Last updated July 2026

Terms and Conditions

1. General

  1. These Terms and Conditions (the “Terms”) govern the provision and use of any Services or Results described in any order form executed by the parties (each, an “Order Form”) between the service provider identified in the Order Form (“Provider”) and the customer identified in the Order Form (“Customer” or “you” or “your”).
  2. The Terms include the provisions listed in these Terms, the Order Form(s), and any exhibits, appendices, schedules, statements of work, or addenda attached or incorporated by reference.
  3. By entering into an Order Form, using the Services or Results, and/or accessing the Provider Platform, you are indicating your acceptance of these Terms as a binding agreement. You represent that you have the authority to bind Customer and, if applicable, its Affiliates to these Terms.

2. Definitions and Interpretation. In these Terms, the following terms will have the meanings set forth below:

  1. “Addendum” or “Addenda” means any addendum attached or incorporated into these Terms, including but not limited to any Data Processing Agreement, Business Associate Agreement, Order Form or other addenda attached or incorporated by reference. Each Addendum may, among other things, set forth additional provisions, terms or conditions regarding the specific Services or Information to be provided to Customer under an Order Form.
  2. “Affiliate” with respect to any person, any other person that is directly or indirectly Controlling, Controlled by, or under common Control with such person, where “Control” and derivative terms mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.
  3. “AI Technology” means any and all machine learning, deep learning, and other artificial intelligence technologies, including statistical learning algorithms, models (including large language models), neural networks, and other artificial intelligence tools or methodologies, all software implementations of any of the foregoing, and related hardware or equipment.
  4. “BAA” has the meaning set forth in Section 17.14.
  5. “Confidential Information” means any non-public information disclosed by one party (“Disclosing Party”) to the other (“Receiving Party”), whether in writing or orally, that is designated as confidential or should reasonably be understood to be confidential given the nature of the information and the circumstances of the disclosure, including but not limited to these Terms, pricing, marketing information, prospective plans, Customer Data, Personal Information, Provider Technology, Feedback, trade secrets, product information, financial information, business and technology processes and requirements, know-how, processes, and non-public third-party information.
  6. “Customer Data” means any data, information, or material provided or submitted by or on behalf of Customer or its Users to Provider in connection with the Services or otherwise under these Terms.
  7. “Customer Marks” has the meaning set forth in Section 3.2.
  8. “Data Manager” has the definition set forth in Section 6.1.
  9. “DPA” has the meaning set forth in Section 4.6.
  10. “Data Protection Laws” means all applicable federal, state, territorial, and local laws, rules, regulations, and governmental requirements relating in any way to the privacy, confidentiality, or security of Personal Information that otherwise applies to Provider’s processing of Personal Information under these Terms.
  11. “Deidentified Data” means Customer Data, Personal Information, or constituent data or information that due to the application of administrative and technical measures, cannot reasonably be used to identify a company or an individual, and is not linked or reasonably linkable to, an identified or identifiable individual, or a device linked or reasonably linkable to that individual. For the avoidance of doubt, Deidentified Data is not Personal Information.
  12. “Disclosing Party” has the meaning set forth in Section 2.4.
  13. “Documentation” means Provider’s current written or online materials or instructions describing the functionality and use of the Provider Technology.
  14. “Feedback” has the meaning set forth in Section 9.3.
  15. “Fees” has the meaning set forth in Section 8.1.
  16. “FERPA” has the meaning set forth in Section 4.4.
  17. “Force Majeure Event” has the meaning set forth in Section 17.10.
  18. “GDPR” means the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016.
  19. “GDPR DPA” has the meaning set forth in Section 4.6.
  20. “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, trojan horse, backdoor, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, data, database, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby; or (b) prevent Provider, Customer or any User from accessing or using the Services, Results, or Provider Technology.
  21. “Initial Term” has the meaning set forth in Section 14.1.
  22. “Intellectual Property Rights” means all U.S. and foreign (whether statutory or non-statutory) copyrights, patent rights, trademark rights, proprietary rights in information and data, including trade secrets and know how, and moral rights and other personal rights in inventions and original works (whether or not patented and whether or not reduced to practice), and all other intellectual and industrial property claims and rights, including all applications and registrations with respect thereto and goodwill associated therein.
  23. “Objection Period” has the meaning set forth in Section 6.5.
  24. “Personal Information” means (a) any information or data that identifies, is linked with, relates to, describes or could reasonably be linked or associated, directly or indirectly, with an identified or identifiable individual, person or household and (b) without limiting the generality of the foregoing, any other information that constitutes “personal information,” “personal data,” or any analogous concept under Data Protections Laws.
  25. “PHI” has the meaning set forth in Section 4.3.
  26. “Platform Performance Statistics” has the meaning set forth in Section 5.3.
  27. “Provider Marks” has the meaning set forth in Section 9.2.
  28. “Provider Platform” means the software made available to Customer as a Service to, among other things, help understand, identify and segment constituents in order to drive engagement, research and fundraising results.
  29. “Provider Technology” means all of Provider and Provider’s Affiliates’ respective proprietary technology, including Provider’s platform, and other software, hardware, products, processes, AI Technology, Training Data, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information, together with any derivative works or improvements of such proprietary technology.
  30. “Receiving Party” has the meaning set forth in Section 2.6.
  31. “Renewal Term” has the meaning set forth in Section 14.1.
  32. “Results” means the information and data derived from Provider’s analysis of the Customer Data.
  33. “Security Incident” has the meaning set forth in Section 10.5.
  34. “Services” means the services specified in an Order Form, including implementation, configuration, access to Provider Technology, data analysis/enhancement, research, support, and any Third-Party Data provided via the Services.
  35. “Subcontractor” has the meaning set forth in Section 6.4.
  36. “”Subprocessor” means any person or entity, other than an employee or Affiliate of Provider, engaged by Provider to process Personal Information in connection with these Terms.
  37. “Subscription Start Date” means the applicable subscription start date as set forth in the Order Form.
  38. “Term” has the meaning set forth in Section 14.1.
  39. “Third-Party Data” means data provided by a third party that Provider makes available to Customer via the Services or Results.
  40. “Training Data” means any and all information, data, materials, text, prompts, images, and other content that is used to train, validate, test, retrain, tune, modify, update, or otherwise improve any AI Technology, except for Customer Data.
  41. “Updates” means any updates, patches, fixes, maintenance releases and the like that Provider may download, install, or otherwise incorporate into the Provider Technology, in its sole discretion, consistent with stated operational standards, as applicable.
  42. “User” means Customer’s employees, Customer’s representatives, consultants or contractors, or any agents acting on behalf of Customer, in each case who are authorized to use the Services or Results and have been supplied user identification and passwords by Customer or by Provider at Customer’s request.
  43. [“VPAT” has the meaning set forth in Section 17.2.]
  44. Interpretation. For purposes of interpreting these Terms, (i) unless the context otherwise requires, the singular includes the plural, and the plural includes the singular; (ii) unless otherwise specifically stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to these Terms as a whole and not to any particular section or paragraph; (iii) the words “include” and “including” will not be construed as terms of limitation, and will therefore mean “including but not limited to” and “including without limitation”; and (iv) unless otherwise specifically stated, the words “writing” or “written” mean preserved or presented in retrievable or reproducible form, whether electronic (including email but excluding voice mail) or hard copy.

3. Implementation.

  1. Promptly after the Subscription Start Date, Customer will provide Provider with information, resources and assistance as necessary to enable Provider to customize and implement, as applicable, the Provider Technology for Customer’s purposes. If any such configuration and/or implementation involves interfacing or connecting the Provider Technology to Customer’s systems including any third-party system operated by or on behalf of Customer, Customer will be responsible for ensuring that Provider has the right and ability to connect to such systems, for obtaining the consent of the owner or controller of the third-party system, for facilitating access to application programming interfaces (APIs) and other interfaces, and for notifying Provider, at least thirty (30) days prior to Provider Technology interfacing or connecting with such systems, in writing of any conditions or restrictions that apply to such connection or interface. Provider will not be responsible for any error, defect, or failure of the Services or Results due to errors, inaccuracies, or mistakes in the Customer Data, Customer’s systems or third-party systems, or Customer’s written notification of conditions and restrictions.
  2. Customer Marks. If the configuration or implementation of the Provider Technology described in Section 3.1 involves the incorporation of Customer’s name, logo or similar indicia (“Customer Marks”) into the Provider Technology, Customer hereby grants Provider the non-exclusive right and license to use and display the Customer Marks, solely during the Term, in furtherance of these Terms, and for no other purpose. Provider obtains no rights in the Customer Marks except for the limited right described in the preceding sentence, and Customer retains all right, title and interest in the Customer Marks. All use of the Customer Marks by Provider. and all goodwill associated with such use, will inure to the benefit of Customer.  Provider agrees to comply with Customer’s trademark branding guidelines that are provided to Provider in writing in connection with such usage.

License; Use Restrictions; Prohibited Data.

  1. License. Subject to these Terms and Customer’s compliance with these Terms, commencing on the Subscription Start Date, Provider hereby grants to Customer a non-transferable, non-exclusive, worldwide right, during the Term, under its (and, only to the extent applicable, its Affiliates’) Intellectual Property Rights, to use (and to authorize its Users to use) the Services or Results, and any Provider Technology that is incorporated into the Services or Results (including any direct marketing list, model, analysis, code or report which utilizes or was derived from the Results), solely for the purposes expressly authorized under the applicable Order Form, or if no purposes are specified, then for Customer’s internal business operations related to community relations (including fundraising and development purposes). Client acknowledges that Provider, or the data owners who provided the Confidential Information to Provider, own the Confidential Information, and these Terms are not intended to and do not grant, expressly or by implication, to Customer any right or license to any Intellectual Property Right or similar proprietary right of any kind.
  2. Restrictions. Customer will not (and will use commercially reasonable practices and controls to ensure that Users do not): (i) use the Services, Results or Provider Technology except as expressly authorized by Provider; (ii) license, sublicense, sell, resell, transfer, assign, distribute, hypothecate, lease, loan or otherwise convey, commercially exploit or make available to any third-party the Services, Results or Provider Technology except as expressly authorized in these Terms, subject to the Documentation; (iii) send or otherwise make available to Provider or its Affiliates any Harmful Code, or otherwise interfere with or disrupt the integrity or performance of the Services, Results, or Provider Technology; (iv) modify the Services, Results or Provider Technology, incorporate the Services, Results or Provider Technology in whole or in part in any other product or create derivative works based on all or part of the Services, Results or Provider Technology; (v) attempt to compromise, circumvent or invalidate any security device or protection for the Services or Provider Technology; (vi) reverse-engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas, Training Data, AI Technology, or algorithms of the Provider Technology or other Services; (vii) upload to or transmit from or through the Services anything that, if reproduced, published, transmitted or used, may be defamatory, threatening, abusive, obscene, harmful or invasive of anyone’s privacy, may violate any law (including copyright, trade-mark and privacy laws) or may give rise to civil or other liability; (viii) except as permitted by the applicable Documentation or otherwise by Provider in writing, use the Services for spamming, extraneous advertising, extraneous bulk message transmission, or other similar activity objectionable to Provider in its sole discretion; (ix) attempt to access any of Provider’s or its Affiliates’ systems, programs or data that are not licensed under these Terms or any Order Form; (x) access or use the Services or Results for the ‎purpose of building a competitive product or service or copying its features or user ‎interface;‎ or (xi) access or use the Services or Results, or permit them to be accessed or used, for purposes of ‎product evaluation, benchmarking or other comparative analysis intended for publication ‎without Provider’s prior written consent. For the avoidance of doubt, nothing contained in these Terms will preclude or prohibit Customer from making updates to Customer’s IT infrastructure, provided that any such activities do not conflict with the restrictions set forth in this Section 4.2.
  3. PHI. Customer agrees that it will not upload protected health information (“PHI”), as that term is defined by the Health Insurance Portability and Accountability Act of 1996) (“HIPAA”) into the Provider Technology, the Services or Results, and that furthermore it will not use the Provider Technology or the Services or Results in any way to transmit, view, access, or store any PHI. In no event will Provider or its Affiliates be responsible for Customer’s failure to comply with this Section 4.3.
  4. FERPA. This Section 4.4 applies if Customer is an educational agency or institution subject to the Family Educational Rights and Privacy Act (20 U.S.C. § 1232g) and the regulations promulgated thereunder (34 CFR Part 99) (collectively, “FERPA”) and the Customer Data is subject to FERPA. Provider acknowledges that, for the purposes of providing the Services, Provider is a “school official” (as defined by FERPA) with “legitimate educational interests” in the Customer Data, and Provider agrees to abide by the limitations and requirements imposed by FERPA on a school official.
  5. Payment Cards. Customer agrees that during the course of its engagement it will not upload into the Provider Technology or the Services any credit, debit, or other payment cardholder information, and that furthermore it will not use the Provider Technology or the Services in any way to transmit, view, access, or store any such cardholder information. Provider does not comply with the Payment Card Industry Data Security Standard (“PCI DSS”) requirements and in no event will Provider or its Affiliates be responsible for Customer’s failure to comply with the foregoing.
  6. Personal Information. To the extent the Customer Data contains any Personal Information, Provider’s Data Processing Addendum (“DPA”) will apply and is hereby incorporated by reference. Moreover, to the extent a Customer or such Personal Information provided by Customer is subject to GDPR, Customer shall complete and execute the Provider’s GDPR Data Processing Addendum (“GDPR DPA”), in which case such addendum will apply and is incorporated by reference. Customer acknowledges that Provider may update the DPA and/or the GDPR DPA in Provider’s sole discretion from time to time, and may notify Customer of any such update by any reasonable means, including by posting such updated DPA and/or GDPR DPA on Provider’s website.
  7. Applicability of GDPR. Unless and until the Provider executes the GDPR DPA:
    • Customer shall not submit, upload, transfer, otherwise make available to, or include in Customer Data provided to Provider any information that constitutes “personal data” as defined under the GDPR or that would otherwise cause the Services to be subject to the GDPR.
    • Customer acknowledges and agrees that the Services are not designed or intended to process personal data subject to the GDPR and that the GDPR does not apply to Provider, the Services, Customer Data, or the Results.
    • Customer further acknowledges and agrees that Provider does not have any obligations under the GDPR pursuant to this Agreement.
    • If Customer becomes aware that it has provided “personal data” as defined under the GDPR, Customer shall promptly notify Provider and cooperate to remove or delete such data.
    • If Customer breaches this Section 4.7, Provider may suspend the applicable processing, require the removal or deletion of such data, and, to the extent permitted by law, delete such data. Provider has no obligation to maintain or return such data.
  8. User Logins. User logins are for authorized Users only and cannot be shared or used by more than one individual User.

5. Deidentified Data; Performance Statistics.

  1. Deidentified Data. Customer hereby grants Provider a license giving Provider the right to access, aggregate, compile and utilize Deidentified Data for purposes of research, development of products and services, enhancement of products and services, incorporation into Training Data, statistical analysis, benchmarking, measuring, and/or comparing such Deidentified Data. Customer may opt out at any time, but this may impact certain components of the Provider Technology whereby the Customer may see a reduction of service within the Provider Technology and thus is not entitled to any refund of any applicable fees paid to Provider, nor will it qualify as cause for termination. Further, this license is separate from the Platform Performance Statistics for platform performance outlined in 5.3 below. Such Deidentified Data will not be treated as Confidential Information of Customer.
  2. Obligations with respect to Deidentified Data. Provider warrants that (i) its processing of Deidentified Data will be in compliance with applicable Data Protection Laws, (ii) Provider will not attempt to re-identify Deidentified Data, except that Provider may attempt to reidentify the Deidentified Data solely for the purpose of determining whether its deidentification processes satisfy the requirements of Data Protection Laws, (iii) Provider will apply appropriate administrative and technical safeguards to maintain any such information as Deidentified Data and prevent reidentification, and (iv) Provider will ensure that any further recipient of Deidentified Data is subject to restrictions and obligations substantially similar to those imposed on Provider by these Terms.
  3. Performance Statistics. Customer hereby authorizes Provider to collect, compile, use and disclose Deidentified Data collected in the performance of Services (“Platform Performance Statistics”), for the purpose of analyzing and reporting the effectiveness of the Services, and identifying usage trends, and for other purposes. Platform Performance Statistics and Deidentified Data will not be treated as Confidential Information of Customer.

6. Availability; Service Replacement; Backups; Subcontractors; Subprocessors.

  1. Availability. Provider or one of its Affiliates will host its portal for data management (“Data Manager”) on its, theirs or its third-party provider’s servers and provide Customer and Users with access to the Data Manager. Provider will use commercially reasonable efforts to provide access to the Services twenty-four (24) hours per day, seven (7) days per week, subject to scheduled maintenance, including planned outages, and Force Majeure Events, and with the exception of unplanned outages not to exceed five (5) business days in any one calendar year. Provider will make best efforts to inform Customer at least twenty-four (24) hours in advance of any scheduled maintenance. If access to the Services becomes unavailable due to problems with the servers, Provider will diligently repair any such problems so as to maintain Customer’s ability to use the Services. Provider will have no liability to Customer for any unavailability of the Services caused by the outage, unavailability, interruption, degradation or failure of Provider’s third-party service providers on which the Services depend.
  2. Service Replacement. Provider has the right to replace the Services, or a portion thereof, with another service provided by Provider or one of its Affiliates with substantially similar capabilities and functionalities in the event of a termination, sunset or merging of any Services. If any such change has a material adverse effect on Customer’s use of the Services, Customer may terminate the relevant portion of the Order Form(s) within thirty (30) days of receiving Provider’s notice by providing written notice to Provider, in which case Customer will be entitled to a refund of any applicable fees prepaid to Provider for the period after the effective date of the termination of the relevant portion of the Order Form.
  3. Backups. Provider has industry standard backup and recovery procedures in place that provide for redundant copies of the Provider Technology and Customer Data within the Provider Technology; however, Customer is responsible for backing up Customer Data on its own systems. Data transmission between Customer and third-party systems and Provider via any network outside the Provider Technology are exclusively Customer’s responsibility. Neither Provider nor its Affiliates assumes responsibility for the reliability or performance of any data network or any data integrity, communications or connection problems Customer may experience that fall outside the Services. Neither Provider nor its Affiliates guarantees against data loss, data destruction, or inaccuracies of Customer Data due to connectivity issues or Customer’s hardware failures.
  4. Subcontractors. Provider may from time to time in its sole discretion engage third parties to perform certain Services or arrange for an Affiliate to provide the Services (each a “Subcontractor”). Provider is and will remain responsible and liable for all: (i) obligations of Provider under these Terms and the performance required hereunder, including the proper supervision, coordination, and performance of the Subcontractor; and (ii) relevant and material acts and omissions of each Subcontractor (including such Subcontractor’s employees and agents, who, to the extent they are involved in providing any services, are deemed Provider personnel) to the same extent as if such acts or omissions were made by Provider.
  5. Subprocessors. Customer authorizes Provider to appoint Subprocessors to perform specific processing services on Provider’s behalf which may require such Subprocessors to process Customer Personal Information. The current list of Subprocessors will be provided to the Customer upon request. Provider will send notice via email  concerning the addition or replacement of any Subprocessors (whether by Provider directly or via a Subprocessor) or any material change to the processing Subprocessors will undertake. Within ten (10) business days after Provider’s notification of the intended change (the “Objection Period”), Customer may object, on reasonable grounds related to privacy and/or security of the Personal Information, to the addition or replacement of a Subprocessor. Customer’s objection shall be in writing and include Customer’s basis for its objection and options to mitigate, if any. Customer will not unreasonably withhold, condition, delay or object to the appointment of any Subprocessor or to any change to the processing undertaken by any Subprocessor. Provided Provider has complied with its obligations under these Terms and Customer has not objected, Provider will be permitted to engage such new or replacement Subprocessor following the end of the Objection Period. If Customer has objected, the parties shall negotiate in good faith to resolve such objection. If the parties are unable to resolve such objection within thirty (30) days, and Provider is not otherwise able to provide the Services, either party may terminate these Terms by providing written notice to the other party. Such termination shall not constitute a breach of the Terms. Provider will enter into a binding written agreement with each Subprocessor that imposes on the Subprocessor materially the same obligations that apply to Provider under these Terms. Where any of its Subprocessors fail to fulfil its data protection obligations, Provider will be liable to the Customer for the performance of its Subprocessors’ obligations.

7. Support and Training.

  1. Support. Commencing on the applicable Subscription Start Date, Provider will supply Customer with access to email support to handle support inquiries during the Term. Email support will be available five (5) days a week, from Monday through Friday, from 8am – 5pm ET.
  2. Training. Commencing on the applicable Subscription Start Date, Provider will supply Customer with various customer success services during the Term that may include in-person or on-premises User training. If Customer requires on-premises User training, Customer will be responsible for reimbursing Provider for reasonable travel and out of pocket expenses related to Provider employees providing such User training.

8. Fees; Billing; Taxes; Late Payments; Suspension.

  1. Fees. Customer will pay Provider the charges set forth on the Order Form (the “Fees”). Unless otherwise provided in the Order Form, Provider may invoice the Fees as early as thirty (30) days before the applicable Subscription Start Date, and annually thereafter as early as thirty (30) days before the anniversary of the applicable Subscription Start Date (for any multi-year Initial Term), or as early as thirty (30) days before the first day of the Subscription Start Date for any Renewal Term (in the event of any renewal). If applicable to an Order Form, Provider may invoice any implementation fees on or after the Subscription Start Date, unless otherwise provided in the Order Form. Provider may invoice any travel and out-of-pocket User training expenses after training is completed. Unless otherwise stated in the Order Form, invoices are due and payable upon execution of an Order Form, upon the anniversary of the applicable Subscription Start Date (for any multi-year Initial Term), or upon the first day of the Renewal Term (in the event of any renewal), unless otherwise provided in the Order Form. All Fees will be paid in United States Dollars.
  2. Renewal Fee Adjustments. If an Order Form is renewed in accordance with Section 14.1 of these Terms, Provider will send an invoice for the Fees owed for the Renewal Term, as provided for in Section 8.1. The Fee for the Renewal Term may be subject to an increase over the prior term’s Fee, as agreed upon in the Order Form.
  3. Taxes. Customer will be responsible for, and will pay or reimburse Provider for, all applicable state, local, federal and governmental taxes, duties or charges of any kind that may be levied upon either party in connection with these Terms except for taxes levied on Provider’s net income unless Customer is a tax-exempt entity. Customer will furnish proof of such status on the Subscription Start Date. Where taxes are required by law, such taxes will be charged in addition to all quoted fees.
  4. Late Payments; Suspension. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies, and if such failure continues for thirty (30) days or more, (i) Provider may suspend Customer’s access to any portion or all of the Services until such amounts are paid in full; (ii) Provider may charge an interest rate on late payments of the lesser of three percent (3%) or the highest rate allowable by law; and (iii) Provider will be entitled to recover all costs and expenses, including reasonable attorneys’ fees, arising out of Customer’s failure to make payments due in a timely manner.

9. IP Ownership; Feedback.

  1. Provider IP. Except as expressly granted in these Terms, Provider and, where applicable, its licensors and its Affiliates, retain all of their respective right, title and interest in and to the Provider Technology, the Services, and Results, together with all Intellectual Property Rights in or pertaining to the Provider Technology, the Services, and Results, and no other right is created hereunder by implication, operation of law or otherwise.
  2. Provider Marks. The service marks, logos and product and service names associated with the Services (but excluding Customer Marks) are marks of Provider or third parties (collectively, the “Provider Marks”). Except as expressly stated in these Terms, Provider (or the applicable third parties) retains all of its right, title and interest in and to the Provider Marks, together with all Intellectual Property Rights in or pertaining to the Provider Marks, and no other right is created hereunder by implication, operation of law or otherwise. Customer will have the right to use and display such Provider Marks solely as a part of the Services and for the promotion of the Services to Users, subject to Customer’s compliance with these Terms and any branding guidelines provided by Provider to Customer. All use of the Provider Marks, and any goodwill associated therewith, will inure to the benefit of Provider.
  3. Feedback. If Customer provides to Provider any suggestions, feedback, input, recommendations or enhancement requests with respect to the Services or the Provider Technology (“Feedback”), Customer hereby assigns to Provider all right, title and interest in and to such Feedback, together with all Intellectual Property Rights in or to such Feedback. Customer hereby waives any moral rights Customer may have in any such Feedback.
  4. Customer Data and Customer Marks. Except as expressly stated in these Terms, Customer retains all of its right, title and interest in and to the Customer Data and Customer Marks, together with all Intellectual Property Rights in or pertaining to the Customer Data and the Customer Marks, and no other right is created hereunder by implication, operation of law or otherwise.

10. Confidentiality; Security; Incidents; Personally Non-Identifiable Data; Safeguards; Compliance with Laws.

  1. Confidentiality. Receiving Party will not disclose to any third party the Disclosing Party’s Confidential Information and will not use the Disclosing Party’s Confidential Information for any purpose other than to exercise its rights or perform its obligations under these Terms. Without limiting the foregoing, Customer agrees it will not use any Confidential Information provided by Provider for any other business, competitive, or commercial purpose, nor in any way detrimental to Provider. Each party will limit access and use of Confidential Information to strictly those of its employees and agents who require such access and use in connection with its rights and obligations under these Terms and shall subject such employees and agents to a duty of confidentiality. Each party will take appropriate action with its employees and agents to satisfy its obligations hereunder and will protect the other’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in any event with not less than a reasonable degree of care. Notwithstanding the foregoing, Provider will have the right to disclose Customer Data to its Subcontractors and Subprocessors as part of the Services, solely in accordance with these Terms. All Confidential Information disclosed in connection with these Terms will continue to be the exclusive property of the Disclosing Party and of those persons who have licensed or otherwise provided such Confidential Information.
  2. Exclusions. The obligations set forth in this Section 10 will not apply to information (i) previously known to the Receiving Party prior to disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (ii) which is or becomes publicly known through no wrongful act of the Receiving Party, except for information that becomes publicly known via a Security Incident (as defined in Section 10.5) (iii) received from a third-party under no confidentiality obligation with respect to the Confidential Information, or (iv) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party. If Receiving Party is legally required (including by statute, administrative order, or court order) to disclose any Confidential Information, Receiving Party will, to the extent not prohibited by law, provide the Disclosing Party prompt notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy or waive compliance with respect to that disclosure.
  3. Return/Destruction of Confidential Information. Upon the termination or expiration of these Terms and all Order Forms, each party will promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. In addition, the Receiving Party will also destroy all copies of any notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations, and other materials prepared by or for the Receiving Party or its representatives that contain, are based on, or otherwise reflect or are derived from, in whole or in part, any of the foregoing, created by the Receiving Party or its representatives and certify in writing to the Disclosing Party that such copies have been destroyed. Notwithstanding the foregoing, Receiving Party may retain, on a confidential basis as set forth in these Terms, copies of Confidential Information to comply with legal or regulatory requirements or in accordance with the Receiving Party’s standard electronic backup and disaster recovery procedures.
  4. Injunctive Relief. Each party agrees that, in addition to any other remedies available, the other will be entitled to seek injunctive or other equitable relief to enforce the terms of this Section 10.
  5. Security; Incidents. Each party is responsible for: (i) the security of Personal Information on the systems under its control; and (ii) data security issues arising from its systems or directly resulting from its own third-party vendors or subcontractors, if any, in connection with the Services. Each party will maintain commercially reasonable information security practices designed to prevent unauthorized or unlawful access to, use, disclosure of, destruction, loss, exposure or alteration of Personal Information (collectively with any other broader circumstance defined by Data Protection Laws as a “breach,” “data breach,” “personal data breach” or similar term, a “Security Incident”). In the event of a Security Incident involving the other party’s Personal Information, upon becoming aware of the Security Incident, the affected party will promptly (a) assess the nature and scope of the Security Incident; (b) identify the Personal Information involved, if any; (c) take appropriate steps to contain, control, stop, and remediate the Security Incident; and (d) in the event Personal Information was, or is reasonably suspected to be, compromised, promptly notify the other party of the Security Incident, subject to any request by law enforcement or other government agency to withhold such notice pending the completion of an investigation. The party experiencing the Security Incident will provide reasonable assistance to enable the other party to fulfill its obligations to notify any law enforcement or regulatory authority and, when necessary, the individuals to whom such Personal Information pertains. Each party shall have sole control over the determination of a notification obligation to any law enforcement, regulatory authority, or individual, and the timing, nature, and content of any such notification with respect to each party’s own Personal Information.
  6. Automatically Collected Data. Customer understands and agrees that Provider may use cookies, web beacons and/or other technologies to collect certain data in connection with these Terms and Customer’s or User’s use of the Services, including, but not limited to, Customer’s or User’s device information, such as IP address, domain type, and browser, and usage data, such as pages viewed by Customer or a User, links clicked, frequency or date and time of access to the services. Provider shall not use such information, collected automatically when using the Services, to specifically identify Customer or any User. Provider may store such data itself or such data may be included in databases owned and maintained by Provider or its Affiliates, agents or service providers. Provider may use such data and pool it with other information to track, for example, the total number of users of the Provider Technology, the number of visitors to each area or interactive object within the Provider Technology, and the domain names of any visitors’ internet service providers. Moreover, Provider may employ session replay technology for support and debugging purposes. To the extent Provider does employ any session replay technology, Provider will obscure any Customer Data/Personal Information during these session replays, but the sessions will be tracked by the end-user’s full name, email and user ID and retained for ninety (90) days at which point they are automatically deleted.
  7. Safeguards; Compliance with Laws. Provider will use commercially reasonable administrative, technical, and physical safeguards to prevent the unauthorized access, use or disclosure of data in violation of any laws applicable to the Provider Technology or the Services. Customer also acknowledges that by issuing User identifiers and passwords for its authorized Users, Customer controls, defines and manages access to the data that will be used by Customer and its Users within the Provider Technology. Customer is responsible for (i) compliance with all Data Protection Laws that may be applicable to Customer’s use of the Provider Technology or the Services, (ii) securing all necessary prior consents for the collection, storage, delivery of Customer Data to Provider, and use of Customer Data within the Provider Technology, and (iii) creation and maintenance of, and compliance with, applicable policies regarding access and use by Users of any data.

11. Customer Obligations; Representations and Warranties; Service Warranty; Third-Party Data; Accuracy of Results; Disclaimers.

  1. Customer Obligations, Representations, and Warranties. Customer covenants that throughout the Term, Customer will be responsible for all activity occurring under Customer’s User accounts and covenants, represents and warrants that Customer: (i) is in compliance, and always will comply, with all applicable laws and regulations with respect to Customer’s use of the Services, Results and Provider Technology under these Terms, including those related to data privacy and the transmission of technical or personal data; (ii) has all necessary prior consents for the collection, storage, delivery of Customer Data to Provider, and use of Customer Data within the Provider of Technology; (iii) will only use the Services as contemplated by these Terms and in accordance with applicable laws and regulations; and (iv) assumes all liability for any unauthorized use of the Services by Customer, Users, and Customer’s employees, officers, Affiliates and agents. Customer acknowledges that Provider will have the right, from time to time, to provide updates or otherwise upgrade the Services. Customer will notify Provider immediately of any unauthorized use of any password or account or any other known or suspected breach of security.
  2. Provider Representations and Warranties. Provider represents and warrants that: (i) Provider has all rights and licenses necessary to deliver the Services and Results to the Customer and to grant the Customer all rights granted in these Terms to use the Services and Results, and (ii) to the Provider’s knowledge, the Results do not infringe upon or otherwise violate any Intellectual Property Rights of any third party.
  3. Services Warranty. Provider warrants that during the Term, the Services will perform substantially as described in accordance with the Documentation made available by Provider. Customer’s sole remedy and Provider’s sole responsibility for any failure of the Services to conform to this warranty will be Provider’s commercially reasonable efforts to modify the Services so as to conform to this warranty, or, if Provider is unable to do so, a pro-rated refund of the fees paid for the period of non-conformance of Services. In the event of any uncured material breach of this warranty lasting longer than thirty (30) days from Customer’s written notice to Provider of same, Customer may terminate these Terms in accordance with Section 14.2.
  4. Third-Party Data. Provider or its Affiliates may, from time to time and at their sole discretion, include as part of the Services or Results access to Third-Party Data. PROVIDER AND ITS AFFILIATES MAKE NO REPRESENTATIONS AND DISCLAIM ALL WARRANTIES WITH RESPECT TO THE AVAILABILITY, ACCURACY OR CONTENT OF SUCH THIRD-PARTY DATA. PROVIDER OR ITS AFFILIATES MAY DISCONTINUE ACCESS TO THIRD-PARTY DATA AT ANY TIME AND AT THEIR SOLE DISCRETION. ANY RELIANCE ON SUCH THIRD-PARTY DATA FOR ANY PURPOSE IS DONE SOLELY AT CUSTOMER’S RISK. Customer will not use any Third-Party Data (whether alone or in combination with any other data) other than as a part of the Services or Results. All rights to any Third-Party Data automatically terminate upon termination of these Terms, and Customer will delete all Third-Party Data upon termination of these Terms, other than any data that has been derived from Third-Party Data in compliance with these Terms prior to the termination. Customer hereby grants to Provider a non-exclusive, fully paid-up, royalty-free, worldwide right and license, along with the right to authorize Subcontractors and Affiliates, to use or otherwise exploit the Customer Data only as necessary to provide or operate the Services or to provide the Results, and to provide or promote other products or services to Customer or otherwise communicate with Customer.
  5. Accuracy of Results. Provider will take reasonable steps to control the quality of the Results but will not be subject to liability for truth or accuracy of the Results or for its completeness or for errors. Application of such reasonable quality control procedures constitutes the full extent of the warranty with regard to the Results provided, and Provider’s sole and exclusive liability for a breach of this limited warranty will be reperformance of the affected Services or, at the Provider’s option, a refund of the fees paid by the Customer corresponding to the defective Services. Customer acknowledges that it may be necessary or advisable from time to time, in the ordinary course of the Provider’s business, for the Provider to add, delete, and substitute Results it makes available to its customers, including the Customer.
  6. Disclaimers. EXCEPT AS STATED IN THIS SECTION 11, PROVIDER PROVIDES THE SERVICES AND RESULTS TO CUSTOMER “AS IS” AND DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL OPERATE UNINTERRUPTED OR ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PROVIDER EMPLOYEE OR REPRESENTATIVE WILL CREATE A WARRANTY FOR THE SERVICES OR RESULTS, AND CUSTOMER MAY NOT RELY ON ANY SUCH RESULTS OR ADVICE. IN ADDITION, PROVIDER HEREBY DISCLAIMS ANY AND ALL LIABILITY PERTAINING TO (I) THE TRANSMISSION OF INFORMATION OVER THE INTERNET, OR (II) ANY IMPAIRMENT OR DISRUPTION OF CUSTOMER’S CONNECTION TO THE INTERNET OR ACCESS TO THE SERVICE. PROVIDER’S LICENSORS AND AFFILIATES EXPLICITLY DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICES AND RESULTS. EXCEPT AS EXPRESSLY SET FORTH IN ANY REPRESENTATIONS OR WARRANTIES MADE BY PROVIDER, (A) PROVIDER MAKES NO EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF THE RESULTS AND (B) CUSTOMER IS NOT ENTITLED TO RELY UPON THE ACCURACY OR COMPLETENESS OF THE RESULTS.

12. Indemnification.

  1. By Provider. Provider will indemnify, and hold harmless and defend Customer from and against claims that Customer’s use of the Services or the Provider Technology, as expressly authorized by these Terms, infringe any third party’s U.S. copyrights, patent rights, trademark rights and trade secret rights, and all damages and costs awarded or paid in settlement and reasonable attorney’s fees with respect thereto, provided that Customer (i) promptly notifies Provider of any such claim and cooperates with Provider in the defense thereof and (ii) gives Provider sole control of the defense and settlement of the claims; provided however, that Provider may not settle any claim against Customer unless Customer consents to such settlement, and further provided that Customer will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice. Provider will have no obligation with respect to any claim arising out of or based upon Customer Data, Customer Marks, Customer’s modification of the Services or Results or use of the Services or Results in a manner not permitted by these Terms.
  2. Intellectual Property. If the Services or the Provider Technology or any part thereof provided under these Terms is the subject of a claim, suit or proceeding for infringement of any U.S. Intellectual Property rights, or in the event of any adjudication that the Services or Provider Technology infringes upon any U.S. Intellectual Property rights, Provider, at its expense, will (i) secure for Customer the right to continue using the Services or the Provider Technology or part thereof, or alternatively replace or modify the Services or the Provider Technology or part thereof to make it non-infringing; or (ii) if the foregoing is not commercially reasonable, either party will have the right to terminate these Terms or the applicable Order Form upon written notice to the other party and Provider will refund any fees prepaid to Provider for the period after such termination, provided that Provider’s obligation to refund such prepaid fees will not impact Customer’s remedies against Provider for non-conforming Services under these Terms. For clarity, any changes made by Provider to the Provider Technology pursuant to the preceding sentence will not impact Provider’s warranty to the Customer contained in Section 11.3 of these Terms.
  3. By Customer. Except as prohibited by law, Customer will, at its own expense, indemnify and hold Provider, its licensors and its Affiliates and its and their respective officers, directors, employees and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with any and all claims (i) alleging that the Customer Data or Customer Marks, or any use thereof, infringes or violates the Intellectual Property rights, contract rights, or other rights of any third party; (ii) related to Customer’s fraudulent or willful misconduct; (iii) ; or related to a Security Incident involving Provider’s Personal Information; (iv) related to the breach of the representation and warranties set out in part (b) of the first sentence of Section 11.1 (iv) related to Customer’s violation of the license provisions in Section 4. Provider will (a) promptly notify Customer of any such claim and cooperate with Customer in the defense thereof and (b) give Customer sole control of the defense and settlement of the claims provided however, that Customer may not settle any claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.

13. Limitation of Liability.

  1. Exclusions.

    • 1.1. EXCEPT AS PROHIBITED BY LAW, NEITHER CUSTOMER NOR PROVIDER (AND, WHERE APPLICABLE, ITS LICENSORS AND AFFILIATES) WILL IN ANY EVENT BE HELD LIABLE, WHETHER BASED UPON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF IT HAS BEEN ADVISED OF OR COULD HAVE REASONABLY FORESEEN THE POSSIBILITY OF SUCH DAMAGES), SUCH AS, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION. THE FOREGOING LIMITATION SHALL NOT APPLY TO DAMAGES RELATED TO CUSTOMER INDEMNIFICATION OBLIGATIONS UNDER PART (III) OF SECTION 12.3.

    • 2.2. IN NO EVENT WILL PROVIDER BE RESPONSIBLE FOR ANY LOSS OR DAMAGE INCURRED BY ANY PERSON OR PARTY AS A RESULT OF THE USE OF OR RELIANCE ON THE RESULTS OR SERVICES. IN NO EVENT WILL PROVIDER BE LIABLE FOR LOSS OF OR DAMAGE INCURRED BY ANY PERSON OR PARTY AS A RESULT OF THE USE OF CUSTOMER’S SOFTWARE, DATA, OR EQUIPMENT.

  2. Aggregate Liability. Except as prohibited by law, the maximum aggregate liability of Provider arising out of or in any way connected to these Terms (except as stated otherwise in Sections 13.3 and 13.4 below) will not exceed the lesser of (i) the amount of fees actually paid by Customer to Provider in the twelve (12) month period immediately preceding the date the cause of action arose or reasonably should have been discovered, and (ii) $100,000.
  3. Specific Aggregate Liability. Except as prohibited by law, in no event will Provider’s maximum aggregate liability for breach of confidentiality, a Security Incident, indemnification, fraud or intentional misconduct exceed the lesser of (i) the amount recoverable from Provider’s applicable insurance policy and (ii) $500,000.00.
  4. Licensor and Affiliate Liability. In no event will Provider’s licensors or Affiliates have any liability arising out of or in any way connected to these Terms.

14. Term; Renewal; Termination; Handling of Customer Data Upon Suspension/Termination.

  1. Term; Renewal. These Terms will be effective as of the Subscription Start Date and will continue until terminated by either party as permitted under these Terms, but must remain in full force and effect as long as there is an active Order Form.  An Order Form will be effective for the period set forth on the Order Form (the “Initial Term”) and, upon expiration of the Initial will renew as determined by and pursuant to the terms of the active Order Forms, unless (i) either party provides written notice of its intent not to renew pursuant to the terms of the active Order Forms, or (ii) these Terms are otherwise terminated in accordance with this Section 14.
  2. Termination for Breach; Suspension. Without limitation of any other remedy available herein, either party may terminate these Terms and/or an Order Form if the other party commits any material breach of these Terms and fails to remedy the breach within thirty (30) days after written notice of the breach is given by the non-breaching party. In the event that Provider fails to remedy the material breach within thirty (30) days after written notice of the breach is given, Customer will be entitled to reimbursement of a pro rata portion of the corresponding Fee (for example, if an Order Form is terminated on the sixth (6th) month anniversary of a one-year Renewal Term, then one-half of the Fee paid by Customer to Provider corresponding to such Renewal Term will be reimbursed to Customer). Notwithstanding the foregoing, if Customer’s account is overdue (except with respect to fees or charges then under a reasonable and good faith dispute), in addition to any of the other rights or remedies available to Provider hereunder, at law or at equity, Provider reserves the right to, in its sole discretion, terminate these Terms or an applicable Order Form or suspend the Results or Services, provided that Provider has provided Customer fifteen (15) days prior written notice of its intention to terminate or suspend as set forth above and Customer has failed to bring its account current during such period. Provider and its Affiliates will have no liability whatsoever to customer, regardless of the theory of liability, as a result of any such termination of these terms, including any indirect, consequential, punitive, or special damages.
  3. Handling of Customer Data Upon Suspension/Termination. Upon suspension or termination of the Services, all access of Customer and its Users to the Provider Technology and the Services will cease. If Provider is hosting Customer Data: (i) after the expiration of a reasonable period after termination or expiration of these Terms and/or an Order Form, not more than one hundred and twenty (120) days, subject to applicable law, Provider will irretrievably delete Customer Data, except to the extent such data is Deidentified Data; and (ii) upon Customer’s written request within thirty (30) days of termination of an Order Form, Provider will, where applicable, make available to Customer a file of the Customer Data in a format determined by Provider in its sole discretion, provided that Customer has paid in full all undisputed amounts owed to Provider including the fee for the file of Customer Data described above if a fee is applicable.
  4. Fees and Expenses. No expiration or termination will affect Customer’s obligation to pay all Fees and expenses that may have become due before such expiration or termination, or entitle Customer to any refund.

15. Government Customers

This Section 15 applies if Customer is a governmental or public entity, including the U.S. federal government or any agency or instrument of any federal, state, or local governmental entity.  The Services are a “commercial product,” as defined at 48 C.F.R. § 2.101, and constitute “commercial computer software,” as defined in 48 C.F.R. § 252.227-7014(a)(1) and as used in 48 C.F.R. §§ 12.212 and 227.7202, or any state equivalent regulation. This commercial computer software and related documentation is provided to Customers and their Users for use, by Customer and on Customer’s behalf, with only those rights as are granted to all other end users pursuant to the terms and conditions in these Terms.  These Terms, including Sections 8 and 14.1 regarding renewals; Section 12.3 regarding indemnification by the Customer; Section 14.2 Termination for Breach; Suspension; Section 17.7 Assignment; and Section 17.11 Governing Law, apply to governmental or public entity Customers except to the limited extent such Customer is prohibited by the laws of its jurisdiction from accepting such provisions.  If and to the extent any provision of these Terms is so prohibited, such provision will be deemed modified only to the extent reasonably necessary to conform to applicable law but to give maximum effect to these Terms as written.

16. Insurance

Provider will maintain at all times during the Term, at its own expense, insurance of the types and in the limits set forth below in this Section 16. All policies of insurance required pursuant to this Section 16 will be issued by insurance companies authorized to provide that class of insurance where the Services are to be performed and with a minimum rating of A-: VII by A.M. Best & Company:

    1. Commercial General Liability insurance in form and amount and with limits of not less than $1,000,000 per occurrence and $2,000,000 aggregate annual liability with respect to bodily injury, personal injury, property damage and products/operations liability;
    2. Commercial Cyber Liability insurance in form and amount with limits of no less than $8,000,000 per claim and aggregate annual limit;
    3. Professional Liability or errors and omissions insurance in form and amount with limits of not less than $1,000,000 per claim and $2,000,000 aggregate annual limit;
    4. Employee Benefits Liability in form and amount with limits of not less than $1,000,000 per claim and $2,000,000 aggregate annual limit;
    5. Workers’ compensation insurance and other legally required insurance in accordance with applicable laws;
    6. Employers liability insurance with limits of not less than $500,000 per accident/injury;
    7. Umbrella/excess liability insurance with limits of not less than $5,000,000 per claim and aggregate annual limit.

17. Miscellaneous

    1. Compliance with Laws. Each party will comply with all laws applicable to such party with respect to its performance under these Terms.
    2. Accessibility. Customer agrees that the Provider Technology does not fully comply with the accessibility guidelines of Section 508 of the Rehabilitation Act of 1973.  Provider represents that the Provider Technology largely complies with Web Content Accessibility Guidelines (WCAG) Version 2.1 Level AA and agrees to promptly respond to any accessibility complaints received from Customer.  Provider will provide Customer with the [Provider Voluntary Product Accessibility Template (“VPAT”)] and will continue to improve the products based its accessibility roadmap.  Customer’s sole and exclusive remedy for Provider’s failure to obtain WCAG 2.1 AA compliance will be for Customer to terminate these Terms with thirty (30) days prior written notice by Customer to Provider.
    3. FCRA. Customer acknowledges Provider is not a consumer reporting agency, or subject to the Fair Credit Reporting Act (FCRA). No service provided by Provider shall, under any circumstance, be utilized for any purpose covered under the FCRA.
    4. Publicity. Customer acknowledges and agrees that Provider may identify Customer as a Customer of Provider and may display Customer’s name and logo on Provider’s website for such purposes, for so long as these Terms are in effect or until Customer revokes its consent in writing, whichever is earlier.
    5. Notices.  All notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in these Terms, a notice is effective only: (i) upon receipt by the receiving party for personal delivery; (ii) when transmitted by facsimile or email; (iii) two (2) business days after depositing the notice in the U.S. mail; (iv) one (1) business day after depositing the notice with a nationally recognized overnight courier; and (v) if the party giving the notice has otherwise complied with the requirements of this Section 17.5. Notices by overnight courier or mail to Customer will be delivered to Customer’s mailing address on record with Provider. Notices to Provider will be delivered to Provider at the notice information provided on the latest Order Form between the Provider and Customer.
    6. Entire Agreement. These Terms, the Addenda and all active Order Forms, constitute the entire agreement between the parties and supersedes all prior oral or written agreements or communications, with regard to the subject matter described in these Terms. These Terms may only be modified in writing, signed by both parties.
    7. Assignment. These Terms may not be assigned or transferred by either party without the prior written consent of the other party; provided, however, that Provider may assign these Terms to any successor or assignee of its business, whether by merger, direct or indirect change of Control, or sale of all or substantially all of its assets. Any attempt to assign these Terms or any rights hereunder in violation of this Section 17.7 will be null and void.
    8. Waiver and Severability. Waiver by a party of any default by the other will not be deemed a waiver of any other default or subsequent breach of any term or obligation. If any term or condition of these Terms is determined to be invalid or unenforceable in whole or in part for any reason, these Terms will be reformed to be valid and enforceable consistent with the intention of the parties as expressed in these Terms to the greatest extent permitted by law.
    9. No Third-Party Benefits. These Terms are entered into solely for the respective benefit of the parties and their permitted successors and assigns, and nothing in these Terms will be construed as giving any right, remedy or claim under these Terms to any third parties.
    10. Force Majeure. Neither party will be in default or be liable to the extent that failure to perform or delay in performing any obligation under these Terms is caused solely by or results from supervening conditions beyond its reasonable control, including acts of God, flood, fire, natural disaster, explosion, war, terrorism, riot or other civil disturbance, national emergency, outages of electrical, telecommunications or computer server hosting services, acts of government or lockouts or labor strikes (whether or not relating to either party’s workforce), pandemics (“Force Majeure Event”), provided that such party will use its best efforts to overcome any such Force Majeure Event.
    11. Governing Law. Unless otherwise specified in the Order Form or required by operation of law, these Terms will be governed by the laws of the State of Delaware, without regard to its principles of conflicts of laws, and any legal suit, action or proceeding arising out of or relating to these Terms will be commenced in a federal or state court in the State of Delaware, and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action, or proceeding.
    12. Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THESE TERMS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
    13. Relationship of the Parties. The relationship of the parties will be that of independent contractors. Nothing in these Terms will be construed to create any agency, partnership, joint venture or similar relationship or to subject the parties to any implied duties or obligations respecting the conduct of their affairs which are not expressly stated in these Terms. Neither party will have any right or authority to assume or create any obligation or responsibility, either express or implied, on behalf of or in the name of the other party, or to bind the other party in any matter or to anything whatsoever.
    14. Conflict. If there is any conflict between the provisions of an Order Form, and the provisions of these Terms (including any Addendum attached hereto), then the provisions of the Order Form will control (with respect to the Order Form only). If there is any conflict between the provisions of these Terms, and the provisions of an Addendum attached or incorporated hereto, then the provisions of the Addendum will control (with respect to the Addendum only). Notwithstanding the foregoing, the terms and conditions of the DPA, and the GDPR DPA, as applicable, will always control with respect to Provider’s processing of Personal Information on behalf of Customer. Notwithstanding the foregoing, for any Client Data or Confidential Information that constitutes protected health information as defined under 45 CFR 160.103, the terms of the Business Associate Agreement between the parties (the “BAA”) shall govern, to the extent the parties have executed a BAA.
    15. Headings, Advice of Counsel, and Drafting. The headings appearing in these Terms are inserted only as a matter of convenience and for reference only, and in no way define, limit or describe the scope and intent of these Terms or any of the provisions hereof. In the event of a conflict between the headings and the content of a section, the content of the section will control. The parties acknowledge that they have had the opportunity to consult with legal counsel, and that these Terms will be interpreted without any bias against one party as drafter.
    16. Non-Exclusive. Nothing contained in these Terms will be construed as creating an exclusive relationship between Provider and Customer.
    17. Survival. Any right or obligation of the parties in these Terms that, by its nature, should survive termination or expiration of these Terms, will survive any expiration or termination of these Terms, including but not limited to Sections 1, 2, 4.6, 5.1, 9, 10, 11.6, 12, 13, 14.2, 14.3, 14.4 and 17.

18. SMS / Text Messaging Terms

  1. EverTrue may send you SMS text messages if you have opted in to receive them (for example, two-factor authentication codes or account notifications).
  2. By opting in, you agree to receive automated text messages from EverTrue at the mobile number you provide.
  3. Message frequency varies. Message and data rates may apply.
  4. You can cancel at any time by texting STOP. After you send STOP, we will send a one-time confirmation and no further messages unless you re-subscribe.
  5. Text HELP for assistance, or contact us via our support channels.
  6. Carriers are not liable for delayed or undelivered messages.
  7. See our Privacy Policy for details on how we handle your information, including mobile opt-in data.