties do not confer any rights or remedies upon any Person other than the parties to this Agreement and their respective successors and permitted assigns. However, the parties hereby designate “indemnitees” as third-party beneficiaries of Section 6 and Section 7 of this Agreement having the right to enforce Section 6 and Section 7.
10.3 Notices. All notices, requests, 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 most recent Order Form by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid).
10.4 Interpretation. The parties intend that the construing of this Agreement is without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument.
10.5 Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, an Order Form, and any other documents incorporated herein by reference, unless such inconsistency is expressly acknowledged as intended in a document, the following order of precedence governs: (a) first, this Agreement, (b) second, the Order Form, and (c) third, the incorporated document (g., Data Processing Agreement).
10.6 Assignment and Delegation. Neither party shall assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that either party may assign its rights or delegate its obligations, in whole, without such consent, to an entity that acquires all or substantially all of the business or assets of such party to which the Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise. Any assignment or delegation in violation of this Section shall be invalid. No assignmentor delegation shall relieve the assigning or delegating party of any of its obligations hereunder unless the non-assigning or non-delegating party agree to a novation releasing the assigning or delegating party of its obligation under this Agreement.
10.7 Force Majeure. In no event shall Personica be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any of the following events (each a “Force Majeure Event”): flood, fire, earthquake, pandemic, explosion, war, terrorism, cyber terrorism or other comparable criminal or willful act, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns, Personica’s suppliers failure to supply necessary goods or services to Personica, passage of applicable law, any action taken by a government authority or other public authority (such as imposing an embargo), or international, national, or regional shortage of adequate power or telecommunications or transportation. In allocating the risk of delay or failure of performance of their respective obligations under this Agreement, the parties have not considered the possible occurrence of any of the events listed herein or any similar or dissimilar events beyond their control, irrespective of whether such listed, similar or dissimilar events were foreseeable as of the date of this Agreement.
10.9 Waiver. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving, including any time of the essence provisions as to a party’s obligations. Except as otherwise set forth in this Agreement, (a) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (b) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
10.10 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 affect 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.
10.11 Governing Law, Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Virginia (USA) 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 Commonwealth of Virginia (USA), including the application of the Contracts (Rights of Third Parties) Act 1999 (UK), Uniform Computer Information Transactions Act (or any jurisdictions adoption of such), or the UN Convention on Contracts for the International Sale of Goods. Any action arising out of or related to this Agreement or the Personica Materials will be instituted exclusively in the federal courts of the United States District Court for the Eastern District of Virginia or the courts of the City of Alexandria, Virginia (USA), and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
10.12 Good Faith Negotiations, In the event of any dispute between the parties with respect to this Agreement or the Personica Materials, prior to instituting any legal action, the parties shall first use their best efforts to resolve such dispute among themselves. If the parties are unable to resolve the dispute within thirty (30) calendar days after the commencement of efforts to resolve the dispute, either party may submit the dispute to an appropriate court.
10.13 WAIVER OF JURY TRIAL. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THE TERMS OR THE TRANSACTIONS CONTEMPLATED THEREIN.
10.14 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Sections 2.2, 3.1, 3.2, 3.3, or 4 would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and 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 bond 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 applicable law, in equity, or otherwise unless provided otherwise in this Agreement.
10.15 Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
10.16 Electronic Signatures. Any signature (including any electronic symbol or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record) hereto or to any other certificate, agreement or document related to this transaction, and any contract formation or record-keeping through electronic means shall have the same legal validity and enforceability as a manually executed signature or use of a paper-based recordkeeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any similar state law based on the Uniform Electronic Transactions Act, and the parties hereby waive any objection to the contrary.
10.17 Export Controls. Customer will not download or otherwise export or re-export the Personica Materials or underlying information or technology in violation of the laws and regulations of the United States or other applicable jurisdictions.
10.18 Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that Personica may use Customer’s name and other indicia in its “customer list” in promotional and marketing materials.
10.19 Personica Efforts. As to Personica, where used in this Agreement “commercially reasonable effort(s)” shall mean the ordinary and reasonable measures that a prudent person under similar circumstances desiring to achieve a particular result would use to achieve that result knowing that their exercise of such efforts does not guarantee achieving the particular result; however, commercially reasonable effort(s) does not require Personica to take every conceivable measure or to take any measures that sacrifices Personica’s economic and business interests (g., incur substantial losses to perform, insolvency) or causes Personica to suffer any unreasonable and disproportionate detriment compared to Personica’s expected benefits under this Agreement.
10.20 Late Charges. On any outstanding Fees, Personica may impose interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law and shall be entitled to recover from Customer all costs (including reasonable attorneys’ fees) incurred by Personica in collecting any past due payment or interest.
10.21 Taxes. All Fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You agree to pay any Taxes applicable to your use of the Personica Materials. If Personica has the legal obligation to pay or collect Taxes for which Customer is responsible under this Agreement, then Personica will invoice Customer and Customer will pay that amount unless Customer provides Personica with a valid tax exemption certificate authorized by the appropriate taxing authority.
10.22 Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
10.23 Non-recruitment. During the term and for a period of one (1) year after expiration or termination of this Agreement, neither you nor we shall specifically solicit the other party’s employees to leave the employ of the other party. However, the posting of generic advertisement soliciting applications for employment shall not violate this Section 10.23.