UserVoice Service, Platform, and API. Pursuant to this Agreement, UserVoice agrees to provide Account Holder and its end users, access to the UserVoice service (the “Service”) through UserVoice’s online feedback platform (the “UserVoice Platform”) or via an application programming interface (“API”) which allows access to the UserVoice Platform.
Terms of Payment. Account Holder shall pay UserVoice the fees set forth in the Specifications. Account Holder shall be solely responsible for the payment of, and shall pay when due and indemnify UserVoice against, all applicable federal and state taxes, and payments to UserVoice under this Agreement (except for taxes assessed on UserVoice’s net income).
Term; Termination. The term of this Agreement will be as set forth in the Specifications (the “Term”). Either party may terminate this Agreement in the event that the other party violates this Agreement and fails to cure such violation within thirty (30) days of receiving written notice thereof. In the event of any termination, (a) Account Holder will remain liable for any amount due under this Agreement (adjusted on a pro rata basis, if applicable) and (b) UserVoice will destroy all Account Holder Data in its possession after giving Account Holder a reasonable opportunity to download such data.
Intellectual Property Ownership and Licenses.
UserVoice Ownership Rights. UserVoice shall own and retain all right, title, and interest in and to the Service, UserVoice Platform, and APIs (except for any licensed content and software components included therein). UserVoice hereby grants to Account Holder a worldwide, royalty-free, non-exclusive, revocable, limited license to use the Service, the UserVoice Platform, and the API during the Term as expressly provided hereunder. Account Holder agrees not to copy, alter, modify, or create derivative works of the UserVoice Platform or API or otherwise use the Service in any way that violates the use restrictions contained in this Agreement. UserVoice does not grant to Account Holder any license, express or implied, to the intellectual property of UserVoice or its licensors.
Account Holder Data. As between UserVoice and Account Holder, Account Holder shall retain all right, title and interest in and to all documents, messages, graphics, images, files, data and other information transmitted by Account Holder or its end users to UserVoice in connection with the Service, including any ideas or inventions contained therein (collectively, the “Account Holder Data”), provided, however, that Account Holder hereby grants to UserVoice a worldwide, royalty-free, non-exclusive license to use during the Term the Account Holder Data solely for the purposes of fulfilling its obligations hereunder. Notwithstanding the foregoing, “Account Holder Data” does not include non-identifiable aggregate data compiled by UserVoice for purposes of improving, maintaining, and/or optimizing the Service. Account Holder hereby irrevocably releases and forever discharges UserVoice and its affiliates and agents from any and all actions, causes of actions, claims, damages, liabilities and demands with respect to the Account Holder Data.
Account Holder Logos and Designs. Account Holder shall retain all right, title and interest in and to all of Account Holder’s logos, promotional graphics and related marketing designs (collectively, the “Account Holder Art”); provided, however, that Account Holder hereby grants to UserVoice a worldwide, perpetual, royalty-free, fully sublicenseable, non-exclusive license to use the Account Holder Art, as well as Account Holder’s corporate and/or trade name for purposes of marketing UserVoice’s products and services to third parties, subject to Account Holder’s right in each instance to approve the manner and form of such use (which approval shall be in writing and shall not be unreasonably withheld or delayed).
Representations and Warranties. Each party hereby represents and warrants to the other party that: (a) it has the full right, power and authority to enter into this Agreement; (b) this Agreement is a valid and binding obligation of such party; (c) it has obtained and shall maintain throughout the all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations; and (d) it shall comply with all applicable laws, rules and regulations, including applicable privacy and data protection laws.
Account Holder further represents and warrants that its chosen domain name (if any) as hosted on the Service (for example, "acme.uservoice.com") does not infringe the copyright, trademark, or any other intellectual property rights of any third party, and that such domain name is otherwise in compliance with this Agreement. UserVoice reserves the right, in its sole discretion, to relocate Account Holder's hosted area within the UserVoice Platform to an alternate domain name on the Service if UserVoice has reason to believe Account Holder’s chosen domain name is in violation of this section.
Indemnification. Each party agrees to indemnify and hold the other party and its affiliates and agents harmless from and against any losses, costs, liabilities and expenses, including attorneys’ fees, arising out of the breach of the representations, warranties and covenants made by such party herein, or out of such party’s negligence or willful misconduct. Account Holder further agrees to indemnify and hold UserVoice and its affiliates and agents harmless from and against any losses, costs, liabilities and expenses, including attorneys’ fees, arising out of the Account Holder Data. The indemnifying party shall be entitled to assume the defense and control of any matter for which it is required to indemnify the other party hereunder, and the other party agrees to cooperate with the indemnifying party’s defense of such claims; provided, however, that the indemnified party may also participate in such defense with counsel of its choosing, at its sole expense.
Disclaimers; No Warranties. UNLESS EXPRESSLY SET FORTH IN THIS AGREEMENT, USERVOICE MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, INCLUDING WITHOUT LIMITATION THE SERVICES, THE USERVOICE PLATFORM, OR THE API, AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. USERVOICE DOES NOT WARRANT THE RESULTS OF USE OF THE SERVICE, AND ACCOUNT HOLDER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. ACCOUNT HOLDER SHOULD NOTE THAT IN USING THE SERVICE, SENSITIVE INFORMATION WILL TRAVEL THROUGH THIRD PARTY INFRASTRUCTURES WHICH ARE NOT UNDER USERVOICE'S CONTROL (SUCH AS A THIRD PARTY SERVERS). USERVOICE MAKES NO WARRANTY WITH RESPECT TO THE SECURITY OF SUCH THIRD PARTY INFRASTRUCTURES.
Limitation of Liability and Damages. EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH HEREIN, UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SYSTEM FAILURE OR NETWORK OUTAGE, WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF DATA, LOSS OF BUSINESS, PROFITS OR OTHER LOSS, THAT RESULT FROM THIS AGREEMENT, EVEN IF SUCH PARTY OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH HEREIN, IN NO EVENT WILL EITHER PARTY’S OR ITS AFFILIATES’ TOTAL LIABILITY TO THE OTHER PARTY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AGGREGATE FEES DUE BY ACCOUNT HOLDER TO USERVOICE HEREUNDER DURING THE PRIOR TWELVE (12) MONTHS.
Confidentiality. “Confidential Information” shall mean (a) the content of this Agreement; (b) all Account Holder Data; and (c) any information generally understood to be confidential in nature or designated as such by either party, but shall not include information that: (a) is independently developed by the receiving party without access to the other party's Confidential Information; (b) becomes publicly known through no breach of this Agreement by the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure; (d) has been approved for release in writing by the disclosing party; or (e) is required to be disclosed by a legal or governmental authority. During the term of this Agreement, and for twelve (12) months following termination, neither party will, subject to the license expressly granted herein, use, sell or disclose any Confidential Information of the other party except as specifically contemplated herein. Notwithstanding the foregoing, either party may disclose the other party’s Confidential Information solely as necessary to comply with applicable laws, rules or regulations.
Miscellaneous. This Agreement shall not be amended, altered or changed and no provision hereof shall be waived except by written agreement signed by both UserVoice and Account Holder or, in the case of a waiver, by the party waiving compliance. Neither party shall assign any of its rights, obligations or licenses hereunder without the prior written consent of the other party; provided, however, that either party may assign this Agreement and its rights and obligations hereunder to a successor of such party by way of merger, consolidation or acquisition of all or substantially all of the assets or business of such assigning party so long as such successor shall agree to be bound by all of the terms and provisions hereof. UserVoice and Account Holder are independent contractors, and neither UserVoice nor Account Holder is an agent, representative, employer, employee, or partner of the other. UserVoice and Account Holder shall each have sole responsibility for all acts and omissions of their respective personnel. This Agreement sets forth the entire agreement between UserVoice and Account Holder. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. Any notices under this Agreement shall be sent to the addresses set forth in the Specifications (or in a separate writing) by facsimile, electronic mail or nationally recognized express delivery service and deemed given upon receipt. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision contained in this Agreement is determined to be unenforceable in any respect, then such provision will be severed and the remaining provisions of this Agreement will remain in full force and effect.