This Agreement governs your (“Client” or “Teradata”) relationship with Paradox (“Company”) and the use of Company’s Services.
If you register for a trial of Company’s Services, the applicable provisions of this Agreement will also govern that trial.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CLIENT AGREES TO THE TERMS OF THIS AGREEMENT. IF CLIENT IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CLIENT REPRESENTS THAT CLIENT HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" OR “CLIENT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF CLIENT DOES NOT HAVE SUCH AUTHORITY, OR IF CLIENT DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, CLIENT MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the services if you are the Company’s direct competitor, except with Company’s prior written consent. In addition, you may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes; including but not limited to marketing your company, sourcing data, or sourcing leads.
This agreement was last updated on March 27, 2018. It is effective between client and company as of the date of client accepting this agreement.
1. SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this agreement, Company will use commercially reasonable efforts to provide Client the Services set forth in any order form or Statement of Work (“Services”).
1.2 Subject to the terms hereof, Company will provide Client with reasonable technical support services in accordance with Company's standard practice.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Client will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
2.2 Further, Client may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Client represents, covenants, and warrants that Client will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and as provided to Client by Company and all applicable laws and regulations. Client hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Client’s use of Services. Although Company has no obligation to monitor Client’s use of the Services, Company may do so and will notify Client of any violation under the Agreement and provide Client an opportunity to cure before Company prohibits any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Client shall also be responsible for maintaining the security of the Equipment, Client account, passwords (including but not limited to administrative and user passwords and/or PIN) and files, and for all uses of Client account or the Equipment with or without Client’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “receiving party”) understands that the other party (the “disclosing party”) has disclosed or may disclose business, technical or financial information relating to the disclosing party’s business (hereinafter referred to as “proprietary information” of the disclosing party). Proprietary information of company includes non-public information regarding features, functionality and performance of the service. Proprietary information of client includes non-public data provided by client to company to enable the provision of the services (“client data”). The receiving party agrees: (i) to take reasonable precautions to protect such proprietary information, and (ii) not to use (except in performance of the services or as otherwise permitted herein) or divulge to any third person any such proprietary information. The disclosing party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the receiving party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the disclosing party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any proprietary information of the disclosing party or (e) is required to be disclosed by law.
3.2 Client shall own all right, title and interest in and to the Client data. Company shall own and retain all right, title and interest in and to (a) the Services and software, all improvements, enhancements or modifications thereto, and (b) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the services and related systems and technologies (including, without limitation, information concerning client data and data derived therefrom), and company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the services and for other development, diagnostic and corrective purposes in connection with the services and other company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
4.1 Client will pay Company the then applicable fees described in the order form for the services in accordance with the terms therein (the “fees”). If client’s use of the services exceeds the service capacity set forth on the order form or otherwise requires the payment of additional fees (per the terms of this agreement), client shall be billed for such usage and client agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial service term or then current renewal term, upon thirty (30) days prior notice to client (which may be sent by email). If client believes that company has billed client incorrectly, client must contact company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to company’s client support department.
4.2. Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of service. Client shall be responsible for all taxes associated with Services other than U.S. taxes based on company’s net income.
5. TERM AND TERMINATION
5.1. Subject to earlier termination as provided below, this Agreement is for the initial service Term as specified in the order form, and shall be automatically renewed for additional periods of the same duration as the initial service term (collectively, the “term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2. In addition to any other remedies it may have, either party may also terminate this agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Client will pay in full for the services up to and including the last day on which the services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. MUTUAL INDEMNIFICATION
7.1 Indemnification by Company. We will defend Client against any claim, demand, suit or proceeding made or brought against Client by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (a “claim against Client”), and will indemnify Client from any damages, attorney fees and costs finally awarded against Client as a result of, or for amounts paid by Client under a settlement approved by Company in writing of, a claim against Client, provided Client (a) promptly give Company written notice of the claim against Client, (b) give Company sole control of the defense and settlement of the claim against Client (except that Company may not settle any claim against Client unless it unconditionally releases Client of all liability), and (c) give Company all reasonable assistance, at Company expense. If Company receives information about an infringement or misappropriation claim related to a service, Company may in its discretion and at no cost to Client (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching our warranties above, (ii) obtain a license for Client’s continued use of that Service in accordance with this Agreement, or (iii) terminate Client’s subscriptions for that Service upon 30 days’ written notice and refund Client any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a claim against Client arises from content, a Non Paradox or Client’s use of the Services in violation of this Agreement, the documentation or applicable order forms.
7.2 Indemnification by Client. Client will defend Company against any claim, demand, suit or proceeding made or brought against Company by a third party alleging that any Company data infringes or misappropriates such third party’s intellectual property rights, or arises from Client’s use of the Services or Content in violation of the Agreement, the Documentation, Order Form or applicable law (each a “Claim Against Company”), and Client will indemnify Company from any damages, attorney fees and costs finally awarded against Company as a result of, or for any amounts paid by Company under a settlement approved by Client in writing of, a Claim Against Company, provided We (a) promptly give Company written notice of the Claim Against Client, (b) give Company sole control of the defense and settlement of the Claim Against Client (except that Client may not settle any Claim Against Company unless it unconditionally releases Company of all liability), and (c) give Client all reasonable assistance, at Client’s expense.
7.3 Exclusive Remedy. This Section 7 states 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 7.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CLIENT TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Client except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Arizona without regard to its conflict of laws provisions.
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