Last Modified: January 23, 2024
1.1 “Applicable Laws” means all applicable U.S. and foreign federal, state, or local statutes, laws, rules and regulations including, without limitation, the Telephone Consumer Protection Act of 1991, the Controlling theAssault of Non-Solicited Pornography And Marketing Act of 2003, the California Online Privacy Protection Act of 2003, the California Consumer Privacy Act as amended by the California Privacy Rights Act of 2003, the General Data Protection Regulation (Regulation (EU) 2016/679) and the EU Directive 2002/58/EC, in each case, as updated, amended or replaced from time to time, and all other applicable statutes, laws, rules and regulations with respect to the collection, use and disclosure of data from or about end users and/or specific devices or otherwise relating to relating to privacy and/or marketing.
1.2 “Authorized User” means Customer’s employees, consultants, contractors, and agents: (i) who are authorized by Customer to access and use the Services under this Agreement; and (ii) for whom access to the Services has been purchased hereunder.
1.3 “Client-Side Software” means any Unify software in source or object code form that Unify expressly makes available to Customer for use in connection with the Services. For clarity, Client-Side Software shall include, without limitation, any pixel tag or snippet that Unify makes available to Customer for use in connection with the Services.
1.4 “Unify IP” means the Platform, the Client-Side Software, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the Services. For the avoidance of doubt, Unify IP includes Service Data and any information, data, or other content derived from Unify’s provision of the Services but does not include Customer Data.
1.5 “Customer Data” means data that is submitted, posted, or otherwise transmitted to Unify or the Services by or on behalf of Customer or an Authorized User, including all data and content made available through Customer’s or an Authorized User’s email account accessed in connection with the Services; provided that, for purposes of clarity, Customer Data as defined herein does not include Service Data.
1.6 “Service Data” means data and information made available to Customer or an Authorized User in connection with the Services, including data and information provided in response to queries, prompts or inputs of Customer Data as well as Third Party Product Data.
1.7 “Documentation” means Unify’s end user documentation relating to the Platform, if any.
1.8 “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, 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.
1.9 “Order” means: (i) a purchase order, order form, or other ordering document entered into by the Parties that incorporates this Agreement by reference; or (ii) if Customer registered for the Services through Unify’s online ordering process, the results of such online ordering process.
1.10 “Personal Data” means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located, including without limitation all data considered “personal information”, “personally identifiable information”, or something similar under Applicable Laws relating to data privacy.
1.11 “Platform” means Unify’s proprietary hosted software platform, as made available to Authorized Users from time to time.
1.12 “Professional Services” means training, migration, implementation, integration, or other professional services that are memorialized in writing in a Statement of Work and provided to Customer in connection with its use of the Platform hereunder.
1.13 “Services” means the products and/or services that are provided by Unify to Customer, including without limitation, the Platform, the Client-Side Software, the Third Party Products and any Professional Services.
1.14 “Statement of Work” means a written statement of work for Professional Services executed by both Parties that incorporates this Agreement by reference.
1.15 “Subscription Term” means the time period identified on the Order during which Customer’s Authorized Users may access and use the Services.
1.16 “Third Party Products” means any third-party application programming interfaces, services, products or data provided with, integrated with, or incorporated into the Services, including, without limitation, through integrations or connectors that are provided by Unify.
1.17 “Third Party Product Data” means any data (including Personal Data), reports, text, images, sound, video, code, insights or other content made available through or in connection with Third Party Products.
1.18 “Third Party Product Identifiers” means any logos, company names, domain names or other third party trademarks made available through or in connection with Third Party Products.
1.19 “Updates” means upgrades, patches, enhancements, or fixes for the Services that Unify provides to its customers generally without additional charge.
1.20 “Usage Limitations” means the usage limitations set forth in this Agreement and the Order, including without limitation any limitations on the number of Authorized Users (if any), and the applicable product, pricing, and support tiers agreed-upon by the Parties.
2. Access and Use.
2.1 Orders; Provision of Access. Upon mutual execution, each Order shall be incorporated into and form part of the Agreement. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the Parties after the date hereof. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, including without limitation the Usage Limitations and any limitations and restrictions set forth in an applicable Order, Customer may, solely through its Authorized Users, access and use the Services (including the Platform) during the Subscription Term on a non-exclusive, non-transferable (except in compliance with Section 14.8), and non-sublicensable basis. Such use is limited to Customer’s internal business purposes and the use cases, features and functionalities specified in the Order. The foregoing includes a limited license for Customer to install and use the Client-Side Software solely in connection with Customer’s authorized use of the Services. Customer shall implement such integrations and customizations as maybe reasonably required to enable Customer to make use of the Platform and Client-Side Software, in accordance with the instructions provided by Unify, which may include the placement of certain code, pixels, cookies, links or scripts provided by Unify on online properties owned or operated by Customer. Each Authorized User must have its own unique account on the Platform and Authorized Users may not share their account credentials with one another or any third party. Unify may use technological means to place reasonable use limits to prohibit excessive use of the Services, including excessive downloads or screen views that indicate a violation of this Agreement, such as sharing with third parties or attempting to circumvent the use limitations herein provided no such controls or means are designed to limit Customer’s authorized use of the Services in accordance with this Agreement and the applicable Order.
2.2 Documentation License. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, Unify hereby grants to Customer a non-exclusive, non-transferable (except in compliance with Section 14.8), and non-sublicensable license to use the Documentation during the Subscription Term solely for Customer’s internal business purposes in connection with its use of the Platform.
2.3 Service Updates. From time to time, Unify may provide Updates, and such Updates will become part of the Services and subject to this Agreement; provided that Unify shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Unify may make improvements and modifications to the Services at any time in its sole discretion; provided that Unify shall use commercially reasonable efforts to give Customer reasonable prior notice of any major changes that are reasonably expected to adversely impact Customer’s use of the Services.
2.4 Use Restrictions. Neither Customer nor any Authorized User shall use the Services for any purposes beyond the scope of the access expressly granted in this Agreement. Neither Customer nor any Authorized User shall at any time, directly or indirectly: (i) copy, modify, translate or create derivative works of the Services, whether in whole or in part, or otherwise incorporate any portion of the Services into Customer’s or any Authorized User’s products or services; (ii) rent, lease, reproduce, outsource, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation to any third party or act as a service bureau with respect thereto; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component or source code of the Services, in whole or in part, or any other trade secrets of Unify or any provider of Third Party Products; (iv) remove any proprietary notices from the Services; (v) use the Services in any manner or for any purpose that is harmful, defamatory, obscene, libelous or that otherwise infringes, misappropriates, or violates any intellectual property right or other right of any person; (vi) use the Services in any manner or for any purpose that violates Applicable Laws; (vii) access or use the Services (or any component thereafter, including the Unify IP) for purposes of competitive or benchmarking analysis of Unify or the Services, the development, provision, or use of any software or database derived from the Services or any competing service or product, or any other purpose that is to Unify’s detriment or commercial disadvantage, or the detriment or commercial disadvantage of Unify’s licensors; (viii) override, circumvent, bypass or breach any security device, feature, control, use limit or protection used by the Platform or attempt to do any of the foregoing, access or use the Platform other than by an Authorized User through the use of valid access credentials, transmit spam through the Services, or otherwise knowingly interfere with or disrupt the integrity or performance of the Services; (ix) input, upload, transmit, or otherwise provide to or through the Platform any information or materials, including Customer Data, that are unlawful or injurious or that infringe or otherwise violate any third party’s intellectual property or other rights, or that contain, transmit, or activate any Harmful Code; (x) export, remove or alter any trademark, logo, copyright or other proprietary notices associated with or made available through the Services; (xi) use the Services to determine a consumer’s eligibility for credit or insurance for personal, family or household purposes, employment, a government license or benefit or any other purpose governed by the Fair Credit Reporting Act; or (xii) use any Unify IP for any activity where use or failure of the Unify IP could lead to death, personal injury, or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control.
2.5 Reservation of Rights. Unify reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Unify IP.
2.6 Suspension. Notwithstanding anything to the contrary in this Agreement, Unify may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) Unify reasonably determines that (a) there is a threat or attack on any of the Unify IP; (b) Customer’s or any Authorized User’s use of the Unify IP disrupts or poses a security risk to the Unify IP or to any other customer or vendor of Unify; (c) Customer, or any Authorized User, is using the Unify IP for fraudulent or illegal activities; (d) subject to Applicable Laws, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (e) Unify’s provision of the Services to Customer or any Authorized User is prohibited by Applicable Laws; or (f) any Customer Data submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services may infringe or otherwise violate any third party’s intellectual property or other rights or Applicable Laws; (ii) any vendor of Unify has suspended or terminated Unify’s access to or use of any Third Party Products required to enable Customer to access the Services; or (iii) in accordance with Section 6.1 (any such suspension described in subclauses (i), (ii), or (iii), a “Service Suspension”). Unify shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Unify shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Unify will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
2.7 Service Data. Notwithstanding anything to the contrary in this Agreement, Unify may monitor Customer’s use of the Services and collect and compile Service Data. As between Unify and Customer, all right, title, and interest in Service Data, and all intellectual property rights therein, belong to and are retained solely by Unify. Customer acknowledges that Unify may compile Service Data based on Customer Data input into the Services. Notwithstanding anything to the contrary in this Agreement, Customer acknowledges that Unify may use and disclose Service Data for any lawful purpose.
2.8 Free Trial. Unify may make the Services available to Customer on a demonstration, pre-release, or trial basis free of charge or features that are presented as alpha, beta, experimental, pilot, limited release, early access, non-production or evaluation offerings (collectively, “Trial Basis Services”). Notwithstanding anything to the contrary in this Agreement, if Unify provides Customer access to Trial Basis Services, (i) Customer acknowledges that the Trial Basis Services are provided “AS IS”, without warranty of any kind, and (ii) Unify’s obligations pursuant to Sections 4 (“Support”) and 11 (“Indemnification”) shall not apply to such Trial Basis Services.
3. Customer Responsibilities.
3.1 General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer acknowledges and agrees that Customer is and will be responsible for all acts and omissions of Authorized Users and for all use of Authorized Users’ accounts including anyone accessing the Services using an Authorized Users’ account credentials. Customer also acknowledges and agrees that any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to suchAuthorized User’s use of the Services and shall cause Authorized Users to comply with such provisions. Customer will immediately notify Unify if Customer suspects or becomes aware of any unauthorized use of the Services, including, without limitation, any breach of Section 2.4 and any loss or theft of any Authorized User’s username, password or other credentials used to access the Services.
3.3 Third Party Products. Unify may from time to time make Third Party Products available to Customer in connection with the Services or Unify may allow for certain Third Party Products to be integrated with the Platform to allow for the transmission of Customer Data from such Third Party Products into the Platform. Such Third PartyProducts may be subject to their own terms and conditions. Some Third Party Products are subject to their own terms and conditions entered into between Customer and such third party provider. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Products and for complying with any applicable terms or conditions thereof. Except as otherwise expressly permitted by any such terms and conditions, Customer acknowledges and agrees that any restriction on the use of the Services in Section 2.4 of this Agreement shall also apply to Customer’s and each Authorized User’s use of Third Party Products and Third Party Product Data, and that neither Customer nor any Authorized User shall export any Third Party Product Data to Customer’s or such Authorized User’s systems. Unify is not responsible for the operation of any Third Party Products, nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Products, and Unify makes no representations or warranties of any kind with respect to Third Party Products or their respective providers. Any exchange of data or other interaction between Customer and a third party provider is solely betweenCustomer and such third party provider and is governed by such third party’s terms and conditions. Upon the termination of Customer’s access to Third Party Products or Unify’s notice to Customer, Customer will and will require all Authorized Users to cease all access to and delete all Third Party Product Data, including any backup copies thereof, and Customer will certify such destruction in writing upon Unify’s request. If Customer does not agree to abide by the applicable terms for any such Third Party Products, then Customer should not install or use such Third Party Products. By authorizing Unify to transmit Customer Data from Third Party Products into the Platform, Customer represents and warrants to Unify that it has all right, power, and authority to provide such authorization.
3.4 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (i) all Customer Data, including its content and use; (ii) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (iii) Customer's information technology infrastructure, including email, computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party platforms or service providers ("Customer Systems"); (iv) the security and use of Customer's and its Authorized Users' access credentials; and (v) all access to and use of the Services directly or indirectly by or through the Customer Systems or its or its Authorized Users' access credentials, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
3.5 Email Account Access. Customer shall provide Unify with all of Customer’s and applicable Authorized Users’ email account credentials and enable all authorization features required to allow Unify to fully access and use Customer’s and applicable Authorized Users’ email account systems, including to send and receive emails and calendar invites on Customer’s and applicable Authorized Users’ behalf and otherwise allow Unify to perform the Services (the “Authorization Credentials”). Unify shall not be responsible or liable for any failure to perform or delay in the performance of the Services that is caused by Customer’s delay in or failure to provide the Authorization Credentials.
3.6 Customer Authorization. Customer represents, warrants and covenants that Customer has obtained all necessary consents and authorizations required by Applicable Laws and Customer’s contractual obligations to Unify and/or any third party to make the Customer Data and Authorization Credentials available toUnify, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy). Any agreements created between Customer and any third party through use of the Services are not binding on Unify, and Unify is not liable for, or obligated to enforce, any such agreements. Customer shall promptly communicate any Customer is solely responsible for ensuring that any third party requests for the restriction of processing of any data, including, without limitation, opt-outs from the receipt of emails from Customer or Authorized Users or do not contact requests, are promptly communicated to Unify.
4. Support. During the Subscription Term, Unify will use commercially reasonable efforts to provide Customer with basic customer support via Unify’s standard support channels during Unify’s normal business hours.
5. Professional Services. Unify may perform Professional Services to the extent described in an Order or Statement of Work. Customer will provide Unify all reasonable cooperation required for Unify to perform the Professional Services, including without limitation timely access to any reasonably required Customer materials, information, or personnel. Subject to any limitations identified in an Order or Statement of Work, Customer will reimburse Unify’s reasonable travel and lodging expenses incurred in providing Professional Services. To the extent the Professional Services result in any software code or other tangible work product (“Work Product”), all such Work Product will remain owned solely and exclusively by Unify and may be used by Customer solely in connection with Customer’s authorized use of the Services under this Agreement.
6. Fees and Taxes.
6.2 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Unify’s income.
7. Confidential Information.
7.1 Definition. From time to time during the Subscription Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media that: (i) is marked, designated or otherwise identified as “confidential” or something similar at the time of disclosure or within a reasonable period of time thereafter; or (ii) would be considered confidential by a reasonable person given the nature of the information or the circumstances of its disclosure (collectively, “Confidential Information”). Except for Personal Data, Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party without use of, reference to, or reliance upon the disclosing Party’s Confidential Information.
7.2 Duty. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, contractors, and agents who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder (“Representatives”). The receiving Party will be responsible for all the acts and omissions of its Representatives as they relate to Confidential Information hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. Further, notwithstanding the foregoing, each Party may disclose the terms and existence of this Agreement to its actual or potential investors, debtholders, acquirers, or merger partners under customary confidentiality terms.
7.3 Return of Materials; Effects of Termination/Expiration. On the expiration or termination of the Agreement, the receiving Party shall 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. Each Party’s obligations of non-use and non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three (3) years from the date of termination or expiration of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
8. Data Security and Processing of Personal Data.
8.1 Customer Data. Customer hereby grants to Unify a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Unify to provide the Services, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Service Data.
8.2 Security Measures. Unify will implement and maintain commercially reasonable administrative, physical, and technical safeguards designed to protect Customer Data (including Personal Data) from unauthorized access, use, alteration, or disclosure.
9. Intellectual Property Ownership; Feedback.
9.1 Unify IP. Customer acknowledges that, as between Customer and Unify, Unify owns all right, title, and interest, including all intellectual property rights, in and to the Unify IP and, with respect to Third Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third Party Products.
9.2 Customer Data. Unify acknowledges that, as between Unify and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data.
9.3 Aggregated Data. Customer acknowledges and agrees that Unify may use Customer Data to generate data and information related to or derived from Customer Data or Customer’s use of the Services that has been aggregated and/or anonymized by Unify and that Unify shall own all right, title, interest, including all intellectual property rights, in and to such aggregated and/or anonymized data.
9.4 Feedback. If Customer, any Authorized User, or any of Customer’s employees or contractors sends or transmits any communications or materials to Unify by mail, email, telephone, or otherwise, suggesting or recommending changes to the Unify IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Unify is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.
10. Warranty Disclaimer. THE SERVICES, UNIFY IP, THIRD PARTY PRODUCTS, THIRD PARTY PRODUCT DATA AND THIRD PARTY PRODUCT IDENTIFIERS ARE PROVIDED “AS IS” AND UNIFY HEREBY DISCLAIMS ALL WARRANTIES,WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. UNIFY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, ANDALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. UNIFY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, UNIFY IP, THIRD PARTY PRODUCT DATA, THIRD PARTY PRODUCT IDENTIFIERS, THIRD PARTY PRODUCTS OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER PLATFORM, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW, UNIFY HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ANY WARRANTY THAT THIRD PARTY PRODUCT DATA, THIRD PARTY PRODUCT IDENTIFIERS OR ANY OTHER INFORMATION CONTAINED IN OR MADE AVAILABLE IN CONNECTION WITH ANY THIRD PARTY PRODUCTS HAS BEEN COLLECTED IN COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS OR THAT ANY THIRD PARTY PRODUCT DATA, THIRD PARTY PRODUCT IDENTIFIERS OR ANY OTHER INFORMATION CONTAINED IN OR MADE AVAILABLE IN CONNECTION WITH THE THIRD PARTY PRODUCTS IS CURRENT OR ERROR-FREE. CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DECISIONS OR ACTIONS IT TAKES BASED ON THE THIRD PARTY PRODUCTS, AND UNIFY HEREBY DISCLAIMS THE RESULTS OF ANY SUCH DECISIONS OR ACTIONS.
11.1 Unify Indemnification.
(a) Unify shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third Party Claim”) brought against Customer alleging that use of the Platform in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights; provided that Customer promptly notifies Unify in writing of the claim, cooperates with Unify, and allows Unify sole authority to control the defense and settlement of such claim.
(b) If such a claim is made or appears possible, Customer agrees to permit Unify, at Unify’s sole discretion: to (i) modify or replace the Services, or component or part thereof, to make it non-infringing; or (ii) attempt to obtain the right for Customer to continue use. If Unify determines that neither alternative is reasonably commercially available, Unify may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
(c) This Section 11.1 will not apply to the extent that the alleged infringement arises from: (i) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Unify or authorized by Unify in writing; (ii) modifications to the Services not made by Unify; (iii) use of the Services other than in the manner permitted or authorized under this Agreement; (iv) Customer Data; (v) Third Party Products or Customer’s use thereof; (vi) Third Party Product Data of Customer’s use thereof; or (vii) Third Party Product Identifiers or Customer’s use thereof.
11.2 Customer Indemnification. Customer shall indemnify, hold harmless, and, at Unify’s option, defend Unify and Unify’s affiliates, officers, directors, agents, representatives, personnel and licensors from and against any Losses resulting from any Third Party Claim: (a) arising out of or in connection with Customer’s or any Authorized User’s breach of Sections 2.4 or 3; (b) alleging that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property or other rights; (c) Customer-Controlled Matters; and (d) any Third Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct, (ii) use of the Services in a manner not authorized by this Agreement, (iii) modifications to the Services not made by Unify, or (iv) use of the Services in combination with data, software, hardware, equipment or technology not provided by Unify or authorized by Unify in writing; in each case provided that Customer may not settle any Third Party Claim against Unify unless Unify consents to such settlement, and further provided that Unify will have the right, at its option, to defend itself against any such Third Party Claim or to participate in the defense thereof by counsel of its own choice.
11.3 Sole Remedy. THIS SECTION 11 SETS FORTH CUSTOMER’S SOLE REMEDIES AND UNIFY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL UNIFY’S AGGREGATE LIABILITY UNDER THIS SECTION 11 EXCEED ONE TIMES (1X) THE TOTAL AMOUNTS PAID TO UNIFY IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
12. Limitations of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TOUSE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO UNIFY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM. IN NO EVENT WILL UNIFY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT(INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY LIABILITY ARISING OUT OF THE THIRD PARTY PRODUCTS, THIRD PARTY PRODUCT DATA OR THIRD PARTY PRODUCT IDENTIFIERS, OR CUSTOMER’S OR ANY AUTHORIZED USER’S USE THEREOF.
13. Subscription Term and Termination.
13.1 Subscription Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue until the expiration of the last Subscription Term set forth in an applicable Order issued hereunder.
13.2 Termination. In addition to any other express termination right set forth in this Agreement:
(a) Unify may terminate this Agreement and/or any or all Orders hereunder, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than ten (10) calendar days after Unify’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 2.3 or Section 7;
(b) either Party may terminate this Agreement, effective on written notice to the other Party, if all Subscription Terms for Orders issued hereunder have expired or been terminated;
(c) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) calendar days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(d) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
13.3 Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Services and, without limiting Customer’s obligations under Section 7, Customer shall delete, destroy, or return all copies of the Unify IP and certify in writing to the Unify that the Unify IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
13.4 Survival. This Section 13.4 and Sections 1, 5, 7, 9, 10, 11, 12, 13.3, and 14 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
14.1 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, the Order; (ii) second, this Agreement; and (iii) lastly, any other documents incorporated herein by reference.
14.2 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) to Unify shall be in writing and delivered by hand or by certified mail or overnight delivery service to:
Unify AI Business Corporation
Attn: Legal Department
360 Pine Street, Suite 500
San Francisco, CA 94101
With a copy to:
All Notices to Customer shall be sent by email to the email address associated with Customer’s account or will be posted to the Platform. Notice is effective only: (i) upon receipt by (or, with respect to email, electronic confirmation of digital delivery to) the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section 14.2.
14.3 Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
14.4 Amendment and Modification. Unify may change this Agreement (except for any Orders) from time to time at its discretion. The date on which the Agreement was last modified will be updated at the top of thisAgreement. Unify will use commercially reasonable efforts to provide Customer with reasonable notice prior to any amendments or modifications taking effect, either by emailing the email address associated with Customer’s account on the Services or by another method reasonably designed to provide notice to Customer. If Customer accesses or uses the Services after the effective date of the revised Agreement, such access and use will constitute Customer’s acceptance of the revised Agreement beginning at the next Subscription Renewal Term (as such term is defined in an applicable Order) or, if Customer enters into a new Order with Unify, as of the date of execution of such Order.
14.5 Waiver. No failure or delay by either Party in exercising any right or remedy available to it in connection with this Agreement will constitute a waiver of such right or remedy. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the Party granting the waiver.
14.6 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
14.7 Governing Law. This Agreement is governed by and construed in accordance with the Federal Arbitration Act, applicable federal law, and the laws of the State of California excluding its conflict of laws provisions.
14.8 Dispute Resolution. In the event of any controversy or claim arising out of or in connection with this Agreement, or a breach thereof, the Parties agree to use the following procedure. Except as otherwise set forth in this Agreement, the Parties shall first attempt to settle the dispute by good faith discussion. The Parties consent and submit to the exclusive jurisdiction and venue over any action that may arise out of or in connection with this Agreement in the courts located in San Francisco, California, provided that either Party may, without limiting any of its rights or remedies (whether under this Agreement, at law, in equity or otherwise), seek injunctive relief and other equitable remedies at any time in any court of competent jurisdiction for any actual or threatened breach of this Agreement relating to intellectual property rights or confidentiality obligations.
14.9 Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Unify. Any purported assignment or delegation in violation of this Section 14.9 will be null and void. We may transfer, assign, or delegate this Agreement and our rights and obligations without consent. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
14.10 Publicity. Unify may use Customer’s name and logo in marketing. Public announcements beyond referencing Customer as a customer of Unify shall be subject to Customer’s approval, not to be unreasonably withheld.
14.11 Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.
14.12 US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
14.13 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Customer, Section 2.3, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.