Service Terms and Conditions
Effective date: August 3, 2017
These Service Terms and Conditions (“Agreement”) constitute a contract between Dunkadoo, Inc. with offices at 70 Devon Rd, Bloomfield Hills, MI 48302 (“Dunkadoo”), and you. This Agreement includes and incorporates the webpage Order Form with which Customer purchased the Services and any subsequent Order Forms (submitted in written or electronic form). By accessing or using the Services, you agree to be bound by this Agreement. If you are entering into this Agreement on behalf of a company, organization or other entity, you represent that you have such authority to bind such entity and are agreeing to this Agreement on behalf of such entity. If you do not have such authority to enter into this Agreement or do not agree with these terms and conditions, you may not use the Services.
1.DEFINITIONS
1.1.“Dunkadoo Cloud Services” means any connection and subsequent interactions that the user’s software, browser, or servers make to Dunkadoo’s Services.
1.2.“Dunkadoo Mobile Software” shall mean the Company’s mobile applications that are intended to be installed on tablets and other mobile devices and that interact with the Software and as may be further described on the applicable Order Form.
1.3.“Dunkadoo WebApp” means the web portal currently available at https://dunkadoo.org/dashboard which allows users to manage the software and Customer Data.
1.4.“Customer Data” shall mean all electronic data or information submitted or transmitted by or on behalf of Customer or Users to the System.
1.5.“Intellectual Property Rights” means all patents, registered designs, unregistered designs, design rights, utility models, semiconductor topography rights, database rights, copyright and other similar statutory rights, trade mark, service mark and any know how relating to algorithms, drawings, tests, reports and procedures, models, manuals, formulae, methods, processes and the like (including applications for any of the preceding rights) or any other intellectual or industrial property rights of whatever nature in each case in any part of the world and whether or not registered or registerable, for the full period and all extensions and renewals where applicable.
1.6.“Malicious Code” shall mean viruses, worms, time bombs, Trojan horses and other harmful files, scripts, agents or programs.
1.7.“Order Form” shall mean the online ordering documents or descriptions of Services for Customer’s purchases of Services from Company that are completed in connection with entering into this Agreement.
1.8.“Professional Services” shall mean the implementation, integration, onboarding, consulting, support, training, customer support and similar services as described in an Order Form.
1.9.“Project Start Date” shall mean the date mutually agreed upon by the parties following the completion of an applicable Order Form, upon which date Company shall commence provision of Professional Services under an Order Form.
1.10.“Services” shall mean the provision of the System and Professional Services collectively.
1.11.“Software” means the Dunkadoo Mobile Applications, Dunkadoo Cloud Services, and Dunkadoo WebApp.
1.12.“Start Date” shall mean the date on which Company shall make the System available to Customer as set forth in an applicable Order Form and as may be updated pursuant to additional Order Forms.
1.13.“Subscription Term” shall mean the subscription period set forth in an applicable Order Form, including any renewals or extensions thereof as set forth in an Order Form or otherwise agreed to by the parties.
1.14.“System” shall mean the Software, Applications, forms, reports, associated documentation, Company’s database, and all software, hardware and systems accessed or utilized by Company, in connection with providing access to the Software and Applications to Customer under this Agreement.
1.15.“Users” means any and all Customer employees, clients, contractors or agents who are authorized by Customer and who have been issued a User ID and password to access and use the System for Customer’s internal business purposes.
2.USE OF THE SYSTEM
2.1.Company Responsibilities. Company shall, during the Subscription Term:
2.1.1.Provide the System in a manner consistent with general industry standards reasonably applicable to the provision thereof;
2.1.2.Provide basic email or online forum support to customer; and
2.1.3.Use commercially reasonable efforts to make the System available 24 hours a day, seven days a week, except for planned downtime or any unavailability caused by circumstances beyond Company’s reasonable control.
2.2.Access to System and Applications. Subject to the terms and conditions of this Agreement, Company grants to Customer a non-exclusive, non-transferable, limited term right, without the right to sub-license, for Users to access, display and use the System remotely via the Internet during the Subscription Term solely for Customer’s business purpose(s) of managing Customer Data on behalf of Customer or, if applicable, on behalf of Customer’s clients. In addition, Company grants to Customer a non-exclusive, non-transferable, limited term right, without the right to sub-license, for Customer to install the Applications on Customer or Customer approved mobile devices that are approved for use with the Applications by Users and to use the Applications solely in connection with the System during the Subscription Term.
2.3.Dunkadoo will make the Services available and the Services will perform substantially in accordance with the description of the services found at https://dunkadoo.org/pricing. Notwithstanding the foregoing, Dunkadoo reserves the right to suspend Customer’s (or any User’s) access to the Services: (i) for scheduled or emergency maintenance, (ii) immediately in the event that Customer breaches any provision of this Agreement and fails to correct that breach within the applicable cure period; (iii) as it deems reasonably necessary to respond to any actual or potential security concern that may affect customers; or (iv) based on Dunkadoo’s reasonable belief that Customer’s or Users’ use of the Services is interfering with use by other customers and users or violating applicable laws, rules, regulations or third party rights.
2.4. Customer Responsibilities. Customer is responsible for all activities that occur in Customer’s account(s), including all Users. Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (b) prevent unauthorized access to, or use of, the System, and notify Company promptly of any such unauthorized access or use; and (c) comply with all applicable laws and regulations in using the System. Customer shall not upload to, or store within, the System (and the Customer Data shall not contain) any personally identifiable information, including, without limitation, social security numbers, financial account numbers (i.e. credit card, checking account, savings account, etc.), medical, employment, or insurance numbers, and passport numbers. For purposes of clarity, Customer may use personal information required to use the System such as customer name, email address, and mobile phone number or derived information such as segments, scores, or lifecycle attributes used to make decisions within the System. Customer acknowledges and agrees that Customer and/or Users may be required to agree to additional terms and/or privacy notices in connection with their use of the System and Customer is responsible for causing its Users to agree to such terms and notices. Customer also acknowledges and agrees that the operation and use of the Applications requires the transmission of location information while the Applications are in use and Customer is responsible for disclosing this functionality to all Users and obtaining their consent to collect such information. Customer is responsible for supplying or approving all equipment and mobile devices that are compatible with the System (including the Applications) for its and all Users’ use of the System. If Users do not accept these terms or notices, Customer and/or Users do not provide appropriate mobile devices or Users do not enable certain features of their mobile devices (e.g., location), Users may not be able to access and use the Applications or the System. Customer is solely responsible for ensuring compliance with these requirements.
2.5.Use Guidelines. Customer shall use the System solely as contemplated by this Agreement and shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the System available to any third party except as contemplated by this Agreement; (b) send via or store within the System infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (c) send via the System any unsolicited commercial or non-commercial communication; (d) send via, upload to, or store within the System any Malicious Code; or (e) attempt to gain unauthorized access to the System or its related systems or networks. If Customer is authorizing any clients, contractors or agents to access the System, Customer is solely responsible for their acts and omissions and Customer is solely responsible for directly supporting all such Users. Further, Customer will not make any representation, guarantee or warranty to any actual or prospective User regarding the performance or functional characteristics of the System inconsistent with or beyond those permitted, in writing, by Company, in its sole discretion. Company will not be liable for any such terms and conditions inconsistent with or in addition to those contained in this Agreement.
2.6.Authorized Use Only. Customer is responsible for the acts and omissions of all Users. Customer will implement reasonable controls to ensure that the System is only accessed and used by the then-currently authorized Users. Customer will take all reasonable steps to ensure that each User’s access to and use of the System is in compliance with the terms of this Agreement. Customer will be responsible for any breaches by Users, and will cooperate with Company in the enforcement of this Agreement against all third party client, contractor and agent Users. Company will have the right to immediately discontinue a User’s access to and use of the System if such User’s acts or omissions would, if they were the acts or omissions of Customer, be a violation of any of the terms of this Agreement or otherwise impedes or disrupts any third party’s use of the System. Where reasonably possible, Company will deliver notice to Customer of the termination of a User’s access to and use of the System.
2.7.Additional Customer Obligations. Customer will: (a) cooperate with Company on all reasonable requests for information including data, service contract details, and other information important to an effective implementation of the System; (b) allocate one internal employee for a specified period of time to assist in developing and implementing the System; and (c) have in place the appropriate browser and other software and hardware for accessing the System.
2.8.Customer will be fully responsible for Users’ compliance with this Agreement and any breach of this Agreement by a User shall be deemed to be a breach by Customer.
3.FEES & PAYMENT
3.1.Service Fees. Company or one of its resellers will invoice Customer (which may occur online or through the System) for access and use of the System and for work performed as set forth in the applicable Order Form or as agreed to in the System. Company or one of its resellers will also charge Customer for all renewals as agreed to by Customer and Customer may have the opportunity to renew System access within the System or through communication with Dunkadoo. Except as otherwise specified in the applicable Order Form, fees are based on the System access and Services purchased and not actual usage; payment obligations are non-cancelable; except as expressly set forth in this Agreement, fees paid or committed to are non-refundable; and the System access and Services purchased cannot be decreased during the relevant Subscription Term.
3.2.If a Customer uses only Free Services, Dunkadoo will not charge such Customer any Fees for use of such Free Services or download, installation or use of the Software associated with Free Services. Such Customer may discontinue using the Free Services at any time, but must immediately remove any Software from its devices.
3.3.Dunkadoo shall invoice Customer for the increase in the maximum number of Users at the subscription rate and payment terms specified at https://dunkadoo.org/pricing, which will be prorated for the remainder of the then applicable subscription Term. For any future subscription Term, the number of Users and applicable Fees will reflect any Subscription Upgrades.
3.4.Overdue Payments. Customer’s failure to pay as set forth herein shall constitute a material breach of this Agreement and any such payments will accrue interest at the rate of one and one-half percent (1 1/2%) per month or the highest rate permitted by law, whichever is less. If Customer’s account is overdue (except with respect to charges then under reasonable and good faith dispute), Company may, in addition to any of its other rights or remedies, suspend Customer’s access to the System and/or suspend provision of Professional Services until such amounts are paid in full, and/or upon written notice Company may terminate this Agreement and any or all outstanding Order Forms, as applicable. Company’s rights under this section will be in addition to all other rights and remedies available to Company upon Customer’s default.
4.PROPRIETARY RIGHTS
4.1.Reservation of Rights. Subject to the limited rights expressly granted hereunder, Company reserves all rights, title and interest in and to the System, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. As between Company and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data and Company is hereby authorized to use the Customer Data to perform the Services and, subject to the confidentiality obligations set forth herein, to improve and enhance the System. Company may use the trademarks and trade names of Customer solely in connection with its authorized provision of the System. Customer shall not (a) modify, copy or create derivative works based on the System or any portion thereof; or (b) reverse engineer the System or any portion thereof (except to the extent that such a restriction would be a breach of applicable law).
4.2.Improvements; Deliverables. Company shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the System or any new programs, upgrades, modifications or enhancements developed by Company in connection with this Agreement or the provision of the System or Services to Customer, even when refinements and improvements result from Customer’s request or feedback. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in Company by virtue of this Agreement or otherwise, Customer hereby transfers to Company all rights, title, and interest which Customer may have, and such transfer is irrevocable, irreversible and binding on Customer’s successors. Company hereby grants Customer a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to use for its internal business purposes any items developed by Company for Customer in the performance of Professional Services under an Order Form that are expressly described as deliverables (“Deliverables”). Except as expressly set forth in this Agreement, Company shall retain all ownership rights to the Deliverables.
5.CONFIDENTIALITY
5.1.Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that (a) if disclosed orally is designated as confidential at the time of disclosure, (b) if disclosed in writing is marked as “Confidential” and/or “Proprietary”, or (c) that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, the terms and conditions of this Agreement, any Order Form, the Customer Data, provision of the Services, business and marketing plans, technology and technical information, product designs, and business processes. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party. Confidential Information (except for Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
5.2.Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to those of its employees who need to know such information for purposes of performing the Services. The Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event shall it use less than a reasonable degree of care.
5.3.Compelled Disclosure; Remedies. If the Receiving Party is compelled by law, an order issued by a judge or public competent authority to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek to file a lawsuit to enjoin such acts.
5.4.Customer acknowledges that Dunkadoo does not wish to receive any Confidential Information from Customer that is not necessary for Dunkadoo to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Dunkadoo may reasonably presume that any unrelated information received from Customer is not confidential or Confidential Information, unless such information is marked as “Confidential.”
6.DATA PROTECTION
6.1.In this Section, the terms “personal data,” “data processor,” “data subject,” “process and processing” and “data controller” shall be as defined in the applicable Data Protection Laws.
6.2.For the purposes of the Data Protection Laws, as between Customer and Dunkadoo, the parties agree that Customer shall at all times be the data controller and Dunkadoo shall be the data processor with respect to the processing of Customer Personal Data in connection with this Agreement.
6.3.By entering into this Agreement, Customer agrees that Dunkadoo may collect, retain and use certain Customer Personal Data (which may include, without limitation, names, mobile telephone numbers, IP addresses and email addresses of Users) in connection with the Services. As the data controller of such Customer Personal Data, Customer represents and warrants to Dunkadoo that its provision of personal data to Dunkadoo and instructions for processing such personal data in connection with the Services shall comply with all Data Protection Laws. This shall include (without limitation) ensuring that Customer: (i) has given adequate notice and made all appropriate disclosures to data subjects regarding Customer’s and Dunkadoo’s use and disclosure of Customer Personal Data, including (without limitation) for the provision of the Services; and (ii) has or obtains all necessary rights, and where applicable, all appropriate and valid consents from the data subjects to share such personal data with Dunkadoo and to permit use of Customer Personal Data by Dunkadoo for the purposes of the provision of the Services and performing its obligations under this Agreement or as may be required by applicable law, including (without limitation) notifying the data subject of the transfer of Customer Personal Data outside of the European Economic Area to countries whose laws they have acknowledged may provide a lower standard of data protection than exists in the European Economic Area.
6.4.At the request of Customer, Dunkadoo and Customer shall negotiate a separate data processing agreement and/or model contract clauses setting forth each party’s obligations in respect of any processing of Customer Personal Data, which agreement and/or model contract clauses will be incorporated herein by reference once executed by the parties.
6.5.Customer acknowledges that Dunkadoo is reliant on Customer for direction as to the extent to which Dunkadoo is entitled to use and process Customer Personal Data. Consequently, Dunkadoo will not be liable for any claim brought by a data subject to the extent that such action or omission resulted directly from Customer’s instructions. Customer undertakes to comply in all respects with any applicable laws, regulations, standards and guidelines applicable to personal data and shall use all reasonable endeavors to where possible anonymize personal data sent to Dunkadoo.
6.6.In accordance with applicable Data Protection Laws, Dunkadoo shall take all commercially reasonable measures to protect the security and confidentiality of Customer Personal Data against any accidental or illicit destruction, alteration or unauthorized access or disclosure to third parties.
6.7.Customer may, upon at least thirty (30) days prior notice, and no more than once per 12 month period, appoint an independent third party auditor to physically inspect and audit, at Customer’s sole cost and expense, any facilities owned or controlled by Dunkadoo in which Customer Personal Data is processed or stored, provided that such inspection: (i) shall occur on a mutually agreed upon date during Dunkadoo’s regular business hours; (ii) does not interfere with any of Dunkadoo’s business operations; and, (iii) does not, in Dunkadoo’s reasonable discretion, create any risk to the confidentiality, integrity, or availability of any data stored or processed by Dunkadoo. Prior to any audit, Customer, and any appointed auditor, must enter into a nondisclosure and confidentiality agreement as may be required by Dunkadoo.
7.WARRANTIES & DISCLAIMERS
7.1.Customer Warranties. Customer represents and warrants that: (a) Customer has all right to provide the Customer Data to Company and the provision and use of the Customer Data in connection with this Agreement does not violate any applicable law, rule, regulation or order; (b) the Customer Data shall not infringe on any copyright, patent, trade secret or other proprietary right held by any third party; and (c) Customer shall not use the Services in a manner that violates any applicable law, rule, regulation or order.
7.2.Company Warranties. For Customers enrolled in one of the editions of Services requiring purchase, Dunkadoo represents and warrants that it will not knowingly include, in any Dunkadoo software released to Users and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as viruses, disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or User data. If, at any time, Dunkadoo fails to comply with this warranty, Customer may promptly notify Dunkadoo in writing of any such noncompliance. Dunkadoo will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable correction plan is not established during such period, Customer may terminate this Agreement and receive a refund of any pre-paid but unearned subscription Fees, prorated on a monthly basis, as its sole and exclusive remedy for such noncompliance. This provision does not apply to Customer’s use of Free Services.
7.3.Disclaimer. EXCEPT AS EXPRESSLY CONTAINED IN THIS AGREEMENT, ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE, COMMON LAW OR IN ANY OTHER WAY, INCLUDING ANY IMPLIED WARRANTIES AS TO QUALITY, PERFORMANCE, TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE AND USAGE OF TRADE, ARE EXCLUDED FROM THIS AGREEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. COMPANY DOES NOT WARRANT THAT THE SYSTEM WILL MEET THE REQUIREMENTS OF CUSTOMER OR ANY USERS OR THAT THE OPERATION OR USE OF THE SYSTEM WILL BE UNINTERRUPTED OR ERROR FREE. FURTHER, COMPANY DISCLAIMS ANY AND ALL WARRANTIES THAT THE SYSTEM, OR CUSTOMER’S USE OF THE SYSTEM IN CONNECTION WITH ANY CUSTOMER DATA, WILL MEET CUSTOMER’S REQUIREMENT OR THAT IT COMPLIES WITH ANY OF CUSTOMER’S OBLIGATIONS UNDER ANY APPLICABLE REGULATORY AUTHORITY AND CUSTOMER IS SOLELY RESPONSIBLE FOR ALL SUCH OBLIGATIONS. COMPANY FURTHER DISCLAIMS ALL WARRANTIES, CONDITIONS AND OTHER TERMS THAT COMPANY HAS ANY KNOWLEDGE OF THE CONTENT OF THE CUSTOMER DATA OR WHETHER CUSTOMER’S USE OF THE SYSTEM OR TRANSMISSION OF CUSTOMER DATA TO COMPANY COMPLIES WITH ANY APPLICABLE LAWS, REGULATIONS, RULES OR ORDERS.
8.INDEMNIFICATION
8.1.By Company. For Customers enrolled in one of the editions of Services requiring purchase, Dunkadoo shall indemnify and hold Customer harmless from liability to third parties resulting from infringement by the Services of any patent or any copyright or misappropriation of any trade secret, provided Dunkadoo is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Dunkadoo will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by Dunkadoo, (ii) resulting in whole or in part from Customer specifications, (iii) that are modified after delivery by Dunkadoo, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of Services is not strictly in accordance with this Agreement and all related Documentation. If Dunkadoo receives information about an actual or alleged infringement or misappropriation claim that would be subject to indemnification rights set forth in this Section, Dunkadoo shall have the option, at its expense, to: (a) modify the Software to be non-infringing; or (b) obtain for Customer a license to continue using the Software. If Dunkadoo determines it is not commercially reasonable to perform either of the above options, then Dunkadoo may at its option elect to terminate the license for the Services and refund the unearned portion of any pre-paid subscription Fees, prorated on a monthly basis. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT, MISAPPROPRIATION AND/OR CLAIMS ALLEGING INFRINGEMENT OR MISAPPROPRIATION. Customer will indemnify Dunkadoo from all damages, costs, settlements, attorneys’ fees and expenses related to any claim related to (I) infringement or misappropriation not otherwise subject to Dunkadoo's indemnification obligation set forth in this section and (II) Customer’s breach relating to user-generated content and User consents, respectively, Section “Restrictions,” Section “Intellectual Property Rights; Ownership” or Section “Data Protection.” Dunkadoo’s obligations under this section do not apply to Customer’s use of Free Services.
8.2.By Customer. Customer shall defend, indemnify, and hold Company, and its respective officers, directors, and employees, harmless against any loss, damage, or costs (including reasonable attorneys’ fees) incurred in connection with a Claim (a) that is made or brought against Company by a third party alleging that Company’s use of the Customer Data within the scope of this Agreement infringes the intellectual property rights of such third party or violates any applicable law, regulation, rule or order; or (b) arises due to Customer’s breach or alleged breach of this Agreement.
8.3.Procedure. As an express condition to the indemnifying party’s obligation under this Section, the party seeking indemnification must: (a) promptly notify the indemnifying party in writing of the applicable Claim for which indemnification is sought; and (b) provide the indemnifying party with all non-monetary assistance, information and authority reasonably required for the defense and settlement of such Claim.
9.LIMITATIONS
9.1.Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER UNDER THE APPLICABLE ORDER OR SOW IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
9.2.Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, COMPANY SHALL NOT HAVE ANY LIABILITY TO CUSTOMER FOR (I) THE ACTS OR OMISSION OF ANY OR ALL USERS, INCLUDING ANY ACTS OR OMISSIONS OF ANY CLIENT, CONTRACTOR OR AGENT USERS AUTHORIZED BY CUSTOMER TO USE THE SYSTEM OR ANY OF THEIR USE OF ANY CUSTOMER DATA OBTAINED THROUGH THE SYSTEM; OR (II) WITH RESPECT TO THE CONTENT OF THE CUSTOMER DATA OR WHETHER CUSTOMER’S USE OF THE SYSTEM OR THE TRANSMISSION OF CUSTOMER DATA TO COMPANY COMPLIES WITH ANY APPLICABLE LAWS, REGULATIONS, RULES OR ORDERS. CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY DOES NOT, AND HAS NO DUTY TO, INVESTIGATE OR ANALYZE THE CUSTOMER DATA OR THE CONTENT THEREOF. THE EXCLUSIONS SET FORTH IN THIS SECTION WILL NOT APPLY TO ANY LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY LIABILITY OF COMPANY WHICH CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
10.TERM & TERMINATION
10.1.Term. This Agreement commences on the Effective Date and continues, unless
10.2.terminated as set forth in this Section or unless either party provides written notice of non-renewal at least thirty (30) days prior to the applicable anniversary of the Effective Date, for successive one year periods (the “Term”). Subscriptions to the System commence on the Start Date and continue for the Subscription Term specified in the applicable Order Form. Thereafter, the subscription will be automatically renewed for an additional Subscription Term to avoid interruption in service. Company shall suspend Customer’s access to the System after the expiration of the then-current Subscription Term if such a renewal has not been executed. Professional Services shall commence on the Project Start Date and shall continue until such Professional Services are completed.
10.3.Termination for Cause. A party may terminate this Agreement for cause upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such 30 day period. Upon any termination for cause by Customer, Company shall refund Customer any prepaid fees covering the remainder of the Subscription Term after the date of termination, less expenses incurred by Company to perform the Services. Termination for cause by Customer shall not relieve Customer of the obligation to pay any fees accrued or payable to Company prior to the effective date of termination. Upon any termination for cause by Company, Customer shall remain obligated to pay all fees owed for the remainder of the Subscription Term, all of which fees shall become immediately due and payable in full.
10.4.System. Following the termination or expiration of this Agreement or the applicable Order Form, (a) Customer will immediately cease use of the System and verify in writing to Company that it has destroyed, permanently erased or returned to Company the Applications and any of Company’s Confidential Information in its possession or control; and (b) all rights granted under this Agreement immediately terminate. Sections 3, 4, 5, 6.3, 7, 8, 9.3 and 10 survive termination or expiration of this Agreement.
11.GENERAL PROVISIONS
11.1.Relationship of the Parties. The relationship between the parties created by this Agreement is one of independent contractors and neither party shall have the power or authority to bind or obligate the other except as expressly set forth in this Agreement. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.
11.2.Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.3.Publicity. Customer agrees to participate in press announcements, case studies, trade shows, or other marketing reasonably requested by Dunkadoo. During the Term and for thirty (30) days thereafter, Customer grants Dunkadoo the right, free of charge, to use Customer’s name and/or logo, worldwide, to identify Customer as such on Dunkadoo’s website or other marketing or advertising materials.
11.4.Force Majeure. If performance of any obligation hereunder (except payment of monies due) is prevented, restricted or interfered with by any force majeure, including without limitation act of God; fire or other casualty or accident; strikes or labor disputes; war or other violence; internet, network or data transmission unavailability or outages outside of Company’s control; outages or unavailability of or delays in procuring materials, services, power or supplies; any law, order, proclamation, regulation, ordinance, demand or requirement of any governmental or intergovernmental agency or body; or any other act or condition whatsoever beyond the reasonable control of the party affected thereby, the party so affected will be excused from such performance during the time such prevention, restriction or interference persists. Where any such failure of a party occurs and lasts more than one month, the other party may (at its sole discretion) terminate this Agreement by serving notice of termination with immediate effect, or suspend the performance of this Agreement.
11.5.Notice. Any formal legal notice (but excluding operational notices or notices of non-renewal which may be communicated through the System) to be given by one party to the other under this Agreement will be in writing. Delivery will be by trackable express courier delivery service (delivery charge prepaid) to the appropriate address set forth in the Order Form, and will be deemed to have been served on actual delivery.
11.6.Trademarks. The Dunkadoo name and logos (including, without limitation, those of Dunkadoo’s affiliates), all product and service names, all graphics, all button icons, and all trademarks, service marks and logos appearing within this Site, unless otherwise noted, are trademarks (whether registered or not), service marks, and/or trade dress of Dunkadoo and/or its affiliates (the “Dunkadoo Marks”). All other trademarks, product names, company names, logos, service marks and/or trade dress mentioned, displayed, cited or otherwise indicated within this Site are the property of their respective owners. You are not authorized to display or use the Dunkadoo Marks in any manner without our prior written permission. You are not authorized to display or use trademarks, product names, company names, logos, service marks and/or trade dress of other owners featured within this Site without the prior written permission of such owners. The use or misuse of the Dunkadoo Marks or other trademarks, product names, company names, logos, service marks and/or trade dress or any other materials contained herein, except as permitted herein, is expressly prohibited.
11.7.Your Feedback. Any Feedback you provide to us through this Site will be and remain our exclusive property. Your submission of Feedback will constitute an assignment to us of all worldwide rights, title and interests in your Feedback, including all copyrights and other intellectual property rights in your Feedback. We will be entitled to reduce to practice, exploit, make, use, copy, disclose, display or perform publicly, distribute, improve and modify any Feedback you submit for any purpose whatsoever, without restriction and without compensating you in any way. For this reason, we ask that you not send us any Feedback that you do not wish to assign to us.
11.8.Governing Law. This Agreement shall be governed exclusively by the laws of the State of Michigan, United States, without regard to its conflicts of laws rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This Agreement has been written in the English language, and the parties agree that the English version will govern.
11.9.Miscellaneous. This Agreement, including all Order Forms, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms of this Agreement shall prevail unless expressly stated otherwise in such Order Form. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall be replaced with a valid provision that is closer to the scope and intent of the invalid provision and shall not affect the validity of the remaining provisions hereof. This Agreement may be executed in two (2) counterparts with the exact same contents, which taken together shall form one legal instrument.