This Master Service Agreement (this “Agreement") governs the use of the Services (as defined below) by Subscriber (as defined below). This Agreement is accompanied by one or more sales orders (each, a “Sales Order") identifying Subscriber and setting forth certain additional terms and conditions relating to Subscriber’s use of the Services.
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING A SALES ORDER THAT REFERENCES THIS AGREEMENT OR (3) USING FREE SERVICES, SUBSCRIBER AGREES TO THE TERMS OF THIS AGREEMENT.
IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “SUBSCRIBER" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This Agreement was last updated on January 18, 2019 and is effective between Subscriber and Cyndx as of the date of Subscriber’s acceptance of this Agreement.
a) Cyndx Networks LLC is a Delaware limited liability company (“Cyndx") that has developed certain software as a service that is accessible within a secure web environment.
b) Subscriber is a user of Cyndx’s software as a service (“Subscriber" and, together with Cyndx, the “Parties").
a) Cyndx produces and maintains the following software services:
i) Owner, a capitalization table software service that can be accessed at https://owner.cyndx.com;
ii) Raiser, a prospective investor identification software service that can be accessed at https://app.cyndx.com/investors; and
iii) Finder, a company research software service that can be accessed at https://app.cyndx.com/companies.
b) Subscriber’s Sales Order sets forth the software services to which Subscriber has elected to subscribe (the “Services"), the term of the subscription and the fee, if any, to be paid by Subscriber to Cyndx for the subscription (the “Subscription Fee"). The Services are provided as described in, and subject to, any policies referenced in the applicable Sales Order.
c) During the term of the subscription set forth in the applicable Sales Order, Subscriber shall have the non-exclusive, non-transferable, non-assignable, non-sublicensable, worldwide limited right to use the Services and information accessed by the Authorized Users (as defined below) from the Services solely for Subscriber’s internal business operations and subject to the terms of this Agreement (the “Permitted Use").
d) The Services are hosted within a secure web environment that is password-protected. Subscriber is required to identify to Cyndx the users designated to access the Services (such users, the “Authorized Users").
e) To provide the Services, Cyndx may retain the services of third parties to provide limited services on its behalf (such third parties, “Subcontractors"), including without limitation billing, customer support and certain technical back-end services.
f) In the future, Cyndx may make the Services interoperable with web-based, mobile, offline or other software applications provided by Subscriber or third parties (“Non-Cyndx Applications"). When the Services become interoperable with Non-Cyndx Applications, Subscriber may elect, in its sole discretion, to interoperate the Services with Non-Cyndx Applications. Further, Cyndx may make available through the Services certain third-party products or services (“Non-Cyndx Offerings"), which Subscriber may elect, in its sole discretion, to use.
a) Cyndx shall provide Authorized Users with access to the Services following Subscriber’s acceptance of this Agreement, Cyndx’s receipt of any Subscription Fee due and commencement of the term of the subscription set forth in the applicable Sales Order.
b) The Subscription Fee does not include any taxes, levies, duties or similar governmental assessments of any nature, including without limitation sales, value-added, use or withholding taxes assessable in any jurisdiction (collectively, “Taxes"). Subscriber is responsible for paying all Taxes associated with any of Subscriber’s payments for the Services, other than any income Taxes owed by Cyndx. If Cyndx has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this Section 3(b), Cyndx will invoice Subscriber for such amount, and Subscriber will pay that amount unless Subscriber provides Cyndx with a valid tax exemption certificate authorized by the appropriate taxing authority.
c) Cyndx shall send Subscriber an invoice for any fees or other charges, including any applicable portion of the Subscription Fee, due under this Agreement (each such invoice, an “Invoice"). Subscriber shall pay the amount specified on an Invoice on or before the due date specified on such Invoice. If Cyndx has not received payment more than thirty (30) days after the due date specified on the applicable Invoice, Cyndx may, in its sole discretion, assess Subscriber simple interest on the unpaid balance due on such Invoice at the highest rate allowable under the law, with interest beginning to accrue on the due date specified on such Invoice. If payment is not received more than forty-five (45) days after the due date on such Invoice, Cyndx may, in its sole discretion, refer collection of the unpaid balance amount to an attorney or collection agency. If an unpaid balance is referred to an attorney or collection agency for collection, Subscriber shall pay all fees incurred in Cyndx’s attempts to collect the outstanding amount, including, but not limited to reasonable attorney’s fees and collection agency fees.
d) From time to time, Cyndx may adjust the Subscription Fee set forth in the applicable Sales Order for any of the Services. Cyndx shall give Subscriber at least ninety (90) days’ written notice before any such adjustments are made, and Subscriber shall have the option to terminate this Agreement and its access to the Services upon the effective date of such adjustment.
a) Subscriber acknowledges and agrees that Cyndx and its third-party content licensors own all intellectual property rights to the Services. Except as expressly stated herein, this Agreement does not grant Subscriber any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered) or any other rights or licenses in respect of any of the Services.
b) Cyndx represents and warrants that it has all rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
CONFIDENTIALITY AND SUBSCRIBER DATA.
a) Subscriber acknowledges and agrees that Subscriber may come into possession of confidential information pertaining to the Services. The Parties acknowledge and agree that, for purposes of this Agreement, “Cyndx Confidential Information" is any material, data or information in any form or medium that is proprietary or confidential to Cyndx, including without limitation features, functionalities, improvements, code, pricing, business strategies, product roadmaps, developments, marketing materials, Subscriber’s use of the Services, data sets, the terms of this Agreement or any other information disclosed by Cyndx to Subscriber that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure. Cyndx Confidential Information does not include information that (i) is publicly available without a breach of this Agreement by Subscriber; (ii) is reasonably shown to Cyndx’s satisfaction to have been known by Subscriber prior to disclosure or independently developed by Subscriber subsequent to the disclosure without a breach of this Section 5(a); or (iii) is obtained by Subscriber from a third party that, to Subscriber’s knowledge, does not have a confidentiality obligation to Cyndx. Subscriber shall use the same degree of care that it uses to protect its own confidential information (but not less than reasonable care) (i) to use the Cyndx Confidential Information only in connection with the Permitted Purpose and, (ii) except as otherwise authorized by Cyndx in writing, to limit access to Cyndx Confidential Information to those employees or agents of Subscriber who have a need to know the Cyndx Confidential Information to carry on Subscriber’s Permitted Use of the Services and who have signed confidentiality agreements with Subscriber containing protections not materially less protective of the Cyndx Confidential Information than the protections in this Section 5(a). Subscriber acknowledges and agrees that it shall be liable for any disclosure of the Cyndx Confidential Information made by Subscriber’s employees or agents in violation of the terms of this Agreement.
b) Cyndx acknowledges and agrees that during Subscriber’s subscription to the Services, Cyndx may come into possession of certain confidential information. The Parties acknowledge and agree that for purposes of this Agreement, “Subscriber Confidential Information" (together with the Cyndx Confidential Information, the “Confidential Information") is (i) any data or information submitted by or for Subscriber to the Services, including without limitation the Subscriber Data (as defined in Section 5(f) below), (ii) any information regarding Subscriber’s use of the Services or (iii) any other information disclosed by Subscriber to Cyndx that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure. Subscriber Confidential Information does not include information that (i) Subscriber or its Authorized Users opt to make available to other subscribers to, or users of, the Services, including any “company profile" data that Subscriber or its Authorized Users opt to share with other users of the services, (ii) is publicly available without a breach of this Agreement by Cyndx; (iii) was independently developed by Cyndx without a breach of this Section 5(b); or (iv) is obtained by Cyndx from a third party that does not have a confidentiality obligation to Subscriber. Subject to the license granted by Subscriber under Section 5(f) of this Agreement, Cyndx shall use the same degree of care (but not less than reasonable care) that Cyndx uses to protect its own confidential information (i) to use the Subscriber Confidential Information only to provide the Services and, (ii) except as otherwise authorized by Subscriber in writing, to limit access to Subscriber Confidential Information to those employees or agents of Cyndx who have a need to know the Subscriber Confidential Information to enable Subscriber to carry on the Permitted Use of the Services and who have signed confidentiality agreements with Cyndx containing protections not materially less protective of the Subscriber Confidential Information than the protections in this Section 5(b). Cyndx acknowledges and agrees that it shall be liable for any disclosure of the Subscriber Confidential Information made by Cyndx’s employees, agents or Subcontractors in violation of the terms of this Agreement.
d) Notwithstanding Sections 5(a) and 5(b) above, nothing in this Section 5 should be construed to prohibit either Party from disclosing Confidential Information if required by applicable law or regulation or by legal process (including interrogatory, subpoena, civil investigative demand or similar process), upon the request of, or demand from, the United States Securities and Exchange Commission (the “SEC"), the Financial Industry Regulatory Authority (“FINRA") or any state securities commission or equivalent agency or self-regulatory organization exercising jurisdiction over Subscriber or Cyndx, or upon the request of, or demand from, a federal or state government entity, or valid court order as required by law. Each Party acknowledges and agrees that it shall, in accordance with any applicable law or regulation, provide the other Party with notice of any such request or demand for Confidential Information before disclosure, and use reasonable measures to assist the other Party with its efforts, at the expense of the Party subject to such request or demand, to obtain confidential treatment by the authority requesting or demanding the Confidential Information.
e) Subscriber acknowledges and agrees that by accessing the data in the Services, Subscriber benefits from data regarding previous transactions archived and accessed through the Services. Subscriber acknowledges and agrees that for the Services to be most effective, the Services must process data derived from all of the data entered into the Services by Subscriber and other subscribers to the Services, in addition to information collected from third-party databases, as well as other sources including without limitation local, state and federal government filings (the “Third-Party Content").
f) In consideration for obtaining access to the Services and the data available through the Services, Subscriber acknowledges and agrees that it grants to Cyndx a non-exclusive, worldwide, irrevocable, perpetual and royalty-free license to the data entered into the Services by Subscriber (“Subscriber Data"). Subscriber acknowledges and agrees that it has no expectation that Subscriber Data will not be used by Cyndx to improve the Raiser, Finder and Owner products, including by enhancing Cyndx’s proprietary search algorithms.
g) Notwithstanding Section 5(e) above, Cyndx shall process the Subscriber Data in a manner that renders the form and source of the Subscriber Data unidentifiable to any other subscriber or unauthorized third party and that protects the right of Subscriber to maintain the confidentiality of Subscriber Confidential Information, as set forth in Section 5(b) above.
h) In the event of any loss or damage to any Subscriber Data, Subscriber’s sole and exclusive remedy shall be for Cyndx to use commercially reasonable efforts to restore the lost or damaged Subscriber Data from the latest back-up of such Subscriber Data maintained by Cyndx in accordance with Cyndx’s archiving policies and procedures.
i) Cyndx shall not be responsible for any loss, destruction, alteration or disclosure of Subscriber Data caused by any third party (except those third parties sub-contracted by Cyndx to perform services related to Subscriber Data maintenance and back-up).
j) Subscriber grants to Cyndx an irrevocable, perpetual, worldwide, royalty-free right to include Subscriber’s name and logo in Cyndx’s marketing, promotional materials and customer lists, upon the prior written approval of Subscriber in each instance. During the term of Subscriber’s subscription to the Services, Subscriber may include Cyndx’s name and logo in its vendor lists.
k) This Section 5 shall survive the termination of this Agreement.
Cyndx acknowledges and agrees that:
a) Power and Authority. Cyndx possesses the power and authority to execute and perform the services required pursuant to this Agreement.
b) Service Level. Cyndx warrants that the Services will be available to Subscriber for at least 99% of the total time within any calendar month (any time during which the Services are available to Subscriber, “Uptime").
i) If Uptime constitutes less than 99% of the total time but at least 90% of the total time within any calendar month, Cyndx shall credit Subscriber for 10% of the portion of the Subscription Fee owed by Subscriber for such calendar month or, if the Subscription Fee is fully paid, refund 10% of such portion of the Subscription Fee to Subscriber.
ii) If Uptime constitutes less than 90% of the total time in any calendar month, Cyndx shall credit Subscriber for the entire portion of the Subscription Fee owed for such calendar month or, if the Subscription Fee is fully paid, refund the entire such portion of the Subscription Fee to Subscriber.
iii) For purposes of this Section 6(b), time during which the Services are unavailable as a result of Subscriber’s, or Subscriber’s agents’ or contractors’, use or modification of the Services contrary to Cyndx’s instructions shall be Uptime.
c) Security. Cyndx shall implement and maintain reasonable administrative, physical, and technical safeguards and measures, including without limitation encrypting Subscriber Data (as defined below) in transit and at rest, and disaster recovery procedures that are reasonably designed to protect the security and integrity of Subscriber Data and protect against unauthorized access to such Subscriber Data. In no event during the term of this Agreement shall Cyndx diminish the protections provided by Cyndx’s presently configured safeguards.
d) No Responsibility for Non-Cyndx Applications or Non-Cyndx Offerings; No Guarantee of Interoperability with Non-Cyndx Applications. Cyndx shall have no responsibility for any use by Subscriber of a Non-Cyndx Application or Non-Cyndx Offering. Cyndx does not support or warrant any Non-Cyndx Application or Non-Cyndx Offering, unless otherwise provided in the applicable Sales Order. Cyndx does not guarantee the continued interoperability of the Services with any Non-Cyndx Application, and Cyndx may cease to support interoperability of the Services with any Non-Cyndx Application without entitling Subscriber to any refund, credit or other compensation if, for example and without limitation, the provider of a Non-Cyndx Application ceases to make the Non-Cyndx Application available for interoperation with the Services in a manner acceptable to Cyndx.
Subscriber acknowledges and agrees that:
a) Power and Authority. Subscriber possesses the power and authority to enter into this Agreement and to use the Services pursuant to this Agreement.
b) Compliance with Laws. Subscriber either possesses, or will obtain before marketing or effecting any transaction using the Services, all of the necessary authorizations, licenses and registrations required to effect Subscriber’s or Subscriber’s clients’ proposed transaction or transactions under United States federal and state law; the laws of any foreign or transnational governmental entity (including rules enforced by any competition or regulatory authority) exercising jurisdiction over Subscriber; and the rules of any self-regulatory organizations exercising jurisdiction over Subscriber.
c) Securities Transactions. If Subscriber intends to use the Services in connection with any transaction involving Securities (as defined in the United States Securities Act of 1933, as amended, or the “Securities Act"), Subscriber shall be solely responsible for Subscriber’s and its Authorized Users’ use of the Services to effect offers or sales of Securities, and Subscriber acknowledges and agrees that:
i) Cyndx shall bear no liability for any failure by Subscriber to comply with the U.S. securities laws, any regulations promulgated thereunder and any other securities laws or regulations applicable to Subscriber;
ii) Cyndx will not participate, directly or indirectly, in any offer or sale of Securities that Subscriber or its Authorized Users effect or attempt to effect;
iii) Cyndx is neither a broker-dealer registered with the SEC nor a member of FINRA and thus will not act as placement agent or underwriter for any offering of Securities effected by Subscriber or Subscriber’s clients;
iv) Cyndx is not a transfer agent registered with the SEC;
v) the Services may not be used to perform the functions of a transfer agent with respect to any Securities registered under Section 12 of the United States Securities Exchange Act of 1934, as amended (the “Exchange Act"), or any securities that would be required to be registered under Section 12 of the Exchange Act but for the exemptions set forth in Sections 12(g)(2)(B) and 12(g)(2)(G) of the Exchange Act;
vi) the Services are not, and do not provide, investment advice;
vii) a reference to any issuer, investment or security within the Services neither constitutes a recommendation to make any investment decision nor addresses the suitability of an investment or security; and
viii) the success or failure of Subscriber or Subscriber’s client’s ability to raise capital or identify strategic partners and complete any securities transaction depends on numerous factors and will not be attributable to either Cyndx or the efficacy of the Services.
Cyndx makes no representation as to the merits, soundness or suitability of any contemplated Securities transaction, and Cyndx shall bear no responsibility for the completion of any contemplated Securities transaction.
d) Broker-Dealer Obligations. If Subscriber is a registered broker-dealer pursuant to Section 15(g) of the Exchange Act, Subscriber shall bear sole responsibility for any applicable requirement to monitor transactions executed through the Services for any suspicious activity and, to the extent required, filing a Suspicious Activity Report in accordance with the terms of Section 356 of the USA PATRIOT Act.
e) Technical Coordination with Cyndx. Subscriber shall allocate the resources and personnel reasonably required to coordinate with Cyndx’s technicians the implementation, operation, maintenance and training of Subscriber’s personnel for the appropriate use of the Services. Subscriber shall provide access to such information as may be reasonably required by Cyndx in order to provide access to the Services, including without limitation transaction data, security access information and configuration services. Subscriber is responsible for the compliance of its network and systems with the relevant specifications provided by Cyndx, as reasonably amended from time to time. Subscriber is responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Services, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Subscriber’s network connections or telecommunications links or caused by the internet.
f) Third Parties. This Agreement shall not prevent Cyndx from entering into similar agreements with third parties, or from independently developing, using, selling or licensing any of the Services or other services with other financial intermediaries.
g) Authorized Users. Under this Agreement, the Authorized Users may access and use the Services only in accordance with the terms and conditions of this Agreement, and Subscriber assumes liability for any Authorized User’s breach of this Agreement, including the sharing of login credentials by any Authorized User with any person who is not an Authorized User.
h) Intellectual Property. Subscriber shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties and except to the extent expressly permitted under this Agreement:
i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, publish, download, display, transmit or distribute all or any portion of the Services software in any form or medium or by any means;
ii) attempt to reverse compile, disassemble, reverse engineer or derive source code, processes, algorithms, techniques or other information from any part of the Services;
iii) access the Services to build a product or service which competes with any of the Services;
iv) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorized Users; or
v) attempt to obtain, or assist third parties in obtaining, access to the Services other than as provided under the terms of this Agreement.
SUBSCRIBER’S FEEDBACK ON THE SERVICES.
a) The Parties acknowledge and agree that, except as set forth in Section 6(b) of this Agreement, Cyndx makes no representations and warranties as to the level of service that Cyndx shall provide to Subscriber.
b) Subscriber may provide periodic commentary to Cyndx regarding the performance, accessibility, functionality and user experience of the Services, including without limitation reports of errors, defects or suggestions for improvement regarding, or complaints about, the format, functionality and operability of the Services (the “Commentary"). Subscriber acknowledges and agrees that any improvements to the Services that are developed directly or indirectly from the Commentary shall be the sole and exclusive property of Cyndx.
a) Subscriber shall defend Cyndx against any claim, demand, suit or proceeding made or brought against Cyndx by any third party arising out of or in connection with Subscriber’s use of the Services, including, but not limited to actions for fraud, misrepresentation or lack of suitability of a particular investment or transaction, or any action made or brought against Cyndx by any third party alleging that any of the content of the information materials made available by Subscriber through the Services infringes upon or misappropriates such third party’s intellectual property rights and will indemnify Cyndx from any damages, attorney fees and costs finally awarded against Cyndx as a result of, or for amounts paid by Cyndx under a settlement approved by Subscriber in writing of, such claim, demand, suit or proceeding, provided that:
i) Subscriber is given prompt written notice of any such claim, demand, suit or proceeding;
ii) Cyndx provides reasonable co-operation to Subscriber in the defense and settlement of any such claim, at Subscriber’s expense; and
iii) Subscriber is given sole authority to defend or settle any such claim, demand, suit or proceeding (except that Subscriber may not settle any such claim, demand, suit or proceeding unless the settlement unconditionally releases Cyndx of all liability).
b) Cyndx shall defend Subscriber against any claim, demand, suit or proceeding made or brought against Subscriber by any third party alleging that any portion of Services infringes upon or misappropriates such third party’s intellectual property rights and will indemnify Subscriber from any damages, attorney fees and costs finally awarded against Subscriber as a result of, or for amounts paid by Subscriber under a settlement approved by Cyndx in writing of such claim, demand, suit or proceeding, provided that:
i) Cyndx is given prompt written notice of any such claim, demand, suit or proceeding;
ii) Subscriber provides reasonable co-operation to Cyndx in the defense and settlement of any such claim, at Cyndx’s expense; and
iii) Cyndx is given sole authority to defend or settle any such claim, demand, suit or proceeding (except that Cyndx may not settle any such claim, demand, suit or proceeding unless the settlement unconditionally releases Subscriber of all liability).
c) If Cyndx receives information about an infringement or misappropriation claim related to one or more of the Services, Cyndx may, in its sole discretion and at no cost to Subscriber,
i) modify the Service at issue so that it is no longer subject to a claim of infringement or misappropriation, provided that such modification does not result in a breach of Cyndx’s warranties hereunder;
ii) obtain a license for Subscriber’s continued use of the Service at issue in accordance with this Agreement; or
iii) terminate Subscriber’s subscription to the Service at issue upon thirty (30) days’ written notice and refund Subscriber any prepaid fees covering the remainder of the term of the terminated subscription.
d) The obligations in Sections 9(b) and 9(c) above do not apply to the extent a claim, demand, suit or proceeding arises from Third-Party Content, a third-party application that Subscriber uses with the Services or Subscriber’s use of the Services in violation of this Agreement, or from the gross negligence or willful misconduct of either Party.
e) This Section 9 sets forth the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other party for any type of claim described in this Section 9.
f) This Section 9 shall survive the termination of this Agreement.
LIMITATIONS OF LIABILITY
a) CYNDX DOES NOT WARRANT THAT SUBSCRIBER’S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR THAT THE SERVICES OR THE INFORMATION OBTAINED BY SUBSCRIBER THROUGH THE SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS, AND IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR ANY OTHER LOSS OR DAMAGE RESULTING FROM THE TRANSFER OF DATA OVER COMMUNICATIONS NETWORKS OR FACILITIES, INCLUDING WITHOUT LIMITATION THE INTERNET AND ANY THIRD-PARTY DATA HOSTING SERVICE, AND SUBSCRIBER ACKNOWLEDGES THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.
b) CYNDX, ITS AFFILIATES AND ITS THIRD-PARTY LICENSORS MAKE NO WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, AS TO THE ACCURACY, ADEQUACY, TIMELINESS OR COMPLETENESS OF THE SERVICES WITH RESPECT TO ANY DATA, INFORMATION, OR SOFTWARE CONTAINED THEREIN, OR FOR THE RESULTS OBTAINED BY ITS USE OR AS TO PERFORMANCE THEREOF. CYNDX, ITS AFFILIATES AND ITS LICENSORS MAKE NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND SHALL NOT BE SUBJECT TO ANY DAMAGES OR LIABILITY FOR ANY ERRORS OR OMISSIONS IN THE SERVICES.
c) ALL COMPONENTS OF THE SERVICES ARE PROVIDED ON AN “AS IS" BASIS, AND SUBSCRIBER’S USE OF THE SERVICES IS AT SUBSCRIBER’S OWN RISK.
d) SUBJECT TO SECTION 9 OF THIS MASTER SERVICES AGREEMENT, IN THE EVENT THAT A COURT OR ARBITRATOR DETERMINES THAT A PARTY IS LIABLE TO THE OTHER PARTY FOR DIRECT DAMAGES IN ANY ACTION RELATING TO THE PROVISION OF THE SERVICES UNDER THE TERMS OF THIS AGREEMENT, THE PARTIES ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER OR ITS AFFILIATES UNDER THIS AGREEMENT FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
e) IN NO EVENT WILL CYNDX OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
EUROPEAN UNION PRIVACY OBLIGATIONS.
TERM AND TERMINATION.
a) The term of this Agreement commences at the beginning of the earliest subscription set forth in a Sales Order and continues until all subscriptions described in a Sales Order have expired or have been terminated. Except as otherwise specified in a Sales Order, subscriptions will automatically renew for additional periods equal in length to the expiring subscription term, unless either Cyndx or Subscriber gives the other written notice of non-renewal at least 30 days before the end of the relevant subscription term.
b) Subscriber may terminate this Agreement immediately:
i) if Subscriber notifies Cyndx in writing of a material breach of this Agreement, and if such breach remains uncured by Cyndx after a period of thirty (30) days; or
ii) if Cyndx becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
c) Cyndx may terminate this Agreement immediately:
i) if Cyndx reasonably believes that Subscriber is using the Services to commit an illegal act;
ii) if Cyndx notifies Subscriber in writing of a material breach of this Agreement, and if such breach remains uncured by Subscriber after a period of thirty (30) days; or
iii) if Subscriber becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
d) If this Agreement is terminated by Subscriber in accordance with Section 12(b), Cyndx will refund to the extent applicable, any prepaid fees covering the remaining portion of the term.
e) If this Agreement is terminated by Cyndx in accordance with Section 12(c), Subscriber will pay any unpaid fees, to the extent applicable, covering the period prior to such termination. In no event will termination relieve Subscriber of its obligation to pay any fees payable to Cyndx for the period prior to the effective date of termination.
f) Upon termination of this Agreement:
i) Subscriber’s, and any Authorized Users’, access to the Services granted under this Agreement shall immediately end;
ii) Cyndx shall retain a copy of Subscriber Data in its possession, which shall remain subject to Section 5 of this Agreement in all respects;
iii) subject to Subscriber’s satisfactory payment of all outstanding Subscription Fees, to the extent applicable, Subscriber shall receive a copy of Subscriber Data within thirty (30) days of the date of termination; and
iv) the accrued rights of the Parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
Cyndx shall have no liability to Subscriber under this Agreement if Cyndx is prevented from, or delayed in, performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving Cyndx’s workforce or that of any other party); failure of a telecommunications network, internet service provider or utility service; act of God; war; riot; civil commotion; malicious damage; compliance with any law or governmental order, rule, regulation or direction; accident; breakdown of plant or machinery; fire; flood; storm; or default of Cyndx or its sub-contractors, provided that Cyndx notifies Subscriber of such an event and its expected duration.
a) A waiver of any right under this Agreement is only effective if it is in writing, and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given.
b) Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
a) If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
b) If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.
ENTIRE AGREEMENT; ORDER OF PRECEDENCE; AMENDMENT.
a) This Agreement, along with any terms or conditions stated in an applicable Sales Order, constitutes the whole agreement between the Parties regarding Subscriber’s use of the Services, and supersedes any previous arrangement, understanding or agreement between them, relating to the subject matter hereof. Each of the Parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement or an applicable Sales Order.
b) In the event of any conflict or inconsistency between this Agreement and a Sales Order, such Sales Order shall control.
c) This Agreement and may be amended, modified or supplemented at any time in writing and signed (digitally or manually) by authorized representatives of the Parties.
Neither Party shall, without the prior written consent of the other, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
THIRD PARTY RIGHTS.
This Agreement does not confer any rights on any person or party other than the Parties and, where applicable, their successors and permitted assigns.
Except as otherwise expressly provided, all notices, requests, demands or consents under this Agreement must be in writing, and be delivered personally, by certified mail, or by a recognized courier service to the addresses of the Parties set forth in this Agreement, or by e-mail.
If to Cyndx:
Cyndx Networks LLC
757 Third Avenue, Suite 1502
New York, New York 10017
Attention: General Counsel
If to Subscriber, to the person or persons, at the mailing or email addresses, indicated on an applicable Sales Order.
GOVERNING LAW AND DISPUTE RESOLUTION.
a) This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation, including without limitation any non-contractual dispute or claim arising in connection with the subject matter hereof or any dispute concerning the arbitrability of a dispute or claim pursuant to this Section 20 (a “Dispute"), are governed by, and construed in accordance with, the laws of the State of New York.
b) The Parties acknowledge and agree that any Dispute shall be referred to and finally determined by arbitration in New York, New York before one arbitrator. Such arbitration shall be administered by JAMS in accordance with its Comprehensive Arbitration Rules. Judgment on any award granted in such arbitration may be entered in any court having jurisdiction. This clause shall not preclude Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.