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README.md:  
https://TechContracts.com/ THE TECH CONTRACTS HANDBOOK Cloud Computing {_Agreements}, Software Licenses, and Other IT Contracts for Lawyers and Businesspeople Third Edition by David W. Tollen (ABA Publishing - Intellectual Property Law Section of the American Bar Association; 2021)
Form Contract SaaS Terms of Service w/ Sub-{_Customers}
{_Provider}-Friendly; SaaS Access for {_Customer}’s Own {_Customers}/Clients; Online Execution
You may use the form contract below subject to the “Terms of Use” posted at https://techcontracts.com/terms-of-use-and-privacy-policy/. In addition to the Terms of Use, PLEASE READ THE FOLLOWING DISCLAIMER BEFORE USING THE FORM CONTRACT: NEITHER TECH CONTRACTS ACADEMY®, LLC NOR THE AUTHOR OR PUBLISHER, OR ANYONE AFFILIATED WITH THEM, REPRESENTS THAT THE FORM CONTRACT BELOW WILL MEET YOUR SPECIFIC GOALS, PROTECT YOUR SPECIFIC INTERESTS, OR WITHSTAND CHALLENGES TO ITS LEGAL OR FACTUAL SUFFICIENCY. The form contract below is general in nature and may not be sufficient for a specific contractual, technological, or legal problem or dispute. THE FORM IS NOT PROVIDED WITH ANY GUARANTY, WARRANTY, OR REPRESENTATION AS TO QUALITY OR SUITABILITY FOR ANY PARTICULAR PURPOSE. Publication of the form does not constitute the practice of law and is not legal counsel or advice. Neither Tech Contracts Academy, LLC™ or the author or the publisher of this website or The Tech Contracts Handbook, or anyone affiliated with them, is rendering a legal or other professional service. The form should not be relied upon as a substitute for consultation with an attorney.
Note that this document uses Microsoft Word multi-level bullets/numbering for section numbers and cross-referencing features for section references. Please delete all text above the following dotted line, as well as the line itself and the page-break following it, before using this form. ------------------------------------  Posted/Revised: {Form.RevisionDate.YMD}
Ti=TERMS OF SERVICE
0.0.sec=Please read these terms of service carefully. By clicking “accepted and agreed to,” {_Customer} agrees to these terms and conditions.
0.1.sec=These Terms of Service constitute an agreement (this “{DefT.Agreement}”) by and between {Provider.Name.Full}, {Provider.Personality.type.a} whose principal place of business is {Provider.US.Adr.1,2,3} (“{DefT.Provider}”) and the corporation, LLC, partnership, sole proprietorship, or other business entity executing this {_Agreement} (“{DefT.Customer}”). This {_Agreement} is effective as of the date {_Customer} clicks “Accepted and Agreed To” (the “{DefT.Effective_Date}”). {_Customer}’s use of and {_Provider}’s provision of {_Provider}’s {_SaaS} (as defined below in Section {1.8.Xnum}) are governed by this {_Agreement}, as are {_Customer}’s authorizations to grant its own customers use of the {_SaaS}.
0.00.sec=Each party acknowledges that it has read this {_Agreement}, understands it, and agrees to be bound by its terms, and that the person signing on its behalf has been authorized to do so. The person executing this {_Agreement} on {_Customer}’s behalf represents that he or she has the authority to bind {_Customer} to these terms and conditions.
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1.Ti=DEFINITIONS
1.0.sec=The following capitalized terms will have the following meanings whenever used in this {_Agreement}.
1.1.sec=“{DefT.AUP}” means {_Provider}’s acceptable use policy currently posted at {AUP.Hyperlink}.
1.2.sec=“{DefT.Client_ToS}” means such terms of service as {_Provider} may require for users of the {_SaaS} who are not {_Provider}’s {_Customers} or their employees.
1.3.sec=“{DefT.Customer’s_Clients}” means any of {_Customer}’s clients or customers or other third parties {_Customer} gives access to the {_SaaS}, including without limitation such companies’ agents and employees.
1.4.sec=“{DefT.Customer_Data}” means all information processed or stored through the {_SaaS} by {_Customer} or on {_Customer}’s behalf. {_Customer} data does not include payment records, credit cards or other information {_Customer} uses to pay {_Provider}, or other information and records related to {_Customer}’s account, including without limitation identifying information related to {_Customer} staff involved in payment or other management of such account.
1.5.sec=“{DefT.Documentation}” means {_Provider}'s standard manual related to use of the {_SaaS}, as well as {Provider.Documentation.Hyperlink}.
1.6.sec=“{DefT.Order}” means an order for access to the {_SaaS}, executed as follows: {Order.Execute.Method}.
1.7.sec=“{DefT.Privacy/Security_Law}” means privacy and security laws governing {_Provider}’s handling of {_Customer_Data} (if any).
1.8.sec=“{DefT.SaaS}” means {_Provider}’s {Service.Name}.
1.9.sec=“{DefT.SLA}” means {_Provider}’s standard service level agreement, currently posted at {SLA.Hyperlink}.
1.10.sec=“{DefT.Term}” is defined in Section {11.1.Xnum} below.
1.11.sec=“{DefT.User}” means any company or individual who uses the {_SaaS} on {_Customer}’s behalf or through {_Customer}’s account or passwords, whether authorized or not, including without limitation {_Customer’s_Clients}.
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2.Ti=THE SAAS
2.1.Ti=Use of the {_SaaS}
2.1.sec=During the {_Term}, {_Customer} may access and use the {_SaaS} pursuant to the terms of any outstanding {_Order}, including such features and functions as the {_Order} requires.
2.2.Ti=Service Levels
2.2.sec={_Provider} shall provide the remedies listed in the {_SLA} for any failure of the {_SaaS} listed in the {_SLA}. Such remedies are {_Customer}’s sole remedy for any failure of the {_SaaS}, and {_Customer} recognizes and agrees that if the {_SLA} does not list a remedy for a given failure, it has no remedy; provided this sentence does not restrict any {_Customer} right to terminate this {_Agreement} for breach where applicable. Credits issued pursuant to the {_SLA} apply to outstanding or future invoices only and are forfeit upon termination of this {_Agreement}. {_Provider} is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation after termination of this {_Agreement}.
Note=Was "Documentation:"
2.3.Ti={_Documentation}
2.3.sec={_Customer} may reproduce and use the {_Documentation} solely as necessary to support {_Users}’ use of the {_SaaS}.
2.4.Ti={_SaaS} Revisions
2.4.sec={_Provider} may revise the {_SLA} or the features and functions of the {_SaaS} at any time, provided no such revision materially reduces features or functionality provided pursuant to an outstanding {_Order}.
NoteLawyer=Should there be a "Purpose" definition for use by the {_Customer}? (This applies to use by {_Customer}'s Clients.)
2.5.Ti={_Customer’s_Clients}
2.5.sec=Subject to the provisions below of this Section {2.4.Xnum}, {_Customer} may authorize {_Customer’s_Clients} to access and use the {_SaaS} in such numbers and according to such restrictions as are set forth in the applicable {_Order}, solely for the following purposes: {SaaS.Purpose.cl}. {_Customer} shall: (a) provide complete name and contact information for each proposed {_Customer’s_Client} upon or before providing such access, and update such information as soon as it become aware of a change; and (b) require that each {_Customer’s_Client} execute the then-standard {_Client_ToS}. {_Customer} shall make no representations or warranties regarding the {_SaaS} or any other matter, to {_Customer’s_Clients} or {_Users} or any other third party, from or on behalf of {_Provider}, and {_Customer} shall not create or purport to create any obligations or liabilities for {_Provider}. {_Provider} may reject any proposed {_Customer’s_Client} for any reason that does not violate applicable law, in its sole discretion. {_Customer} shall be jointly and severally liable to {_Provider} for {_Customer’s_Client}’s compliance with the {_Client_ToS}. {_Provider} shall have no obligation to provide support or other services, {_SLA} remedies, or other remedies to {_Customer’s_Clients}.
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3.Ti=SAAS FEES
3.1.Ti=Fees
3.1.sec={_Customer} shall pay {_Provider} the fee set forth in each {_Order} for each {_Term}. {_Provider} will not be required to refund fees under any circumstances. {_Provider}’s invoices are due within 30 days of issuance. For late payment, {_Customer} shall pay interest charges from the time the payment was due at the rate that is the lower of {Fee.Late.InterestChargePerMonth.%} per month or the highest rate permissible under applicable law.
3.2.Ti=Taxes
3.2.sec=Amounts due under this {_Agreement} are payable to {_Provider} without deduction for any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value-added tax, whether or not withheld at the source (collectively, “{DefT.Sales_Tax}”). Except as forbidden by applicable law, {_Provider} may require that {_Customer} submit applicable {_Sales_Taxes} to {_Provider}. However, the preceding sentence does not apply to the extent that {_Customer} is tax exempt, provided it gives {_Provider} a valid tax exemption certificate within 30 days of the {_Effective_Date}. {_Provider}’s failure to include any applicable tax in an invoice will not waive or dismiss its rights or obligations pursuant to this Section {3.2.Xnum}. If applicable law requires withholding or deduction of {_Sales_Taxes} or any other tax or duty, {_Customer} shall separately pay {_Provider} the withheld or deducted amount, over and above fees due. For the avoidance of doubt, this Section {3.2.Xnum} does not govern taxes based on {_Provider}’s net income.
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4.Ti={_Customer} DATA & PRIVACY
4.1.Ti=Use of {_Customer_Data}
4.1.sec={_Provider} shall not: (a) access, process, or otherwise use {_Customer_Data} other than as necessary to facilitate the {_SaaS}; or (b) give {_Customer_Data} access to any third party, except {_Provider}’s subcontractors that have a need for such access to facilitate the {_SaaS} and are subject to a reasonable written agreement governing the use and security of {_Customer_Data}. Further, {_Provider}: (c) shall exercise reasonable efforts to prevent unauthorized disclosure or exposure of {_Customer_Data}; and (d) shall comply with all {_Privacy/Security_Laws} that are applicable both specifically to {_Provider} and generally to data processors in the jurisdictions in which {_Provider} does business and operates physical facilities.
4.2.Ti=Statutory Special Terms
4.2.sec=The parties recognize and agree that {CustomerData.SpecialTerms.Annex.Xref}: (a) governs the following {_Customer_Data}: {CustomerData.SpecialTerms.DataDescription.cl}; and (b) applies only to such {_Customer_Data} and not to any of the parties’ other rights or duties pursuant to this {_Agreement}. If {_Provider} receives a “right to know,” deletion, “right to be forgotten,” or similar request related to {_Customer_Data}, {_Provider} may respond in accordance with applicable law. Nothing in this {_Agreement} precludes {_Provider} from asserting rights or defenses it may have under applicable law related to such requests.
4.3.Ti=Additional Fees
4.3.sec={_Customer} recognizes and agrees that {_Provider} may charge additional fees (without limitation) (a) for activities (if any) required by {_Privacy/Security_Laws} and (b) for activities {_Customer} requests to help it comply with {_Privacy/Security_Laws}.
4.4.Ti=Privacy Policy
4.4.sec={_Customer} acknowledges {_Provider}’s privacy policy at {Provider.PrivacyPolicy.Hyperlink}, and {_Customer} recognizes and agrees that nothing in this {_Agreement} restricts {_Provider}’s right to alter such privacy policy.
4.5.Ti={_De-Identified_Data}
4.5.sec=Notwithstanding the provisions above of this Article {4.Xnum}, {_Provider} may use, reproduce, sell, publicize, or otherwise exploit {_De-Identified_Data} (as defined below) in any way, in its sole discretion, including without limitation aggregated with data from other {_Customers}. (“{DefT.De-Identified_Data}” refers to {_Customer_Data} with the following removed: information that identifies or could reasonably be used to identify an individual person, a household, a {_Customer’s_Client}, or {_Customer}.)
4.6.Ti=Erasure
4.6.sec={_Provider} may permanently erase {_Customer_Data} if {_Customer}’s account is delinquent, suspended, or terminated for 30 days or more, without limiting {_Provider}’s other rights or remedies.
4.7.Ti=Required Disclosure
4.7.sec=Notwithstanding the provisions above of this Article {4.Xnum}, {_Provider} may disclose {_Customer_Data} as required by applicable law or by proper legal or governmental authority. {_Provider} shall give {_Customer} prompt notice of any such legal or governmental demand and reasonably cooperate with {_Customer} in any effort to seek a protective order or otherwise to contest such required disclosure, at {_Customer}’s expense.
4.8.Ti=Risk of Exposure
4.8.sec={_Customer} recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the {_SaaS}, {_Customer} assumes such risks. {_Provider} offers no representation, warranty, or guarantee that {_Customer_Data} will not be exposed or disclosed through errors or the actions of third parties.
4.9.Ti=Data Accuracy
4.9.sec={_Provider} shall have no responsibility or liability for the accuracy of data uploaded to the {_SaaS} by {_Customer}, including without limitation {_Customer_Data} and any other data uploaded by {_Users} or {_Customer’s_Clients}.
4.10.Ti={_Excluded_Data}
4.10.sec={_Customer} warrants that (a) it has not and will not transmit {_Excluded_Data} (as defined below), or permit transmission of {_Excluded_Data}, to {_Provider} or its computers or other media and, (b) to the best of its knowledge, {_Customer_Data} does not and will not include {_Excluded_Data}. {_Customer} shall inform {_Provider} of any {_Excluded_Data} within {_Customer_Data} promptly after discovery (without limiting {_Provider}’s rights or remedies). {_Customer} recognizes and agrees that: (i) the provisions of this {_Agreement} related to {_Customer_Data} do not apply to {_Excluded_Data}; (ii) {_Provider} has no liability for any failure to provide protections in the {_Excluded_Data_Laws} (as defined below) or otherwise to protect {_Excluded_Data}; and (iii) {_Provider}’s systems are not intended for management or protection of {_Excluded_Data} and may not provide adequate or legally required security for {_Excluded_Data}. {_Provider} is not responsible or liable for any data exposure or disclosure or related loss to the extent that it involves {_Excluded_Data}. (“{DefT.Excluded_Data}” means {ExcludedData.Def.cl}. “{DefT.Excluded_Data_Laws}” means any law or regulation governing {_Excluded_Data}, including without limitation any law or regulation protecting privacy or security rights of {_Excluded_Data} subjects, as well as the following statutes and regulations: {ExcludedData.Laws.cl}.)
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5.Ti={_Customer}’s RESPONSIBILITIES & RESTRICTIONS
5.1.Ti=Acceptable Use
5.1.sec={_Customer} shall comply with the {_AUP}. {_Customer} shall not: (a) use the {_SaaS} for service bureau or time-sharing purposes or in any other way allow third parties to exploit the {_SaaS}, except {_Customer’s_Clients} as specifically authorized by this {_Agreement}; (b) provide {_SaaS} passwords or other log-in information to any third party, except {_Customer’s_Clients} as specifically authorized by this {_Agreement}; (c) share non-public {_SaaS} features or content with any third party, except {_Customer’s_Clients} as specifically authorized by this {_Agreement}; (d) access the {_SaaS} in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics, or to copy any ideas, features, functions or graphics of the {_SaaS}; or (e) engage in web scraping or data scraping on or related to the {_SaaS}, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that it suspects any breach of the requirements of this Section {5.1.Xnum}, including without limitation by {_Users}, {_Provider} may suspend {_Customer}’s access to the {_SaaS} without advanced notice, in addition to such other remedies as {_Provider} may have. Neither this {_Agreement} nor the {_AUP} requires that {_Provider} take any action against {_Customer} or any {_User} or other third party for violating the {_AUP}, this Section {5.1.Xnum}, or this {_Agreement}, but {_Provider} is free to take any such action it sees fit.
5.2.Ti=Unauthorized Access
5.2.sec={_Customer} shall take reasonable steps to prevent unauthorized access to the {_SaaS}, including without limitation by protecting its passwords and other log-in information. {_Customer} shall notify {_Provider} immediately of any known or suspected unauthorized use of the {_SaaS} or breach of its security and shall use best efforts to stop said breach.
5.3.Ti=Compliance with Laws
5.3.sec=In its use of the {_SaaS}, {_Customer} shall comply with all applicable laws, including without limitation {_Privacy/Security_Laws}.
5.4.Ti={_Customer’s_Clients} & Other {_Users}; {_SaaS} Access
5.4.sec={_Customer} is responsible and liable for: (a) {_Customer’s_Clients}’ and other {_Users}’ use of the {_SaaS}, including without limitation unauthorized {_User} conduct and any {_User} conduct that would violate the {_AUP} or the requirements of this {_Agreement} applicable to {_Customer}; and (b) any use of the {_SaaS} through {_Customer}’s account, whether authorized or unauthorized.
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6.Ti=IP & FEEDBACK
6.1.Ti=IP Rights to the {_SaaS}
6.1.sec={_Provider} retains all right, title, and interest in and to the {_SaaS}, including without limitation all software used to provide the {_SaaS} and all graphics, user interfaces, logos, and trademarks reproduced through the {_SaaS}. This {_Agreement} does not grant {_Customer} any intellectual property license or rights in or to the {_SaaS} or any of its components. {_Customer} recognizes that the {_SaaS} and its components are protected by copyright and other laws.
6.2.Ti={_Feedback}
6.2.sec={_Provider} has not agreed to and does not agree to treat as confidential any {_Feedback} (as defined below) that {_Customer}, {_Customer’s_Clients}, or other {_Users} give {_Provider}, and nothing in this {_Agreement} or in the parties’ dealings arising out of or related to this {_Agreement} will restrict {_Provider}’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit {_Feedback}, without compensating or crediting {_Customer}. {_Feedback} will not be considered {_Customer}’s trade secret. (“{DefT.Feedback}” refers to any suggestion or idea for improving or otherwise modifying any of {_Provider}’s products or services.)
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7.Ti=CONFIDENTIAL INFORMATION
7.0.sec=“{DefT.Confidential_Information}” refers to the following items {_Provider} discloses to {_Customer}: (a) any document {_Provider} marks “Confidential”; (b) any information {_Provider} orally designates as “Confidential” at the time of disclosure, provided {_Provider} confirms such designation in writing within {ConfInfo.Provider.Confirmation.Days.cl}; (c) the {_Documentation} and {ConfInfo.Provider.Include.cl}, whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information {_Customer} should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, {_Confidential_Information} does not include information that: (i) is in {_Customer}’s possession at the time of disclosure; (ii) is independently developed by {_Customer} without use of or reference to {_Confidential_Information}; (iii) becomes known publicly, before or after disclosure, other than as a result of {_Customer}’s improper action or inaction; or (iv) is approved for release in writing by {_Provider}.
7.1.Ti=Nondisclosure
NoteLawyer=Should this be the same as a "Purpose" definition for use by the {_Customer}? (Note that the only definition of "Purpose" so far is use by {_Customer}'s Clients.)
7.1.sec={_Customer} shall not use {_Confidential_Information} for any purpose other than {SaaS.Purpose.cl} (the “{DefT.Purpose}”). {_Customer}: (a) shall not disclose {_Confidential_Information} to any employee or contractor of {_Customer} unless such person needs access in order to facilitate the {_Purpose} and executes a nondisclosure agreement with {_Customer} with terms no less restrictive than those of this Article {6.2.Xnum}; and (b) shall not disclose {_Confidential_Information} to any other third party without {_Provider}’s prior written consent. Without limiting the generality of the foregoing, {_Customer} shall protect {_Confidential_Information} with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. {_Customer} shall promptly notify {_Provider} of any misuse or misappropriation of {_Confidential_Information} that comes to {_Customer}’s attention. Notwithstanding the foregoing, {_Customer} may disclose {_Confidential_Information} as required by applicable law or by proper legal or governmental authority. {_Customer} shall give {_Provider} prompt notice of any such legal or governmental demand and reasonably cooperate with {_Provider} in any effort to seek a protective order or otherwise to contest such required disclosure, at {_Provider}’s expense.
7.2.Ti=Termination & Return
7.2.sec=With respect to each item of {_Confidential_Information}, the obligations of Section {7.1.Xnum} above ({7.1.Ti}) will terminate {Conf.Engage.Life.FromDisclosure.Period} after the date of disclosure; provided that such obligations related to {_Confidential_Information} constituting {_Provider}’s trade secrets shall continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this {_Agreement}, {_Customer} shall return all copies of {_Confidential_Information} to {_Provider} or certify, in writing, the destruction thereof.
7.3.Ti=Injunction
7.3.sec={_Customer} agrees that: (a) no adequate remedy exists at law if it breaches any of its obligations in this Article {7.Xnum}; (b) it would be difficult to determine the damages resulting from its breach of this Article {7.Xnum}, and such breach would cause irreparable harm to {_Provider}; and (iii) a grant of injunctive relief provides the best remedy for any such breach, without any requirement that {_Provider} prove actual damage or post a bond or other security. {_Customer} waives any opposition to such injunctive relief or any right to such proof, bond, or other security. (This Section {7.3.Xnum} does not limit either party’s right to injunctive relief for breaches not listed.)
7.4.Ti=Retention of Rights
7.4.sec=This {_Agreement} does not transfer ownership of {_Confidential_Information} or grant a license thereto. {_Provider} will retain all right, title, and interest in and to all {_Confidential_Information}.
7.5.Ti=Exception & Immunity
7.5.0.sec=Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), {_Customer} is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this {_Agreement}:
7.5.1.Ti=IMMUNITY
7.5.1.sec=An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that- (A) is made- (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
7.5.2.Ti=USE OF TRADE SECRET INFORMATION IN ANTI-RETALIATION LAWSUIT
7.5.2.sec=An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
7.5.=[G/Z/ol-a/2]
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8.Ti=REPRESENTATIONS & WARRANTIES
8.1.Ti=From {_Provider}
8.1.0.sec={_Provider} represents and warrants that it is the owner of the {_SaaS} and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights to use the {_SaaS} set forth in this {_Agreement} without the further consent of any third party. {_Provider}’s representations and warranties in the preceding sentence do not apply to use of the {_SaaS} in combination with hardware or software not provided by {_Provider}. In case of breach of the warranty above in this Section {8.1.Xnum}, {_Provider}, at its own expense, shall promptly:
8.1.1.sec=(a) secure for {_Customer} the right to continue using the {_SaaS};
8.1.2.sec=(b) replace or modify the {_SaaS} to make it noninfringing; or if such remedies are not commercially practical in {_Provider}’s reasonable opinion,
8.1.3.sec=(c) refund the fees paid for the {_SaaS} for every month remaining in the then-current {_Term} following the date after which {_Customer} access to the {_SaaS} ceases as a result of such breach of warranty.
8.1.00.sec=If {_Provider} exercises its rights pursuant to Subsection {8.1.3.Xnum} above, {_Customer} shall promptly cease all use of the {_SaaS} and all reproduction and use of the {_Documentation} and erase all copies in its possession or control. This Section {8.1.Xnum}, in conjunction with {_Customer}’s right to terminate this {_Agreement} where applicable, states {_Customer}’s sole remedy and {_Provider}’s entire liability for breach of the warranty above in this Section {8.1.Xnum}.
8.1.=[G/Z/para/s3]
8.2.Ti=From {_Customer}
8.2.1.Ti=Re {_Customer} Itself
8.2.1.sec={_Customer} represents and warrants that: (i) it has the full right and authority to enter into, execute, and perform its obligations under this {_Agreement} and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this {_Agreement}; (ii) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the {_SaaS}; and (iii) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
8.2.2.Ti=Re {_Customer’s_Clients}
8.2.2.sec={_Customer} represents and warrants that, to the best of its knowledge: (i) each {_Customer’s_Client} will have the full right and authority to enter into, execute, and perform its obligations as required under this {_Agreement} and the {_Client_ToS}, with no pending or threatened claim or litigation that would have a material adverse impact on its ability so to perform; (ii) {_Customer} will accurately identify each {_Customer’s_Client} and will not provide any inaccurate information about a {_Customer’s_Client} or other {_User} to or through the {_SaaS}; and (iii) each {_Customer’s_Client} will be a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
8.2.=[G/Z/ol-a/2]
8.3.Ti=Warranty Disclaimers
8.3.sec=Except to the extent set forth in the {_SLA} and in Section {8.1.Xnum} above, {_Customer} accepts the {_SaaS} “as is,” with no representation or warranty of any kind, express or implied, including without limitation implied warranties of merchantability, fitness for a particular purpose, or noninfringement of intellectual property rights or any implied warranty arising from statute, course of dealing, course of performance, or usage of trade. Without limiting the generality of the foregoing: (a) {_Provider} has no obligation to indemnify or defend {_Customer} or users against claims related to infringement of intellectual property; (b) {_Provider} does not represent or warrant that the {_SaaS} will perform without interruption or error; and (c) {_Provider} does not represent or warrant that the {_SaaS} is secure from hacking or other unauthorized intrusion or that {_Customer_Data} will remain private or secure.
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9.Ti=INDEMNIFICATION
9.sec={_Customer} shall defend, indemnify, and hold harmless {_Provider} and the {_Provider_Associate}s (as defined below) against any “{DefT.Indemnified_Claim},” meaning any third party claim, suit, or proceeding arising out of or related to {_Customer}'s alleged or actual use of, misuse of, or failure to use the {_SaaS}, including without limitation: (a) claims by {_Customer’s_Clients} or other {_Users} or by {_Customer}'s or {_Customer’s_Clients}’ employees; (b) claims related {_Data_Incidents} (as defined below); (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the {_SaaS} through {_Customer}’s account, including without limitation by {_Customer_Data}; and (d) claims that use of the {_SaaS} through {_Customer}’s account, including by {_Customer’s_Clients} or other {_Users}, harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. {_Indemnified_Claims} include, without limitation, claims arising out of or related to {_Provider}’s negligence. {_Customer}’s obligations set forth in this Article {9.Xnum} include, without limitation: (i) settlement at {_Customer}’s expense and payment of judgments finally awarded by a court of competent jurisdiction, as well as payment of court costs and other reasonable expenses; and (ii) reimbursement of reasonable attorneys’ fees incurred before {_Customers}’ assumption of the defense (but not attorneys’ fees incurred thereafter). If {_Customer} fails to assume the defense on time to avoid prejudicing the defense, {_Provider} may defend the {_Indemnified_Claim}, without loss of rights pursuant to this Article {9.Xnum}. {_Provider} will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it or a {_Provider_Associate} admit wrongdoing or liability or subjects either of them to any ongoing affirmative obligation. (“{DefT.Provider_Associates}” are {_Provider}’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns. A “{DefT.Data_Incident}” is any (1) unauthorized disclosure of, access to, or use of {_Customer_Data}, including without limitation {_Excluded_Data}, or (2) violation of {_Privacy/Security_Law} through {_Customer}’s account. {_Data_Incidents} include, without limitation, such events caused by {_Customer}, by {_Provider}, by {_Customer}’s {_Customers} or other users, by hackers, and by any other third party.)
10.Ti=LIMITATION OF LIABILITY
10.1.Ti=Dollar Cap
10.1.sec={_Provider}’s cumulative liabilty for all claims arising out of or related to this {_Agreement} will not exceed {Liability.Provider.Limit.Cap.$}.
10.2.Ti=Excluded Damages
10.2.sec=Except with regard to breaches of Article {7.Xnum} ({7.Ti}), In no event will {_Provider} be liable for lost profits or loss of business or for any consequential, indirect, special, incidental, or punitive damages arising out of or related to this {_Agreement}.
10.3.Ti=Clarifications & Disclaimers
10.3.sec=The liabilities limited by this Article {10.Xnum} apply to the benefit of {_Provider}’s officers, directors, employees, agents, and third party contractors, as well as: (a) to liability for negligence; (b) regardless of the form of action, whether in contract, tort, strict product liability, or otherwise; (c) even if {_Provider} is advised in advance of the possibility of the damages in question and even if such damages were foreseeable; and (d) even if {_Customer}’s remedies fail of their essential purpose. {_Customer} acknowledges and agrees that {_Provider} has based its pricing on and entered into this {_Agreement} in reliance upon the limitations of liability and disclaimers of warranties and damages in this Article 10 and that such terms form an essential basis of the bargain between the parties. If applicable law limits the application of the provisions of this Article {10.Xnum}, {_Provider}’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, {_Provider}’s liability limits and other rights set forth in this Article {10.Xnum} apply likewise to {_Provider}’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
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11.Ti=TERM & TERMINATION
11.1.Ti={_Term}
11.1.sec=The term of this {_Agreement} (the “{DefT.Term}”) shall commence on the {_Effective_Date} and continue for the period set forth in the {_Order} or, if none, for {Contract.Life.Period}. Thereafter, the {_Term} will renew for successive {Contract.Life.Renewal.Period} periods, unless either party refuses such renewal by written notice 30 or more days before the renewal date.
11.2.Ti=Termination for Cause
11.2.sec=Either party may terminate this {_Agreement} for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure. Without limiting {_Provider}’s other rights and remedies, {_Provider} may suspend or terminate a {_Customer’s_Client}’s or other {_User}’s access to the {_SaaS} at any time, without advanced notice, if {_Provider} reasonably concludes such {_Customer’s_Client} or other {_User} has conducted itself in a way that is not consistent with the requirements of the {_AUP} or the other requirements of this {_Agreement} or in a way that subjects {_Provider} to potential liability.
NoteLawyer=The reference to 8.2 should be to 8.3 - it is the Limitations on warranties that should survive. HAVE CHANGED THIS.
11.3.Ti=Effects of Termination
11.3.sec=Upon termination of this {_Agreement}, {_Customer} shall cease all use of the {_SaaS} and delete, destroy, or return all copies of the {_Documentation} in its possession or control. The following provisions will survive termination or expiration of this {_Agreement}: (a) any obligation of {_Customer} to pay fees incurred before termination; (b) Articles and Sections {6.Xnum} ({6.Ti}), {7.Xnum} ({7.Ti}), {8.3.Xnum} ({8.3.Ti}), {9.Xnum} ({9.Ti}), and {10.Xnum} ({10.Ti}); and (c) any other provision of this {_Agreement} that must survive to fulfill its essential purpose.
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12.Ti=MISCELLANEOUS
12.1.Ti=Independent Contractors
12.1.sec=The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no {_Provider} employee or contractor will be an employee of {_Customer}.
12.2.Ti=Notices
Note=". . " ??
12.2.sec={_Provider} may send notices pursuant to this {_Agreement} to {_Customer}’s email contact points provided by {_Customer}, and such notices will be deemed received 24 hours after they are sent. {_Customer} may send notices pursuant to this {_Agreement} to {Provider.Notice.Adr.cl}, and such notices will be deemed received 72 hours after they are sent. . In addition, {_Customer} is on notice and agrees that: (a) for claims of copyright infringement, the complaining party may contact {Copyright.Notice.Adr.cl}; and (b) {_Provider} will terminate the accounts of subscribers who are repeat copyright infringers.
12.3.Ti=Force Majeure
12.3.sec=No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this {_Agreement} to the extent caused by epidemics, acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, government orders responding to any of the foregoing, or other causes beyond the performing party’s reasonable control.
12.4.Ti=Assignment & Successors
12.4.sec={_Customer} may not assign this {_Agreement} or any of its rights or obligations hereunder without {_Provider}’s express written consent. Except to the extent forbidden in this Section {12.4.Xnum}, this {_Agreement} will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
12.5.Ti=Severability
12.5.sec=To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this {_Agreement} invalid or otherwise unenforceable in any respect. In the event that a provision of this {_Agreement} is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this {_Agreement} will continue in full force and effect.
12.6.Ti=No Waiver
12.6.sec=Neither party will be deemed to have waived any of its rights under this {_Agreement} by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this {_Agreement} will constitute a waiver of any other breach of this {_Agreement}.
12.7.Ti=Choice of Law & Jurisdiction
12.7.sec=This {_Agreement} will be governed solely by the internal laws of {Law.State.the}, including applicable U.S. federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of {Dispute.Forum.cl}. This Section {12.7.Xnum} governs all claims arising out of or related to this {_Agreement}, including without limitation tort claims.
12.8.Ti=Conflicts
12.8.sec=In the event of any conflict between this {_Agreement} and any {_Provider} policy posted online, including without limitation the {_AUP}, the terms of this {_Agreement} will govern.
12.9.Ti=Construction
12.9.sec=The parties agree that the terms of this {_Agreement} result from negotiations between them. This {_Agreement} will not be construed in favor of or against either party by reason of authorship.
12.10.Ti=Technology Export
12.10.sec={_Customer} shall not: (a) permit any third party to access or use the {_SaaS} in violation of any U.S. law or regulation; or (b) export any software provided by {_Provider} or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, {_Customer} shall not permit any third party to access or use the {_SaaS} in, or export such software to, a country subject to a United States embargo (as of the {_Effective_Date}, Cuba, Iran, North Korea, Sudan, and Syria).
12.11.Ti=Entire {_Agreement}
12.11.sec=This {_Agreement} sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
12.12.Ti=Amendment
12.12.sec={_Provider} may amend this {_Agreement} from time to time by posting an amended version at its Website and sending {_Customer} written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “{DefT.Proposed_Amendment_Date}”) unless {_Customer} first gives {_Provider} written notice of rejection of the amendment. In the event of such rejection, this {_Agreement} will continue under its original provisions, and the amendment will become effective at the start of {_Customer}’s next {_Term} following the {_Proposed_Amendment_Date} (unless {_Customer} first terminates this {_Agreement} pursuant to Article {11.Xnum}, {11.Ti}). {_Customer}’s continued use of the {_SaaS} following the effective date of an amendment will confirm {_Customer}’s consent thereto. This {_Agreement} may not be amended in any other way except through a written agreement by authorized representatives of each party. Notwithstanding the foregoing provisions of this Section {12.12.Xnum}, {_Provider} may revise the {_AUP} at any time by posting a new version of either at the Website, and such new version will become effective on the date it is posted; provided if such amendment materially reduces {_Customer}’s rights or protections, notice and consent will be subject to the requirements above in this Section {12.12.Xnum}.
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=[G/Z/ol/12]
NoteCoder=Supporting widgets:
NoteCoder=Cross-reference widgets:
1.Xnum=1
1.8.Xnum={1.Xnum}.8
2.Xnum=2
2.4.Xnum={2.Xnum}.4
3.Xnum=3
3.2.Xnum={3.Xnum}.2
4.Xnum=4
5.Xnum=5
5.1.Xnum={5.Xnum}.1
6.Xnum=6
6.2.Xnum={6.Xnum}.2
7.Xnum=7
7.1.Xnum={7.Xnum}.1
7.3.Xnum={7.Xnum}.3
8.Xnum=8
8.1.Xnum={8.Xnum}.1
8.1.3.Xnum={8.1.Xnum}.(c)
8.2.Xnum={8.Xnum}.2
8.3.Xnum={8.Xnum}.3
9.Xnum=9
10.Xnum=10
11.Xnum=11
11.1.Xnum={11.Xnum}.1
12.Xnum=12
12.12.Xnum={12.Xnum}.12
12.4.Xnum={12.Xnum}.4
12.7.Xnum={12.Xnum}.7
NoteCoder=Defined Terms hyperlinks.
_Agreement=Agreement
_AUP=AUP
_Client_ToS=Client ToS
_Confidential_Information=Confidential Information
_Customer_Data=Customer Data
_Customer’s_Client=Customer’s Client
_Customer’s_Clients=Customer’s Clients
_Customer=Customer
_Customers=Customers
_Data_Incident=Data Incident
_Data_Incidents=Data Incidents
_De-Identified_Data=De-Identified Data
_Documentation=Documentation
_Effective_Date=Effective Date
_Excluded_Data_Laws=Excluded Data Laws
_Excluded_Data=Excluded Data
_Feedback=Feedback
_Indemnified_Claim=Indemnified Claim
_Indemnified_Claims=Indemnified Claims
_Order=Order
_Privacy/Security_Law=Privacy/Security Law
_Privacy/Security_Laws=Privacy/Security Laws
_Proposed_Amendment_Date=Proposed Amendment Date
_Provider_Associate=Provider Associate
_Provider_Associates=Provider Associates
_Provider=Provider
_Purpose=Purpose
_SaaS=SaaS
_Sales_Tax=Sales Tax
_Sales_Taxes=Sales Taxes
_SLA=SLA
_Term=Term
_User=User
_Users=Users
NoteCoder=The place a Defined Term is defined is the "Target".
Def.Agreement={_Agreement}
Def.AUP={_AUP}
Def.Client_ToS={_Client_ToS}
Def.Confidential_Information={_Confidential_Information}
Def.Customer_Data={_Customer_Data}
Def.Customer={_Customer}
Def.Customer’s_Clients={_Customer’s_Clients}
Def.Data_Incident={_Data_Incident}
Def.De-Identified_Data={_De-Identified_Data}
Def.Documentation={_Documentation}
Def.Effective_Date={_Effective_Date}
Def.Excluded_Data_Laws={_Excluded_Data_Laws}
Def.Excluded_Data={_Excluded_Data}
Def.Feedback={_Feedback}
Def.Indemnified_Claim={_Indemnified_Claim}
Def.Order={_Order}
Def.Privacy/Security_Law={_Privacy/Security_Law}
Def.Proposed_Amendment_Date={_Proposed_Amendment_Date}
Def.Provider_Associates={_Provider_Associates}
Def.Provider={_Provider}
Def.Purpose={_Purpose}
Def.SaaS={_SaaS}
Def.Sales_Tax={_Sales_Tax}
Def.SLA={_SLA}
Def.Term={_Term}
Def.User={_User}