Software as a Service Terms and Conditions
Software as a Service Terms and Conditions
These Software as a Service Terms and Conditions (“Terms”) are agreed upon between Rebric Inc., a Colorado corporation doing business as “Compliable Technologies” and/or “Compliable” (“Compliable”), and, as applicable, the entity which has accepted this Agreement by agreeing to the Order (defined below) which references these Terms (“Customer”). These Terms, along with the Order, and other documents incorporated by reference, create an agreement between Compliable and Customer (collectively, the “Agreement”) which sets forth the terms and conditions that govern Customer’s access to and use of the Platform (defined below) and the Services (defined below).
BY ACCEPTING THESE TERMS BY CLICKING A BOX INDICATING ACCEPTANCE OR EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS, CUSTOMER AGREES TO THESE TERMS. IF THE INDIVIDUAL ACCEPTING THESE TERMS IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THESE TERMS DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS, SUCH INDIVIDUAL MUST NOT ACCEPT THESE TERMS OR THIS AGREEMENT AND MAY NOT USE THE SERVICES.
Introduction to Compliable: Compliable delivers a suite of compliance software-as-a-service solutions offered through a single platform. These services are designed to enable Customer to easily generate gaming license applications and to provide a dashboard through which Customer can track and manage the applications submitted by Individual Users.
- Definitions. Capitalized terms not defined in these Terms shall have the meaning given to them in the Order.
- “Administrative Users” means Customer’s and its Affiliates’ employees, consultants, contractors, and agents (i) who are authorized by Customer and Compliable to access and utilize backend controls for the Services under the rights granted to Customer pursuant to this Agreement, and (ii) for whom access to the Services has been purchased under an Order.
- “Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with, a party. As used herein, “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of more than 50% of the voting securities or interests of an entity (but only for as long as such entity meets these requirements).
- “Confidential Information” means information provided or made available by one party (“Discloser”) to the other party (“Recipient”) that (i) is identified or marked as confidential at the time of disclosure, and/or (ii) should reasonably be understood by Recipient to be confidential due to the nature of the information or the circumstances surrounding its disclosure. Compliable’s Confidential Information includes all non-public information relating to the Services, including Fees identified in any Order, performance or benchmark results, and any usage statistics. Customer’s Confidential Information includes Customer Data. Individual User’s Confidential Information includes Individual User Data.
- “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted into the Platform by or on behalf of Customer and/or a User through the use of the Services; provided, however, that Customer Data does not include the Usage Data.
- “Documentation” means Compliable’s user manuals, handbooks, and instructions relating to the Services provided or made available by Compliable to Customer.
- “Individual User” means an individual end user of the Services authorized by Customer (i) who is authorized by an Administrative User to access and use the Services for the purpose of generating and managing gaming licensing applications, and (ii) for whom access to the Services has been purchased under an Order.
- “Individual User Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted into the Platform by an Individual User through the use of the Services; provided, however, that Individual User Data does not include the Usage Data.
- “Order” means the quotation, proposal, or order for Services detailing the Services to be made available by Compliable executed by Customer and Compliable or made online through any ordering process on the Compliable website through which Customer orders Services and into which these Terms are incorporated.
- “Platform” means the Compliable proprietary gaming license management platform utilized by Compliable to provide the Services to Customer under this Agreement and any updates and upgrades to the Platform subsequently made available by Compliable to Customer as part of the Service.
- “Services” means (i) the software-as-a-service offering using the Platform that permits Customer and Users to securely enter data required to generate gaming license applications and to track and manage the status of those applications as more particularly described in the applicable Order, and (ii) any implementation, training, and other ancillary services if described in the applicable Order.
- “Third-Party Applications” means third-party websites or applications accessible through the Services or which Compliable may make available to Customer in connection with the Services either directly or indirectly, through technology integrations, or otherwise.
- “Usage Data” means information collected in connection with and generated by use of the Services.
- “Users” means Administrative Users and Individual Users.
- Provision of Access. Subject to the terms and conditions of this Agreement, during the Term, Customer and Individual Users, as applicable, shall have the non-exclusive, worldwide, limited right to access and use the Platform (and applicable Documentation) for the Services ordered by Customer solely for the internal business operations of Customer in accordance with the Order and these Terms. Customer may allow its Users to use the Services for this purpose, and Customer is responsible for (i) Users’ compliance with this Agreement and Customer’s Order, (ii) each User’s actions while using the Services, and (iii) maintaining the security of each User’s username and password.
- Provision of Services. Subject to the terms and conditions of this Agreement, Compliable shall provide the Services to Customer pursuant to the applicable Order and this Agreement. Purchase by Customer of the Services is not contingent on the provision of any future functionality or features, or dependent on any oral written public comments made by Compliable regarding future functionality or features.
- Support. During the Subscription Term, Compliable will provide Customer the support and service levels for the Services as specified in the Order Form, in accordance with Compliable’s Service Level Agreement attached hereto as Exhibit A (the “SLA”). Customer acknowledges and agrees that Compliable may rely on the actions and instructions of any User in the provision of Support to Customer.
- Fees and Payment.
- Fees. Customer shall pay Compliable the fees agreed upon by Customer and Compliable and set forth in the applicable Order (“Fees”).
- Overages. Compliable monitors and may conduct a quarterly or other periodic accounting of Customer’s and its User’s use of the Services to determine usage. If such usage exceeds the rights purchased by Customer in the applicable Order (“Overage”), Compliable shall invoice Customer for all additional fees resulting from the Overage (the “Overage Fees”). Such invoice shall include a report detailing the Overage. Customer shall pay Compliable all undisputed amounts set forth in such invoice in accordance with Section 4(c). If Customer has a good faith dispute of any Overage Fees contained in such invoice, Customer shall notify Compliable and the parties will discuss any disputed amounts in good faith in an effort to seek resolution within 60 days after Compliable’s receipt of such notice. Compliable reserves the right to monitor Customer’s use of the Services in order to assist it with determining Overages. This monitoring shall not be used to identify any Individual Users.
- Payment. Unless otherwise expressly stated in the applicable Order, Customer shall pay all Fees (including Overage Fees) to Compliable in United States Dollars within 30 days after the date of receipt of the applicable invoice. If Customer fails to pay the Fees within 10 days after receipt of notice that such payment is past due, without limiting Compliable’s other rights and remedies, Compliable may (1) suspend Customer’s and its Users’ access to all or any portion of the Services until such past due amounts are paid in full and (2) charge Customer interest at the rate of 1.5% per month (or the highest rate allowable by law, if less) for any past due amounts from the date payment was due until the date paid. Customer shall bear any costs (including attorneys’ fees and costs) incurred by Compliable in collecting any amounts due hereunder.
- Taxes. All Fees (including Overage Fees) are exclusive of taxes, duties, levies, tariffs, and other governmental charges including, without limitation, VAT, GST, or similar withholding taxes or obligations (collectively, “Taxes”). Customer shall be responsible for paying all Taxes associated with the Services (without any offset or deduction to the fees paid to Compliable) other than taxes based on Compliable’s net income, and Customer may not reduce the fees payable to Compliable as a result of Taxes. If Compliable is required by the applicable taxing jurisdiction to charge Customer Taxes for the provision of Services under this Agreement, Compliable shall include the corresponding tax amount on the applicable invoice.
- Term and Termination.
- Term. The Term of this Agreement is set forth in the Order and shall renew automatically for consecutive additional Terms at the end of the then-current Term at Compliable’s then-current pricing unless either Party notifies the other Party in writing in accordance with Section 14(d) no later than thirty (30) days prior to the scheduled renewal date that it is electing not to renew the Services, in which case Customer’s access to the Services shall end upon the expiration of the then-current Term.
- Termination. Either Neither party may terminate this Agreement except if the other party materially breaches this Agreement and fails to cure such breach (if curable) within 30 days after the non-breaching party has provided the breaching party with written notice of such breachupon written notice if the other party materially breaches this Agreement or any terms set forth in an Order and fails to cure such breach (if curable) within 30 days after the non-breaching party has providing provided the breaching party with written notice of such breach. Upon the expiration or termination of an Order for any reason, any amounts owed to Compliable under such Order will become immediately due and payable.
- Effect of Termination. Upon expiration or termination of this Agreement: (i) the license granted to Compliable with respect to Customer Data shall immediately terminate and Compliable will delete all Customer Data stored in the Platform; (ii) Customer shall promptly discontinue all use of the Services, including use of the Services by its Users; (iii) if Customer terminates under Section 5(b) above, Customer shall pay all Fees and undisputed Overage amounts due for the Services up to the effective date of termination and Compliable will refund any prepaid and unused Individual User license fees on a prorated manner after such effective date of termination together with any prepaid state gaming license application form fees for forms that Customer has not used as of the effective date of termination, or if Compliable terminates under Section 5(b) above, Customer shall pay all amounts due under the Agreement for the entirety of the then-current term for all Orders to the extent permitted by applicable law; and (iv) each party will return to the other all property (including any Confidential Information) of the other party (or delete such property upon request by the other party). Customer Data is stored by Compliable solely in an encrypted format and is not available for download at any time, including upon expiration or termination of this Agreement. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, ownership of intellectual property, confidentiality obligations, warranty disclaimers, and limitations of liability.
- Confidential Information.
- Obligations. Recipient shall (i) not use or disclose any Confidential Information for any purpose except as necessary in performance of its obligations under this Agreement or as otherwise authorized by Discloser in writing, including disclosures to Third-Party Applications, and (ii) limit access to Confidential Information to those of its and its Affiliates’ employees and contractors who have a need to know such Confidential Information for purposes consistent with this Agreement and who are bound by confidentiality obligations that are no less protective of the Confidential Information than those in this Agreement. Recipient shall protect Confidential Information using the same degree of care that it uses to protect the confidentiality of its own confidential information (but not less than reasonable care). All Confidential Information shall remain the property of Discloser. Upon termination, Recipient shall cease any use of the Confidential Information. Upon Discloser’s written request, Recipient shall promptly return or destroy all documents and tangible materials containing Confidential Information.
- Exclusions. Recipient shall not have any confidentiality obligations for information that: (i) is generally available to the public without breach of this Agreement or any existing confidentiality obligations governing such information; (ii) is developed by the Recipient independently from and without reference to the Confidential Information; (iii) is rightfully disclosed to Recipient by a third party without restriction; or (iv) was in Recipient’s lawful possession prior to disclosure and was not obtained by Recipient either directly or indirectly from Discloser. If Recipient is required by law or court order to disclose Confidential Information, then Recipient shall, to the extent legally permitted, provide Discloser with advance written notice and cooperate in any effort to obtain confidential treatment of the Confidential Information.
- Confidentiality of Data Breach. The existence of, or details surrounding, any data breach or suspected data breach is the Confidential Information of the breached or allegedly-breached party. Neither party will make any public statement identifying or implicating the other party in relation to any data breach or suspected data breach without the prior written consent of an officer of the breached or allegedly-breached party. If Customer or an Individual User believes a data breach has occurred in relation to the Services, Customer and Individual User may promptly contact Compliable via email at email@example.com, and Compliable will promptly investigate.
- Restrictions. Customer and Individual User will not (and will not permit any third party, including as to Customers, its Users, to): (a) sell, rent, assign, sublicense, or distribute the Services, or provide the Services as a commercial hosted service, to any third party; (b) provide access to, or otherwise make available, the Platform or the Services to any third party (except as expressly set forth in Section 2(a); (c) modify, copy, translate, or create derivative works of, the Platform, (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain or derive the source code or non-public APIs or algorithms of the Platform or Services, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Compliable); (e) use the Services to store or transmit malicious or disruptive code; (f) attempt to interfere with or disrupt the integrity or performance of the Services, or to gain unauthorized access to the Platform; (g) exceed the scope of the rights granted in any Order; (h) remove or obscure any copyright labels or proprietary notices contained in the Services or Platform; (i) use the Services in violation of applicable law including violating any third party intellectual property right; and (j) use the Services to benchmark the Services or to build similar or competitive products or services. In addition to other rights that Compliable has in this Agreement and Order, Compliable has the right to take remedial action if the Customer or any User has violated this section, and such remedial action may include suspending or disabling access to the Platform or removing or disabling access to material that violates such section. Compliable shall use commercially reasonable efforts to provide written notice of any remedial action to Customer and to provide updates regarding resumption of access to the Services or material. Compliable shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the cessation of event giving rise to such remedial actions. Customer agrees to, and to cause all Users to, use the Services solely as set forth in this Agreement and the Individual User Terms, and Customer is responsible for the actions of all Users who access the Services through Customer’s account.
- Proprietary Rights.
- Customer Data. Compliable acknowledges that, as between Compliable and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data (excluding Individual User Data). Compliable acknowledges that, as between Compliable and an Individual User, each Individual User owns its Individual User Data.
- License to Customer Data. Subject to the terms of this Agreement, Customer hereby grants to Compliable a non-exclusive, non-sublicensable, non-transferable, revocable and royalty-free license, during the Term, to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Compliable to provide the Services to Customer and support to Customer.
- Security and Privacy Standard.
- Compliable will use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, or disclosure of Customer Data and Individual User Data in accordance with, as to Customers, Compliable’s Data Processing Addendum (“DPA”) located here and incorporated herein by reference.
- Usage Data. Notwithstanding anything to the contrary in this Agreement, Customer agrees that Compliable may collect, compile, and use Usage Data in compliance with applicable law and the Compliable Privacy Notice, including to aggregate and deidentify Usage Data, to compile statistical and performance information related to the provision and operation of the Services, to secure, optimize and improve the Services, and where necessary, support Customer’s use of the Services.
- Compliable IP. As between the parties, Compliable owns and retains all right, title, and interest in (i) the Services; (ii) Platform and the source code and object code and the underlying structure, ideas, know-how or algorithms relevant to the Services; (iii) any software, documentation (including the Documentation), data (other than Customer Data), applications, inventions or other technology related to or developed in connection with the Services; (iv) all improvements, enhancements or modifications to any of the foregoing (whether or not based upon any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Services); (v) Usage Data and any information, data, or other content derived from Compliable’s monitoring of Customer’s access to or use of the Services; and (vi) all intellectual property rights related to any of the foregoing (collectively, “Compliable IP”). Other than as expressly set forth in this Agreement, no license or other rights in any Compliable IP are granted to the Customer.
- Feedback. Compliable may freely use and incorporate into Compliable’s products and services any suggestions, corrections, enhancement requests, or other feedback provided to Compliable by Customer or Users of the Services (“Feedback”), provided that Compliable’s use of such Feedback is deidentified and does not identify Customer or any User in any manner.
- Warranties; Disclaimer.
- Compliable Performance Warranty. During the Term, Compliable warrants that the Services, when used in accordance with this Agreement, will operate in all material respects as described in the Documentation and the applicable Order. In the event of a breach of this warranty, Compliable will use commercially reasonable efforts to correct the reported non-conformity, at no additional charge to Customer, or if Compliable determines such remedy to be impracticable, either party may terminate the applicable Order and Customer will receive a prorated refund of Fees prepaid to Compliable for Customer’s use of the Services for the remainder of the Term. The foregoing remedy shall be Customer’s sole and exclusive remedy for any breach of warranty hereunder.
- Exclusions. The warranty in Section 10(a) shall not apply unless Customer makes a claim within 30 days after the date the defective Services were provided. The warranty also does not apply to any non-compliance, unavailability, or suspension of the Services arising or resulting from: (i) misuse or unauthorized modification or use by Customer that is not in accordance with this Agreement or Documentation, (ii) Compliable’s suspension or termination of Customer’s right to use the Services in accordance with this Agreement; or (iii) Third-Party Applications.
- Customer Warranty. Customer warrants that it has all rights, authorizations, and consents necessary under applicable law to permit the collection and secure transmission of Customer Data as contemplated by this Agreement, including all applicable rights, authorizations, and consents required for use of the Services by Users.
- Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10(a), THE SERVICES AND COMPLIABLE IP IS PROVIDED “AS IS” AND COMPLIABLE HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. COMPLIABLE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. COMPLIABLE DOES NOT WARRANT AGAINST LOSS OR INACCURACY OF DATA OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
- Claims Against Customer. If a claim, suit, or action (“Claim”) is brought against Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnitees”) by a non-affiliated third party and such Claim is based on an allegation that the Software infringes any United States intellectual property rights of such third party (each, a “Customer Claim”), Compliable shall defend the Customer Indemnitees against such Customer Claim and indemnify and hold the Customer Indemnitees harmless, from and against those damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and other legal expenses) (collectively, “Losses”) that are specifically attributable to such Customer Claim or those costs and damages agreed to in a settlement of such Customer Claim. Notwithstanding the foregoing, Compliable will have no liability or obligation under this Section 11 to the extent a claim or action is based on (i) modification of the Platform by any party other than Compliable without Compliable’s express consent; (ii) the combination, operation, or use of the Service or the Platform with other products, data, or services where the Service or the Platform would not by itself be infringing; or (iii) unauthorized or improper use of the Service or Platform. If the use of the Platform by Customer has become, or in Compliable’s opinion is likely to become, enjoined, Compliable may at its option and expense (1) procure for Customer the right to continue using the Platform as set forth hereunder; (2) replace or modify the Platform to make it non-infringing so long as the Service has at least equivalent functionality; (3) use a substitute an equivalent platform for the Service, or (4) if options (1)-(3) are not reasonably practicable in Compliable’s opinion, terminate this Agreement. This Section 11(a) states Compliable’s entire obligation and Customer’s sole remedies in connection with any claim, suit, or action regarding the infringement of intellectual property rights.
- Claims Against Compliable. If a Claim is brought against Compliable and the officers, directors, agents, and employees of Compliable (“Compliable Indemnitees”) by a non-affiliated third party and such Claim that is based upon (i) Customer’s or Compliable’s use of any Customer Data in accordance with this Agreement, and/or (ii) the negligence or willful misconduct of Customer, its Users, or any third party on behalf of Customer in connection with this Agreement (“Compliable Claim”), Customer shall defend the Compliable Indemnitees against such Compliable Claim and Customer shall indemnify and hold the Compliable Indemnitees harmless, from and against those Losses that are specifically attributable to such Compliable Claim or those costs and damages agreed to in a settlement of such Compliable Claim. Notwithstanding the foregoing, Customer will have no obligation under this Section 11(b) or otherwise with respect to any Compliable Claim to the extent the claim or action based upon Compliable’s use of the Customer Data in violation of this Agreement.
- Indemnification Procedure. If a Customer Indemnitee or a Compliable Indemnitee (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Sections 10(a) or 10(b), as applicable, involving any Claim or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the indemnifying party (“Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action that requires the Indemnified Party to pay any monetary amount or make an adverse admission will require the prior written consent of the Indemnified Party, such consent not to be unreasonably withheld or delayed.
- Limitation of Liability.
- EXCEPT FOR THE EXCLUDED CLAIMS (DEFINED BELOW), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (i) NEITHER PARTY SHALL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST OPPORTUNITIES, OR INTERRUPTION OF BUSINESS, OR THE COST TO PROCURE SUBSTITUTE GOODS OR SERVICES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (ii) IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER FOR THE SERVICES IN THE 12 MONTHS PRECEDING THE CLAIM. NOTWITHSTANDING THE FOREGOING, COMPLIABLE SHALL HAVE NO LIABILITY TO INDIVIDUAL USERS. COMPLIABLE IS NOT LIABLE FOR ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, SOFTWARE, OR OTHER MATERIALS AVAILABLE ON OR THROUGH THIRD-PARTY APPLICATIONS, OR FOR THE HANDLING OF YOUR CUSTOMER DATA BY THOSE THIRD-PARTY APPLICATIONS WHETHER OR NOT COMPLIABLE RECOMMENDED SUCH THIRD-PARTY APPLICATIONS.
- THE DISCLAIMERS AND LIMITATIONS SET FORTH IN SECTION 12(A) SHALL NOT APPLY TO: (i) LIABILITY ARISING FROM A BREACH OF THE CONFIDENTIALITY OBLIGATIONS SET FORTH IN THIS AGREEMENT; (ii) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, OR (iii) LIABILITY ARISING OUT OF THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD OF A PARTY OR ITS REPRESENTATIVES (“EXCLUDED CLAIMS”).
- THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE LIMITATIONS SET FORTH IN THIS SECTION 12.
- Insurance. During the Term, Compliable shall maintain at its own expense the following insurance: (a) worker’s compensation insurance in the amount required by statute; (b) comprehensive general liability, with coverage of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate for bodily injury and property damage; (c) professional errors and omissions with a limit of at least $1,000,000 per each claim and $2,000,000 annual aggregate; and (d) cyber security in an amount not less than $500,000. Upon Customer’s request, Compliable shall provide Customer with certificates or other acceptable evidence of insurance evidencing the above coverage.
- Third-Party Applications. The use of Third-Party Applications is subject to and governed by the terms and conditions of such Third-Party Applications. Compliable has no control over and is not liable for the actions of such Third-Party Applications or their owners or agents.
- Independent Contractor. Compliable is acting, in performance of this Agreement, as an independent contractor. Personnel supplied by Compliable hereunder are not Customer employees or agents. Compliable will be solely responsible for the payment of compensation of any of its personnel. Compliable will have no right, power, or authority to create, and will not represent to any person that it has any such power to create, any obligation, express or implied, on Customer’s behalf without the express prior written consent of Customer.
- Assignment. Neither party may assign this Agreement to a third party without the other party’s prior written consent; provided, however, that either party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or attempted assignment by either party otherwise than in accordance with this section will be null and void.
- Notices. All notices required or permitted under this Agreement shall be in writing and shall be delivered by personal delivery, certified overnight delivery, registered mail (return receipt requested), or email and shall be deemed given upon receipt. Notwithstanding the foregoing, notices related to non-payment and termination of this Agreement may not solely be given by email (i.e., such notice may be sent by email and by a second method permitted hereunder). Email notices to Compliable shall be sent to firstname.lastname@example.org and to Customer at the email addresses Customer uses to login to the Services.
- Governing Law; Venue. The Agreement will be governed by the laws of the State of Colorado and the United States without regard to any conflicts of laws principles.
- Compliance with Laws. The parties agree to comply with all laws applicable to the use of the Services and performance of its obligations under this Agreement. The Services and related technology are subject to U.S. export laws and may be subject to export regulations in other countries. Customer agrees not to use or export (directly or indirectly) the Services or related technology in violation of applicable export laws or regulations. Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that has been designated by the U.S. government as a “terrorist supporting” country.
- Remedies. Each party acknowledges that any actual or threatened breach of a party’s confidentiality obligations hereunder or of Customer’s actual or threatened breach of Section 9(b) will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching party agrees to waive any bond that would otherwise be required. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other legal expenses, in addition to any other relief it may receive from the non-prevailing party.
- Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) pursuant to any Order issued hereunder will not be considered a breach of this Agreement or the applicable Order if such delay is caused by an act, event, or occurrence beyond such party’s reasonable control, including, without limitation, natural disasters, fires, floods, storms, landslides, epidemics, lightning, earthquakes, drought, blight, famine, quarantine, blockade, governmental acts or inaction, orders or injunctions, war, insurrection or civil strife, sabotage, explosions, labor strikes, work stoppages, acts of terror, issues arising from bugs or other problems in the software, firmware or hardware of Compliable’s suppliers, or outages or issues with upstream providers, network carriers, and/or third-parties (any such event, a “Force Majeure Event”), provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as commercially feasible.
- 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.
- Entire Agreement. The Agreement is the entire agreement between Compliable and Customer and supersedes all previous written and oral communications between the parties with respect to the subject matter hereof. No varying terms or conditions stated in a purchase order or other ordering document, or process (other than the Order) shall form any part of this Agreement, and all such terms and conditions shall be null and void. The Agreement may only be amended in a writing signed by duly authorized representatives of the parties. If any provision of this Agreement is held to be invalid or unenforceable, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
IN WITNESS WHEREOF, the Parties have executed these Terms and this Agreement on the date(s) set forth below.
[ CUSTOMER ]
Service Level Agreement
The Services shall be available 99.9%, measured monthly, excluding US federal holidays, weekends, and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Compliable’s control will also be excluded from any such calculation. Customer’s sole and exclusive remedy, and Compliable’s entire liability, in connection with Services availability shall be that for each period of downtime lasting longer than one hour, Compliable will credit Customer 5% of Service fees for each period of 30 or more consecutive minutes of downtime; provided, however, that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer recognizes that downtime is taking place and notifies Compliable and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Compliable in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service fees in any one calendar. Compliable will only apply a credit to the month in which the incident occurred. Compliable’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Compliable to provide adequate service levels under this Service Level Agreement.