Standard Terms and Conditions
1. Proprietary Rights.
1.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder or in the applicable Order Form, DemandEngine, Inc. ('DemandEngine") reserves all rights, title and interest in and to the DemandEngine Services (including the DemandMarketer Application), including all related intellectual property rights. No rights are granted to Client (as indentified in the applicable Order Form) hereunder other than as expressly set forth herein.
1.2. Restrictions. Client shall not (i) permit any third party to access the DemandEngine Services except as permitted herein or in an Order Form, (ii) create derivate works based on the DemandEngine Services, (iii) copy, frame or mirror any part or content of the DemandEngine Services, other than copying or framing on Client’s own intranets or otherwise for Client’s own internal business purposes, (iv) reverse engineer the DemandEngine Services, or (v) access the DemandEngine Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the DemandEngine Services. As used in this Section 1.2, the DemandEngine Services shall include use of the DemandMarketer Application.
1.3. Ownership of Client Data. As between DemandEngine and Client, Client exclusively own all rights, title and interest in and to all Client Data; provided, however, (i) Client hereby grants DemandEngine to right to reference the relationship between DemandEngine and Client on a listing of DemandEngine’s customers; (ii) DemandEngine may use Client’s logo and/or trademark on DemandEngine's website or in certain marketing material (DemandEngine agrees to obtain written permission from Client prior to using Client logo and/or trademark).
1.4. Suggestions. DemandEngine shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the DemandEngine Services any suggestions, enhancement requests, recommendations or other feedback provided by Client, including Users, relating to the operation of the DemandEngine Services.
2.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party (" Disclosing Party") to the other party (" Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Client’s Confidential Information shall include Client Data; DemandEngine’s Confidential Information shall include the DemandEngine Services; and Confidential Information of each party shall include the terms and conditions herein and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Client Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
2.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of an Order Form, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with an Order Form and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
2.3. Protection of Client Data. Without limiting the above, DemandEngine shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data. DemandEngine shall not (a) modify Client Data, (b) disclose Client Data except as compelled by law in accordance with Section 2.4 (Compelled Disclosure) or as expressly permitted in writing by Client, or (c) access Client Data except to provide the DemandEngine Services or prevent or address service or technical problems, or at Client’s request in connection with customer support matters. DemandEngine will not use Client Data for any purposes other than those intended by the DemandEngine Services. Client Data will not be shared with any other parties, unless Client is also subscribing to a DemandEngine Service where one of the features of such service is the sharing of customer information between services. DemandEngine will not use Client Data (e.g., customer information) for the purpose of sending unsolicited commercial e-mail to such customers.
2.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
3.1. Termination for Cause. A party may terminate the DemandEngine Service for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
3.2. Refund or Payment upon Termination. Upon any termination for cause by Client, DemandEngine shall refund Client any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by DemandEngine, Client shall pay any unpaid fees covering the remainder of the term of all DemandEngine Services after the effective date of termination. In no event shall any termination relieve Client of the obligation to pay any Fees payable to DemandEngine for the period prior to the effective date of termination.
3.3. Return of Client Data. Upon written request by Client made within 30 days after the effective date of termination of an Order Form, DemandEngine will make available to Client a file of Client Data. After such 30-day period, DemandEngine shall have no obligation to maintain or provide any Client Data and shall thereafter, unless legally prohibited, delete all Client Data in DemandEngine’s systems or otherwise in DemandEngine’s possession or under DemandEngine’s control.
3.4. Survival. Terms that by their nature are intended to survive termination or expiration of the applicable Order Form in order to give such terms the intended effect shall survive such termination or expiration.
4. Warranties and Disclaimers.
4.1. DemandEngine Warranties. DemandEngine warrants that (i) the DemandEngine Services shall perform materially in accordance with the associated documentation, (ii) the functionality of the DemandEngine Services will not be materially decreased during a term, and (iii) use of the DemandEngine Application as permitted under an Order Form shall not infringe the intellectual property rights of a third party.
4.2. Client Warranties. Client warrants that (i) Client and all users of the DemandEngine Services approved by Client are at least eighteen (18) years of age; (ii) Client will not use the DemandEngine Services for any purpose that is unlawful, or prohibited by these Terms and Conditions or the terms of an applicable Order Form; (iii) all Client Data is true and accurate; (iii) any products or services advertised, sold or otherwise distributed by Client on or in connection with any Client Data are legal for sale or distribution; that Client have all licenses necessary to sell or advertise the goods or services offered for sale or distribution and that all sales and advertisements will be in compliance with applicable law; (iv) Client’s delivery of emails in connection with any DemandEngine Services is in full compliance with the CAN-SPAM Act of 2003; (v) Client has secured required permission to use any person's name, voice, likeness or performance as embodied in any Client Data, and nothing in the Client will otherwise infringe on the privacy or publicity right of any individual; and (vi) use of Client Data by DemandEngine shall not infringe the intellectual property rights of a third party.
4.3. Mutual Warranty. Each party represents and warrants that it has the legal power to enter into the applicable Order Form.
4.4. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
5.1. Indemnification by DemandEngine. DemandEngine shall defend, indemnify and hold Client, its officers, directors, and employees harmless from and against all claims, suits, liabilities, losses, costs and expenses (including attorneys’ fees) arising from DemandEngine’s breach of the warranties set forth herein; provided, that for any claim, suit or other proceeding (each a “Claim”) Client (a) promptly gives DemandEngine written notice of the Claim; (b) give DemandEngine sole control of the defense and settlement of the Claim (provided that DemandEngine may not settle any Claim unless the settlement unconditionally releases Client of all liability); and (c) provide to DemandEngine all reasonable assistance, at DemandEngine’s expense.
5.2. Indemnification by Client. Client shall defend, indemnify and hold DemandEngine, its officers, directors, and employees harmless from and against all claims, suits, liabilities, losses, costs and expenses (including attorneys’ fees) arising from Client’s breach of the warranties set forth herein; provided, that for any claim, suit or other proceeding (each a “Claim”) DemandEngine (a) promptly gives Client written notice of the Claim; (b) gives Client sole control of the defense and settlement of the Claim (provided that Client may not settle any Claim unless the settlement unconditionally releases DemandEngine of all liability); and (c) provide to Client all reasonable assistance, at Client’s expense.
5.3. Exclusive Remedy. This Section 5 (Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
6. Limitations of Liability
6.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO AN ORDER FORM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CLIENT UNDER SUCH ORDER FORM OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $500,000 OR THE AMOUNT PAID BY CLIENT UNDER SUCH ORDER FORM IN THE 12 MONTHS PRECEDING THE INCIDENT FIRST GIVING RISE TO LIABILITY. THE FOREGOING SHALL NOT LIMIT CLIENT’S PAYMENT HEREUNDER OR UNDER THE TERMS OF AN APPLICABLE ORDER FORM.
6.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. IN ADDITION, DEMANDENGINE OR ITS SUPPLIERS SHALL NOT BE LIABLE FOR: (I) DAMAGES FOR LOSS OF USE, DATA, ACCOUNTS, REVENUES OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF DEMANDENGINE SERVICES, OR (II) WITH THE DELAY OR INABILITY TO USE DEMANDENGINE SERVICES; IF CLIENT ARE DISSATISFIED WITH ANY PORTION OF DEMANDENGINE SERVICES, OR WITH ANY OF THESE TERMS OF SERVICE, CLIENT’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING DEMANDENGINE SERVICES.
7.1. Capitalized terms herein shall have the meaning set forth herein. If such term is not defined herein, then it shall have the meaning set for in the applicable Order Form.
7.2. Client agrees that no joint venture, partnership, employment, or agency relationship exists between Client and DemandEngine as a result of any Order Form or use of DemandEngine Services.
7.3. DemandEngine's performance of any Order Form is subject to existing laws and legal process, and nothing contained in these Terms and Conditions are in derogation of DemandEngine's right to comply with governmental, court and law enforcement requests or requirements relating to Client’s use of DemandEngine Services or information provided to or gathered by DemandEngine with respect to such use.
7.4. If any term herein or in an applicable Order Form is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the applicable Statement of Work or Order Form shall continue in effect.
7.5. Each Order Form constitutes the exclusive terms and conditions with respect to the subject matter thereof and specifically supersedes any different or additional terms that may be contained in the form of purchase order or other document used by Client to place orders or otherwise effect transactions hereunder. Each Statement of Work or Order Form represents the final, complete and exclusive statement of the agreement between the parties with respect to subject matter thereof and specifically supersedes all prior written agreements and all prior and contemporaneous oral agreements with respect to the subject matter. DemandEngine reserves the right to disclose any information, content, or materials as necessary to satisfy any applicable law, regulation, legal process or government request or in accordance with DemandEngine's Privacy Statement.
7.6. Any rights not expressly granted herein are reserved by DemandEngine, including all legal and equitable remedies available to DemandEngine upon Client’s violation of any term hereunder or under an applicable Order Form.
7.7. Any claim relating to the provision of the DemandEngine Services by DemandEngine, its affiliates and their personnel will be made against DemandEngine alone.
7.8. In the event of a conflict between these Terms and Conditions and an Order Form, these Terms and Conditions shall take precedence unless they are amended by an Order Form that includes a specific reference to the term herein that is being amended.
7.9. The validity, interpretation and enforcement of these Terms and Conditions or an applicable Order Form will be governed by and construed in accordance with the laws of the United States and of the State of Georgia without giving effect to the conflicts of laws provisions thereof or the United Nations Convention on Contracts for the International Sale of Goods. Client hereby consents to jurisdiction of both the state and federal courts located in Savannah, GA and such courts shall have exclusive jurisdiction over any disputes under an applicable Order Form.
In the event that an Order Form provides for DemandEngine to provide professional services to Client, the following terms and conditions shall apply to such Order Form.
8. Client Obligations. Client will (a) carry out its obligations under each Statement of Work (“SOW”), (b) provide a safe and secure working environment for DemandEngine personnel while working on Client’s premises, and (c) obtain any third party consents necessary to grant DemandEngine access to its software, hardware and systems. In the event that (x) Client fails to timely fulfill its obligations under an SOW, and this adversely impacts DemandEngine’s delivery of Services, or (y) events outside of either party’s reasonable control cause a delay in or otherwise affect DemandEngine’s ability to perform its obligations, DemandEngine will be entitled to appropriate relief.
9. Ownership Rights in Deliverables. Client will own all deliverables identified as such in an SOW provided that rights in software or tools of DemandEngine will be owned by DemandEngine. Except for pre-existing confidential information subject to Section 2, any ideas, methods, concepts, know-how, inventions and improvements developed during the course of an SOW may be used by either party, without an obligation to account, in any way a party deems appropriate, including by or for itself or its clients or customers, notwithstanding anything to the contrary contained in these Terms and Conditions of the applicable Order Form. Nothing herein or in an applicable Order Form will be understood to preclude or limit DemandEngine from providing software, materials, or services for itself or other clients, irrespective of the possible similarity of such software, materials or services to those delivered to Client.
10. Indemnification. DemandEngine and Client ("Indemnfying Party") each agrees that if a third party brings a claim against the other ("Indemnified Party") for death or bodily injury or damage to real or tangible personal property arising out of the Indemnfying Party's gross negligence or willful misconduct in the performance under an SOW, the Indemnifying Party will defend the Indemnified Party against such claim at its expense and pay all costs, damages and attorney's fees that a court finally awards or that are included in a settlement approved by the Indemnifying Party. The indemnities in this Section 10 are contingent upon: (i) the Indemnified Party promptly notifying the Indemnifying Party in writing of any claim which may give rise to a claim for indemnification hereunder; (ii) the Indemnifying Party being allowed to control the defense and settlement of such claim; and (iii) the Indemnified Party co-operating with all reasonable requests of the Indemnifying Party (at the Indemnifying Party's expense) in defending or settling a claim. The Indemnified Party will have the right, at its option and expense, to participate in the defense of any suit or proceeding through a counsel of its own choosing.
11. Additional Representations and Warranties. DemandEngine represents and warrants that: (a) the professional services will be performed in a professional and workmanlike manner by qualified personnel; and (b) it has the authority to enter into each SOW. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 11, THE PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
Revision Date: February 7, 2012