[et_pb_section bb_built=”1″ _builder_version=”3.0.71″ background_color=”#ffffff” module_class=”text legal”][et_pb_row][et_pb_column type=”4_4″][et_pb_text _builder_version=”3.0.71″ background_layout=”light” text_orientation=”left” text_text_color=”#000000″ border_style=”solid”]
The Customer Agreement (“Agreement”) is between the relevant Plutora contracting entity in Section 22 (“Plutora”) and you (“Customer” or “you”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “Customer”or “you” means your company, and you are binding your company to this Agreement. Each of Plutora and Customer is a “Party” and together “Parties.”
By clicking on the “I agree” (or similar button) that is presented to you at the time of your Order, or by using or accessing Plutora products, you indicate your assent to be bound by this Agreement.
This Agreement governs your initial purchase as well as any future purchase made by you that reference this Agreement. This Agreement governs Plutora’s Hosted Solutions, as defined in the Definitions below.
1. DEFINITIONS. In addition to the capitalized terms defined throughout the Agreement, the following defined terms will have the following meanings:
1.1. “Authorized User” means only the specific individuals for whom Customer has paid the required fees and whom Customer designates to access the Hosted Solutions.
1.2. “Capacity” means the amount of access to the Hosted Solutions purchased as specified in an Order Form, which is counted in accordance with the unit of measure described in the Order Form.
1.3. “Customer Data” means any content, data, and other information in any form or media provided by Authorized Users or Customer when accessing the Hosted Solutions.
1.4. “Hosted Solutions” means hosted solutions provided by Plutora as designated in an Order Form.
1.5. “Initial Term” means the initial term specified on the Order Form.
1.6. “Order Form” means any Order Form or Supplemental Order Form executed by the Parties.
1.7. “Term” is defined in Section 7.1.
1.8. “User Account” means an account created within the Hosted Solutions in order for an Authorized User to access the Hosted Solutions. Each User Account is associated with a specific individual as identified by a unique email address within Customer’s email domain.
1.9. “User Guide” means the online documentation for the Hosted Solutions, which includes functional guides and technical specifications, as updated by Plutora from time to time.
1.10. “Location” means Customer’s shipping or physical address.
2. HOSTED SOLUTIONS.
2.1. Customer will pay for the Hosted Solutions. All Hosted Solutions will be provided to Customer in accordance with the Agreement. Plutora has not agreed to provide any Hosted Solutions other than those that are clearly identified in an Order Form.
2.2. Subject to the terms, conditions and limitations set forth in the Agreement, Plutora grants Customer a limited, non-exclusive, non-transferrable, non-sublicensable right for Authorized Users to access and use the Hosted Solutions during the Term solely for Customer’s own business purposes as permitted by this Customer Agreement and the User Guide, and up to the amount of Capacity purchased under Order Forms.
2.3. The Customer contact specified in the Order Form has been assigned by Customer as the Customer contact for operational issues that may arise. Customer will notify Plutora of any change to Customer contact details in writing, which may include via email.
2.4. Customer acknowledges and agrees that Plutora may use subcontractors to provide portions of the Hosted Solutions.
3.1. Customer must not use the Hosted Solutions in any manner that is not described in the User Guide, an Order Form or this Agreement, and must not license, sell, rent, lease, lend, transfer, outsource, act as a service bureau or a provider of a time sharing service for, or otherwise provide access to the Hosted Solutions for the benefit of any affiliate or any third party. Customer may not use the Hosted Solutions in any manner that Plutora reasonably believes is abusive or that is contrary to applicable law. Specifically, Customer must not use the Hosted Solutions in any manner that would violate the U.S. economic sanctions administered by the Office of Foreign Assets Control, U.S. Department of the Treasury, including by using the Hosted Solutions to facilitate a project where the benefit is received in a sanctioned country or by a sanctioned government, person or entity, wherever located. For clarity, Customer is solely responsible for compliance related to the manner in which Customer chooses to use the Hosted Solutions, including transfer and processing of Customer Data and the provision of Customer Data to Authorized Users.
3.2. Customer is responsible for the acts and omissions of Authorized Users as if they were the acts and omissions of Customer.
3.3. Customer will not remove, obscure, or alter Plutora’s copyright notices, trademarks, or other proprietary rights notices on the Hosted Solutions.
3.4. As between Customer and Plutora, Plutora, owns and retains all right, title and interest in and to the Hosted Solutions and software, programming, documentation, templates, questionnaires, methodologies, models, charts, specifications, reports, and any other intellectual property or items embodied in or used to deliver the Hosted Solutions or made available to Customer as a result of the Hosted Solutions. The Hosted Solutions are protected by applicable copyright, trade secret, industrial and other intellectual property laws and rights under such laws. Except for the limited licenses granted under Sections 2.2, no other rights are granted to the Hosted Solutions or any improvements, design contributions, or derivative works, by implication, estoppel or otherwise. For the avoidance of doubt, Plutora reserves any rights not expressly granted to Customer.
3.5. When using the Hosted Solutions, Customer must not and will ensure that Authorized Users do not: (a) except as permitted by applicable law, decompile, decipher, disassemble, translate, modify, prepare derivative works of, reverse engineer or otherwise attempt to access the source code of the Hosted Solutions; (b) upload any Customer Data to the Hosted Solutions or otherwise provide any content, data or information to Plutora that contains viruses or malicious code or is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy or right of publicity, hateful, or racially, ethnically or otherwise objectionable; (c) infringe the intellectual property rights of any third party; (d) interfere with or disrupt the Hosted Solutions, Plutora or any third party systems used to host the Hosted Solutions, or other equipment or networks used to provide the Hosted Solutions; (e) provide, or make available, any links, hypertext (Universal Resource Locator (URL) address) or otherwise (other than a “bookmark” from a Web browser) to the Hosted Solutions, or any part thereof; (f) circumvent the user authentication or security of the Hosted Solutions or any host, network, or account related thereto; (g) use any application programming interface to access the Hosted Solutions; (h) copy or otherwise duplicate the Hosted Solutions except as expressly permitted under the Agreement; (i) make any use of the Hosted Solutions that violates any applicable local, state, national, international or foreign law including U.S. and E.U. export regulations and restrictions; (j) fail to use commercially reasonable efforts to prevent the unauthorized license, access, sale, transfer, lease, transmission, distribution or other disclosure of the Hosted Solutions; or (k) allow any individual to use any User Account log-in credentials (e.g., User identification(s), code(s), password(s), procedure(s) and User keys) issued to, or selected by, Customer for someone other than the individual identified in the User Account information. If any Customer affiliate(s) receives any of the Hosted Solutions from Plutora, Customer will be responsible for any act or omission of its affiliate(s) with respect to any obligation of Customer in the Agreement as if that action or inaction was Customer’s action or inaction.
3.6. If Customer believes that any person or entity (including Authorized Users or other employees, agents, or contractors of Customer) is taking or threatens to take any action (or inaction) that would violate any of the provisions in the Agreement, Customer will immediately notify Plutora of that action (or inaction) and Plutora may take action to prevent the violation including suspending Customer’s access to the Hosted Solutions. Customer agrees to cooperate in all ways requested by Plutora to protect the Hosted Solutions, and Plutora’s copyright, patent, or trade secret and other intellectual property and proprietary rights in and to the Hosted Solutions.
3.7. Plutora may change or modify the Hosted Solutions at any time. Plutora will only be required to notify Customer of a change or modification to the Hosted Solutions in advance if the change or modification is material and does not extend or enhance the functionalities or architecture of the Hosted Solutions. If Plutora notifies Customer of a change as required in this Section and Customer does not wish to use the Hosted Solutions after notification of the change, Customer may, within 30 days of notification, provide Plutora with written notice that it rejects the change. If Customer rejects a change, Plutora may, in its sole discretion, choose to continue to offer Customer the Hosted Solutions without the change or terminate the Agreement on 30 days’ written notice. If Customer provides no written notice to Plutora within the 30 day period, Customer will be deemed to have accepted the change and the Agreement will continue in full force and effect. Upon termination, Customer’s exclusive remedy and Plutora’s sole liability is to refund any prepaid and unused fees from the effective date of the termination of the Hosted Solutions. Nothing in this Section requires Plutora to continue to provide any portion of the Hosted Solutions if it would result in Plutora violating the rights of any third party or any applicable law.
4. CUSTOMER DATA AND SECURITY AND BACKUP.
4.2. Plutora is not responsible for the transfer of any data, including Customer Data, over telecommunications facilities, including the Internet. Plutora does not warrant secure operation of the Hosted Solutions or that security technologies will be able to prevent disruption to any Hosted Solutions.
4.3. Customer acknowledges that the Hosted Solutions are not intended to be used for purposes of archiving or backing-up Customer Data and Customer will not use the Hosted Solutions for those purposes. If Customer notifies Plutora that it is unable to access Customer Data within the Hosted Solutions and Plutora discerns, in its sole discretion, that the data was corrupted or deleted from the Hosted Solutions by an error within the Hosted Solution, Plutora will follow its standard process to attempt to restore from Plutora’s archive which is maintained by Plutora in accordance with its then current back-up policy.
5. CUSTOMER RESPONSIBILITIES AND OBLIGATIONS
5.1. Customer agrees to provide Plutora with reasonable access to Customer materials, personnel, equipment or facilities to the extent such access is necessary for Plutora to provide or perform the Hosted Solutions. Customer hereby grants Plutora a limited right to use any Customer materials provided to Plutora in connection with the Hosted Solutions (the “Customer Materials“) solely for the purpose of providing and performing the Hosted Solutions to or for Customer. Customer owns and will retain ownership (including all intellectual property rights) in and to the Customer Materials.
5.2. By making available Customer Data for use in connection with the Hosted Solutions, Customer warrants that it has all rights, licenses and consents necessary to provide the Customer Data to Plutora for use in connection with, and for the purposes contemplated by, the Hosted Solutions (including any consents required by applicable regulation, rules or other laws (collectively the “Data Protection Legislation”).
5.3. Customer represents and warrants that (a) it has obtained all rights to use systems, software or any other tangible or intangible property owned by persons or entities other than Customer necessary for Customer to access and use the Hosted Solutions; (b) it will maintain confidentiality of User log-in credentials (e.g., User identification(s), code(s), password(s), procedure(s) and User keys); (c) Customer Data is free of all viruses, Trojan horses, and other elements which could interrupt or harm the systems or software used by Plutora or its contractors to provide the Hosted Solutions; and (d) Customer, Authorized Users, and all Customer Data will comply with all applicable laws, rules, and regulations and also with all applicable security guidelines and procedures made known to Customer by Plutora through the Hosted Solutions or otherwise. Customer will and will require Authorized Users to change all passwords used to access the Hosted Solutions at regular intervals. If Customer believes a third party may have obtained knowledge of an Authorized User’s password, Customer will notify Plutora immediately and promptly change the password.
5.4. During the term of this Agreement, Customer will not solicit for employment any employees of Plutora or its affiliates who, within six months prior to such solicitation, directly performed Hosted Solutions under this Agreement.
6. PAYMENT TERMS
6.1. Customer will pay for all fees for the Hosted Solutions in accordance with the Agreement. Customer will pay all invoices within 30 days after the date of the invoice. Unless stated otherwise in an Order Form, payments will be invoiced and made in United States Dollars. Customer will not have any right to withhold or reduce fees under the Agreement or set off any amount against fees owed. Except as set forth in Section 3.7 and Section 8, all paid fees are non-refundable.
6.2. Plutora will be entitled to increase the fees for any Hosted Solutions at the start of each Renewal Period.
6.3. Fees and other charges described in the Agreement, or in any of Plutora’s list of prices, do not include federal, state or local sales, foreign withholding, use, property, excise, service, or similar taxes (including any sales or value added taxes) (“Taxes”) now or hereafter levied, all of which are Customer’s responsibility. Plutora, however, will be responsible for all taxes based upon its net income. With respect to state/local sales tax, Customer’s direct pay permits or valid tax-exempt certificates must be provided to Plutora prior to the execution of the Agreement. If Plutora is required to pay Taxes, Customer will reimburse Plutora for those amounts. Customer hereby agrees to indemnify Plutora for any Taxes and related costs, interest, and penalties paid or payable by Plutora.
7. TERM AND TERMINATION
7.1. Unless terminated earlier pursuant to the Agreement, the Initial Term of the Agreement will commence on the Order Form Effective Date and will continue until the end of the Initial Term, at which time it will automatically renew for additional consecutive periods of 12 months (each a “Renewal Term”), unless either Party provides written notice to the other Party at least 60 days prior to the end of the then-current term of its intent not to renew. Collectively the Initial Term and Renewal Term(s) (if any) constitute the “Term”.
7.2. Either Party may terminate the Agreement: (a) upon not less than 30 days prior written notice to the other Party of any material breach of the Agreement by the other Party, provided that the breaching Party has not cured the breach within the 30-day notice period.
7.3. Customer agrees that Plutora may monitor the Hosted Solutions. If Customer exceeds the Capacity it has purchased, Plutora may invoice Customer and Customer will immediately pay for the excess Capacity at Plutora’s standard rates. If Plutora determines that Customer has breached any terms of this Agreement, including exceeding the Capacity purchased by Customer, in addition to Plutora’s other remedies available at law or in equity, Plutora may suspend Customer’s access to the Hosted Solutions until the breach is remedied to Plutora’s reasonable satisfaction. In addition, Plutora may also suspend access if Plutora receives notice from Customer under Section 3.7, or Plutora determines (in its sole discretion) that continued use of the Hosted Solutions may result in harm to the Hosted Solutions, Plutora’s or third party systems or other Plutora customers, or result in a violation of applicable law, regulation, legal obligation or legal rights of another. Plutora’s right to suspend includes the right to remove any potentially offending Customer Data from the Hosted Solutions, deactivate Customer’s user name(s) and password(s) and/or limit or restrict access to the Hosted Solutions. Plutora’s exercise of its rights under this Section does not limit or otherwise impair any of Plutora’s rights, including the right to terminate the Agreement.
7.4. Customer remains liable for all fees that have been invoiced and all Hosted Solutions provided or performed as of the termination date of the Agreement. If the Agreement was terminated by Plutora pursuant to Sections 7.2, Customer will pay Plutora all of the fees that Customer would have paid for the remainder of the Initial Term or then current Renewal Term (whichever is applicable) and Plutora may invoice Customer for those fees immediately upon termination.
7.5. Upon the effective date of termination, all licenses will terminate and Customer will have no right to access the Hosted Solutions and Plutora may terminate Customer’s access to the Hosted Solutions. Except as permitted under Section 3, and subject to any requirements of the Data Protection Legislation, for a period of 30 days after the effective date of termination of the Agreement, Plutora will not take any action to intentionally erase any of Customer Data stored on the Hosted Solutions, and Customer may retrieve Customer Data from the Hosted Solutions; provided, that: (a) Customer pays Plutora for the cost of access and media used to deliver the Customer Data to Customer and any other amounts due to Plutora; and (b) Plutora did not terminate the Agreement pursuant to Section 7.2. Any additional post-termination assistance from Plutora is subject to the mutual agreement of the Parties including Customer’s agreement to pay all of Plutora’s applicable fees. Except as provided in this Section 7.5, Plutora will have no obligation to continue to store or permit Customer to retrieve any Customer Data following any termination of the Agreement.
7.6. Sections 1, 3, 4.2, 5.2, 5.3, 6, 7.3-7.6, 8-11, and 12-23 will survive the expiration or termination of the Agreement.
8. WARRANTIES AND DISCLAIMERS.
8.1. Each Party represents and warrants to the other Party as follows: (a) it has the full power and authority to enter into this Agreement; (b) its execution and performance of this Agreement have been duly authorized by all necessary corporate action on behalf of that Party; and (c) the person signing this Agreement on behalf of that Party has the full authority to do so.
8.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE HOSTED SOLUTIONS ARE PROVIDED AS IS, AS AVAILABLE, AND WITH ALL FAULTS, AND PLUTORA AND ITS AFFILIATES HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OR CONDITION OF NON-INFRINGEMENT WITH REGARD TO THE HOSTED SOLUTIONS, LACK OF VIRUSES OR BUGS, ACCURACY OR COMPLETENESS OF RESULTS. IN PARTICULAR, PLUTORA DOES NOT WARRANT THAT THE OPERATION OF THE HOSTED SOLUTIONS WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK ARISING OUT OF THE USE, PERFORMANCE OR QUALITY OF THE HOSTED SOLUTIONS (INCLUDING THE SOFTWARE) AND DOCUMENTATION REMAINS WITH CUSTOMER.
9. INDEMNIFICATION BY PLUTORA
9.1. Plutora will defend Customer against claims brought against Customer by any third party alleging that Customer’s use of the Hosted Solutions or Deliverables, in accordance with the terms and conditions of the Agreement, constitutes a direct infringement or misappropriation of any United States issued patent or registered copyright, and Plutora will pay damages finally awarded by a court of competent jurisdiction against Customer (or the amount of any settlement Plutora enters into) with respect to those claims. This obligation of Plutora will not apply if the alleged infringement or misappropriation results from (a) use of the Hosted Solutions in combination with any other hardware, software or service, (b) use of the Hosted Solutions in any manner not authorized by the Agreement, (c) Customer Data, (d) any modifications made to the Hosted Solutions, or (e) Plutora’s compliance with specifications or requests provided by Customer.
9.2. This obligation of Plutora under Section 9.1 also will not apply if Customer fails to timely notify Plutora in writing of any claim. Plutora will be permitted to control fully the investigation, defense and any settlement of any claim. If Customer declines Plutora’s proffered defense, or otherwise fails to cede full control of the defense to Plutora’s designated counsel, then Customer waives Plutora’s obligations under this Section 9. Customer will cooperate fully in the defense of claims, including providing Plutora a copy of the claim and all relevant evidence in Customer’s possession, custody or control. If customer fails to cooperate fully in the defense of claims, then Customer waives Plutora’s obligations under this Section 9. Customer may appear, at its own expense, through counsel reasonably acceptable to Plutora. Plutora expressly reserves the right to cease defense of any claim(s) if the Hosted Solutions are no longer alleged to infringe or misappropriate, or are held not to infringe or misappropriate, the third party’s rights.
9.3. Plutora may settle any claim on a basis requiring Plutora to substitute for the Hosted Solutions or Deliverables alternative substantially equivalent non-infringing services. Customer will not undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation of the Hosted Solutions or Deliverables that is prejudicial to Plutora’s rights. If any Hosted Solutions becomes, or in Plutora’s opinion is likely to become, the subject of an infringement claim, Plutora may, at its option, (a) procure for Customer the right to continue using the Hosted Solution or Deliverable; (b) modify the Hosted Solution or Deliverable so that it becomes non-infringing; or (c) terminate this Agreement and refund any prepaid but unused fees for the Hosted Solution or Deliverable.
9.4. THE PROVISIONS OF THIS SECTION 9 STATE THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF PLUTORA AND ITS LICENSORS TO CUSTOMER, AND CUSTOMER’S SOLE REMEDY, WITH RESPECT TO CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.
10. INDEMNIFICATION BY CUSTOMER. Customer will indemnify and hold Plutora and its affiliates and their respective employees, officers, directors, and successors harmless from third party claims arising from or related to (a) Customer’s use of the Hosted Solutions, (b) Customer’s breach of the Agreement, (c) Customer Data, or (d) Customer’s violation of any applicable law or regulation or in violation of legal rights of others, including intellectual property rights or Data Protection Legislation. The foregoing will apply regardless of whether the damage is caused by the conduct of Customer or Authorized Users or by the conduct of a third party using any Authorized User log-in credentials. The foregoing is, however, conditional upon Plutora (i) notifying Customer thereof in writing and in detail without undue delay, (ii) authorizing Customer to conduct any judicial and extrajudicial proceedings with the third party on its own, and (iii) providing Customer at the expense of Customer with any reasonable assistance so that Customer can defend against the claim. Plutora will be entitled, at its option and own expense, to actively participate in the defense of any claim with counsel of Plutora’s own choosing.
11. EXCLUSIONS OF CERTAIN DAMAGES; LIMITATIONS OF LIABILITY.
11.1. EXCEPT FOR A BREACH OF SECTIONS 3.5, 5 AND 9, IN NO EVENT WILL EITHER PARTY BE LIABLE (REGARDLESS OF THE CAUSE OF ACTION OR THE ALLEGED BASIS OF THE CLAIM INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY) MISREPRESENTATION, RESTITUTION, OR OTHERWISE (AT LAW OR IN EQUITY)) FOR ANY (A) LOSS OF PROFITS OR LOSS OF BUSINESS, (B) DEPLETION OF GOODWILL OR SIMILAR LOSSES, (C) LOSS OF ANTICIPATED SAVINGS, (D) LOSS OF USE, (E) LOSS OR CORRUPTION OF DATA OF INFORMATION (WHETHER ANY OF THE LOSSES SET OUT IN (A) TO (D) ARE DIRECT OR INDIRECT), OR FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE HOSTED SOLUTIONS (INCLUDING DOCUMENTATION), THE PROVISION OF OR FAILURE TO PROVIDE HOSTED SOLUTIONS, OR OTHERWISE UNDER OR IN CONNECTION WITH THE AGREEMENT, AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES AND/OR THE REMEDIES OTHERWISE PROVIDED UNDER THE AGREEMENT, AT LAW, OR EQUITY FAIL OF THEIR ESSENTIAL PURPOSE.
11.2. NOTWITHSTANDING ANY DIRECT DAMAGES THAT CUSTOMER MIGHT INCUR FOR ANY REASON WHATSOEVER, THE ENTIRE LIABILITY OF EITHER PARTY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE (WHETHER AT LAW OR IN EQUITY) ARISING OUT OF OR IN CONNECTION WITH THE HOSTED SOLUTIONS OR THIS AGREEMENT WILL BE LIMITED TO THE ACTUAL DAMAGES UP TO THE LICENSE FEES PAID TO PLUTORA FOR THE HOSTED SOLUTION DURING THE TERM IN WHICH THE CLAIM AROSE.
11.3. THE LIMITATIONS SET FORTH IN THIS SECTION 11 WILL NOT APPLY TO ANY BREACH OF SECTION 3 (RESTRICTIONS).
12. FEEDBACK. Customer agrees that if it provides Plutora any suggestions, comments, or other feedback about the Hosted Solutions (“Feedback“) the Feedback is given voluntarily. Even if Customer designates Feedback as confidential, the Feedback is not Confidential Information and Plutora is free to use, disclose, reproduce, license, or otherwise distribute or exploit the Feedback without any obligations or restrictions of any kind, including intellectual property rights.
13. ASSIGNMENT. Customer may not assign the Agreement, nor any rights or duties hereunder, by contract, operation of law, or otherwise without Plutora’s express prior written consent. Subject to the foregoing, the Agreement will bind and benefit the Parties, their permitted successors and permitted assigns.
14. U.S. Government Rights. The Hosted Solutions are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Hosted Solutions. If Customer uses the Hosted Solutions on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Customer will immediately discontinue use of the Hosted Solutions. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
15. GOVERNING LAW AND DISPUTE RESOLUTION. The Agreement will be governed by and construed based on Customer’s Location, in accordance with either the laws of California, USA, or New South Wales, Australia. The UN Convention on Contracts for the International Sale of Goods will not apply to the Agreement. The Parties to the Agreement agree to jurisdiction and venue, based on the applicable Location, in either San Francisco, California, USA, or Sydney, New South Wales, Australia. A Party will provide written notice to the other Party of any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (“Controversy”). The Parties will engage in good faith negotiations to resolve the Controversy. Only if the Controversy is not resolved through good faith negotiations within 15 days of the sending of the written notice of Controversy, the Controversy may be submitted to litigation. Nothing in this Agreement will be deemed as preventing either Party from seeking immediate injunctive relief from any court having jurisdiction over the Parties and the subject matter of the dispute. Furthermore, the Parties each waive their respective rights to a trial by jury of any claim or cause of action based upon or arising out of or related to the Agreement, in any action, proceeding or other litigation of any type brought by a Party against the other Party, whether with respect to contract claims, tort claims, or otherwise. This waiver applies to any subsequent amendments, renewals, supplements (e.g., Supplemental Order Form) or modifications to the Agreement.
16. FORCE MAJEURE. Plutora will not be liable for any delay or default in its performance of any obligation under the Agreement caused directly or indirectly by an act or omission of Customer, fire, flood, act of God, acts of government, an act or omission of civil or military authority of a state or nation, strike, lockout or other labor problem, inability to secure, delay in securing or shortage of, labor, materials, supplies, transportation or energy, failures of subcontractors or suppliers, or by war, riot, embargo or civil disturbance, breakdown, or destruction of plant or equipment arising from any cause whatsoever, or any cause or causes beyond Plutora’s reasonable control (collectively, “Force Majeure Events”). At Plutora’s option if any of the foregoing causes will be deemed to suspend Plutora’s obligations as long as that cause prevents or delays performance, and Plutora agrees to perform, and Customer agrees to accept performance of, Plutora’s obligations whenever that cause has been remedied.
17. NOTICES. Except as otherwise expressly set forth in this Customer Agreement, all notices given to the Parties under the Agreement will be in writing and will be personally delivered, mailed by email or certified mail (return receipt requested and postage prepaid), or sent via overnight delivery by a nationally recognized courier service, addressed to the respective Parties at the addresses specified on the most recent Order Form that is part of the Agreement or at the address that a Party designates in a notice to the other Party.
18. CONSTRUCTION. If any part of the Agreement is held to be illegal, invalid, or unenforceable, that part will be enforced to the fullest extent permissible to effect the Parties’ intent, and the remainder will continue in full force. All choices by Plutora under the Agreement (no matter how described) are to be made in its sole discretion, unless stated otherwise. Any list of examples following “including” or “e.g.,” is illustrative and not exhaustive, unless qualified by terms like “only” or “solely.” Unless the context of this Agreement clearly requires otherwise, references to the plural include the singular. All references to Sections, terms, and Exhibits are to the Sections, terms and Exhibits of the Customer Agreement unless expressly indicated otherwise. All captions are intended solely for the Parties’ convenience, and none will affect the meaning of any provision. All references to “written,” “in writing,” or other words of similar import refer to a non-electronic, paper document only, except where electronic mail communication is expressly authorized.
19. THIRD PARTY RIGHTS. Except as set forth in Sections 9 or 10, there are no third party beneficiaries of the Agreement and no third party may enforce any of the terms in the Agreement. The rights of the Parties to terminate, rescind or agree to any variation, waiver or settlement under the Agreement are not subject to the consent of any person that is not party to the Agreement.
20. JOINT MARKETING. Customer agrees that Plutora can use Customer’s logo in a customer list on Plutora’s website or in Plutora’s marketing materials. Customer further agrees to assist Plutora in the parties’ mutual publicity efforts during the Term.
21. NO-CHARGE PRODUCTS. Plutora may offer certain Hosted Solutions to you at no charge, including free accounts, trial use, and access to Beta Versions as defined below (“No-Charge Products”). Your use of No-Charge Products is subject to any additional terms that Plutora specifies and is only permitted for the period designated by Plutora. You may not use No-Charge Products for competitive analysis or similar purposes. Plutora may terminate Customer’s right to use No-Charge Products at any time and for any reason in Plutora’s sole discretion, without liability to Customer. Customer acknowledges and understands that any pre-release and beta products Plutora makes available (“Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Products. Plutora makes no promises that any Beta Versions will ever be made generally available. In some circumstances, Plutora may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this Section 21. To the maximum extent permitted by applicable law, Plutora disclaims all obligations or liabilities with respect to No-Charge Products, including any Support and Maintenance, warranty, and indemnity obligations.
22. PLUTORA CONTRACTING ENTITY. Customer’s Location determines which Plutora entity Customer is contracting with for the Hosted Solutions. If Customer is located in North America, South America, Europe, the Middle East, Africa or Antarctica, then Customer is contracting with Plutora Inc. and this Agreement is governed by the laws of California, USA, without reference to conflicts of law principles. If Customer is located in Asia-Pacific, Australia or New Zealand, then Customer is contracting with Plutora Pty Ltd and this Agreement is governed by the laws of the state of New South Wales, Australia without reference to conflicts of law principles.
23. ENTIRE AGREEMENT. The Agreement constitutes the entire agreement between the Parties with respect to the Hosted Solutions and merges all prior and contemporaneous communications and proposals, whether electronic oral or written, between Parties with respect to the Hosted Solutions. Each Party acknowledges that, in entering into the Agreement, it has not relied on, and will have no right or remedy in respect of, any representation or warranty (whether made negligently or innocently) that is not set out in the Agreement. Each Party agrees that its only liability in respect of those representations and warranties that are set out in the Agreement (whether made innocently or negligently) will be for breach of contract. Nothing in this clause will limit or exclude any liability for fraud. The Agreement will prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase order or other document furnished by Customer to Plutora. In the event of conflict or inconsistency between provisions of the components of the Agreement, (a) this Customer Agreement will prevail over the terms of an Order Form unless the terms of an Order Form expressly state that they override these Customer Agreement; (b) this Customer Agreement will prevail over the Exhibits; and (c) a more recent Supplemental Order Form will prevail over the Order Form or a Supplemental Order Form agreed to earlier. Signatures sent by electronic means (facsimile or scanned and sent via e-mail) will be deemed original signatures. Plutora may in its sole discretion sub-contract parts of the Hosted Solutions to third-parties. No waiver of any provision of the Agreement will be effective unless it is in writing and signed by an authorized representative of both Parties, and no waiver will constitute a waiver of any other provision(s) or of the same provision on another occasion.