THIS END USER AGREEMENT(“AGREEMENT”) APPLIES TO ANY USE OF THE SERVICES (AS DEFINED BELOW) OFFERED BY USERMIND,INC. ("USERMIND") HEREUNDER. BY PURCHASING, ACCESSING, OR USING ANYPART OF THE SERVICES, YOU AND THE ENTITY YOU REPRESENT (TOGETHER, “SUBSCRIBER”)AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS HEREIN.
1. SERVICES AND SUPPORT
1.1 Subject to the terms and conditions of this Agreement, Usermind grants to Subscriber a limited, non-exclusive, non-transferable right, without right of sublicense to internally access and use Usermind’s software-as-a-service solution (the“Services”) described on a purchase order, quote, or statement of work executed by the parties (or via a Usermind reseller) that references this Agreement(each a “Order Document”), during the service term set forth on the Order Document (“Service Term”), for Subscriber’s internal business purposes. Usermind may made non-material modifications to Services in its discretion. Usermind will use reasonable efforts to give Subscriber prior written notice (email is sufficient) of any major modifications. Multiple Order Documents may be executed by the parties hereunder. In the event of any conflict, between this Agreement and an Order Document, this Agreement will control unless the Order Document express states otherwise.
1.1 Usermind will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, Usermind reserves the right to suspend Subscriber’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Subscriber is in breach of this Agreement, including failure to pay any amounts due to Usermind.
1.2 Subject to the terms hereof, Usermind will provide reasonable support to Subscriber for the Services from Monday through Friday during Usermind’s normal business hours.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to: (1) modify, rent, lease, or otherwise permit third parties to use the Services; (2) decompile, disassemble or reverse engineer the Services, or otherwise attempt to discover the source code, object code, logic, process or underlying methodology, structure, ideas or algorithms of the Services, or related trade secrets, or any software, documentation or data related to the Services (“Software”); (3) provide access to the Services to any third party for purposes of assessing features, functionality, or performance of the Services; (4) use the Services or Software for time sharing or service bureau purposes or for any purpose other than its own internal use; or (5) use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations. Subscriber will use reasonable efforts to prevent any unauthorized use of the Services or the Software, and will promptly notify Usermind in writing of any unauthorized use that comes to Subscriber’s attention and provide all reasonable cooperation to prevent and terminate such use.
2.2 Subscriber will cooperate with Usermind in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Usermind may reasonably request. Subscriber will also cooperate with Usermind in establishing a password or other procedures for verifying that only designated employees of Subscriber have access to any administrative functions of the Services.
2.3 Subscriber will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Subscriber may change the individual designated as Primary Contact at any time by providing written notice to Usermind.
2.4 Subscriber will be responsible for maintaining the security of Subscriber account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Subscriber account with or without Subscriber’s knowledge or consent.
2.5 Subscriber acknowledges and agrees that the Services operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Usermind is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Subscriber is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Usermind does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Subscriber and a third party provider is solely between Subscriber and such third party provider and is governed by such third party’s terms and conditions.
3. PROFESSIONAL SERVICES
The Order Document may provide for the provision by Usermind of Professional Services to Subscriber, which may include configuration, deployment, guided services, consultation, education or training services. The fees and terms for such ProfessionalServices will be as provided in the Order Document.
4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
4.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary information solely to those employees and contractors with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, 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. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure. In any event, Usermind may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services’ performance.
4.3 Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirors.
5. PROPRIETARY RIGHTS
5.1 Subscriber shall (and Subscriber hereby represents and warrants that they do) fully own all intellectual property rights in or to all data and other information uploaded into the Services by or on behalf of Subscriber and all resulting data generated directly thereof via the Services in response to Subscriber’s queries and provided to Subscriber, provided that Usermind retains the right to use such data or information for testing, improving, and providing Usermind’s products and services, and including in an aggregated and de-identified form in products and services made available to third parties.
5.2 Subscriber acknowledges that Usermind owns and retains all the intellectual property rights in and to the Services, Software, and any related process or methodology provided or used by Usermind, and any modification, improvement or enhancement thereto however developed or provided. Nothing contained in this Agreement shall be construed to convey to Subscriber any rights or ownership in or to the Services, Software, or related methodologies or processes, including any related intellectual property rights,other than the limited rights expressly provided in Section 1.1. Either party may provide feedback,suggestions, ideas, enhancement requests, recommendations or other information(the “Feedback”) to the other about the other party’s Confidential Information and/or products and services. All such Feedback is entirely voluntarily. Except as otherwise expressly provided in this Agreement or a separate written agreement signed thereafter between the parties, this Agreement does not limit the party receiving the Feedback from using or exploiting the Feedback provided to it.
5.3 Usermind will indemnify Subscriber from all damages, costs, settlements, attorneys' fees and expenses (“Liabilities”) awarded to unaffiliated third parties resulting from infringement by the Services of any United States patent or any copyright or misappropriation of any trade secret, provided Usermind is promptly notified of any and all threats, claims and proceedings (“Claims”) related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Usermind will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by Usermind,(ii) that are modified after delivery by Usermind where the alleged infringement relates to such modification, (iii) combined with other products, processes or materials where the alleged infringement relates to such combination, (iv) where Subscriber continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) where Subscriber’s use thereof is not strictly in accordance with this Agreement and all related documentation. Subscriber will indemnify Usermind from all Liabilities resulting in connection with any Claims that arise from an infringement or violation of any third party rights by Subscriber’s data or information, or infringement or misappropriation Claims excluded from Usermind’s indemnity obligation by the preceding sentence, or otherwise from Subscriber’s use of Services or activities hereunder, provided Subscriber is promptly notified of any Claims related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement.
6. PAYMENT OF FEES
6.1 Subscriber will pay Usermind (except as set forth in Section 6.4 below) the applicable fees as set forth on the Order Document (the “Fees”). To the extent applicable, Subscriber will pay for additional services, such as fees for Professional Services as set forth on the Order Document. All payments will be made in accordance with the Payment Schedule and the Method of Payment. If not otherwise specified, payments will be due within thirty (30) days of invoice.
6.2 Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Subscriber agrees to pay such taxes(excluding US taxes based on Usermind's net income) unless Subscriber has provided Usermind with a valid exemption certificate. In the case of any withholding requirements, Subscriber will pay any required withholding itself and will not reduce the amount paid to Subscriber on account thereof.
6.3 If this Agreement is terminated for Usermind’s uncured breach as authorized in Section 7.2, Usermind will refund all fees paid in advance for the remainder of the Service Term. Except as set forth in the preceding sentence or Section 9, all fees for the Service Term are non-refundable and non-cancellable.
6.4 In the event Subscriber purchases through a Usermind reseller, payments will be made to the reseller.
7.1 Subject to earlier termination as provided below, this Agreement is for the Service Term as specified on the Order Document.
7.2 In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement prior to the end of the Service Term by giving thirty(30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. To be effective, breach notice must provide sufficient details regarding the breach and expressly state the intent to terminate if the breach is not cured. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business (without a successor).
7.3 The following sections of this Agreement will survive termination or expiration of this Agreement: Sections 2.1, 4, 5, 6,7.3, 9 - 12.
8. SOFTWARE AND DATA SECURITY
Usermind represents and warrants that it will not knowingly or negligently include, in any Usermind software released to the public and provided to Subscriber hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. Usermind will maintain commercially reasonable administrative, physical and technical safeguards for the Services to protect against the accidental or unauthorized access, use, alteration or disclosure of Subscriber’s data properly uploaded to the Services and processed or stored on a computer and/or computer network owned or controlled by Usermind in connection with the Services. If, at any time, Usermind fails to comply with the warranty in this Section, Subscriber may promptly notify Usermind in writing of any such noncompliance. Usermind will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Subscriber with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Subscriber may terminate this Agreement as its sole and exclusive remedy for such noncompliance.
9. WARRANTY DISCLAIMER
Usermind warrants to Subscriber that: (i) it has the power and authority to execute this Agreement and perform its obligations, (ii)its performance will not conflict with obligations it has to any third party, and (iii) Services, as provided, will conform materially with the Usermind-provided documentation. In the event of a breach of Section 9(iii), Subscriber’s sole remedy, and Usermind’s exclusive liability, shall be for Usermind to promptly correct any defects of which Subscriber specifically notifies Usermind in writing. If Usermind is unable, after a reasonable period correct such defect, the Order Document may be terminated and the fees paid in advance for the remainder of the term will be refunded. This is the sole remedy for a breach of Section 9 (iii).
EXCEPT AS SET FORTH ABOVE, THE SERVICES, THE SOFTWARE, AND USERMIND PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED"AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. USERMIND (AND ITS AGENTS, AFFILIATES,LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED,INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
10. LIMITATION OF LIABILITY
IN NO EVENT WILL USERMIND (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES, THE SOFTWARE, OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES, THE SOFTWARE, OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF USERMIND HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF USERMIND, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE,WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS, OR(ii) THE FEES PAID TO USERMIND HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING LIMITATION IN THIS SECTION 10 SHALL NOT LIMIT EITHER PARTY’S INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 5.3, CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 4, OR EITHER PARTY’S LIABILITIES ARISING OUT OF THE PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
11. U.S.GOVERNMENT MATTERS
Notwithstanding anything else, Subscriber may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), 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. Without limiting the foregoing Subscriber acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by SP are “commercial items” and according to DFAR section 252.227-7014(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 Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
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 Subscriber except with Usermind’s prior written consent. Usermind may transfer and assign any of its rights and obligations under this Agreement with Subscriber’s prior written consent. However, without consent, Usermind may assign this Agreement to any of its affiliates or to any successor to all or substantially all of its business related to this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). Both parties agree that 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 Subscriber does not have any authority of any kind to bind Usermind 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. Any notice or communication required or permitted under this Agreement shall be in writing to (a) Usermind at 83 Columbia St #305, Seattle, WA 98104 ,Attn: Legal, or (b) to Subscriber at the address provided during the Services purchase, registration or onboarding process. In addition, breach notices sent to Usermind must also be email to email@example.com, with Subject Heading: Breach Notice (but notice will be deemed legally received when physically delivered to Usermind as set forth in the next sentence). Notices shall be deemed to have been received by the addressee(i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or(iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. This Agreement will be governed by the laws of the State of Washington, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in King County, Washington, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction. Subscriber agrees to participate in press announcements, case studies,trade shows, or other forms reasonably requested by Usermind. Usermind is permitted to disclose that Subscriber is one of its customers to any third-party at its sole discretion.