Customer Terms of Service
*Last Modified September 10, 2020
These Customer Terms of Service (these “Customer Terms”) describe your rights and responsibilities when using our mobile and/or web-based software platform and related services (the “Services”). If you are a Customer (defined below), these Customer Terms govern your access and use of our Services.
These Customer Terms (or, if applicable, your written agreement with us) and any Order Form(s) (defined below) together form a binding “Agreement” between Customer and Hit Labs, Inc. (“Hit Labs”).
1. Definitions.
“Customer” means the organization that you represent in agreeing to this Agreement. By agreeing to this Agreement, you represent and warrant that you have all right, power, and authority to bind such entity or organization to this Agreement.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Authorized User” means an individual who is authorized by Customer to use the Subscription Services under Customer’s account, and who has been supplied a user identification and password. Authorized Users may include, for example, Customer’s and its Affiliates’ employees, consultants, contractors and agents, and third parties with which Customer or its Affiliates transacts business.
“Customer Data” means all data and information submitted by Authorized Users to the Subscription Services. “Customer Data” includes message text, files, comments, videos, music, images, links, and other content and information, but does not include Non-Hit Labs Products or the Subscription Services.
“Documentation” means Hit Labs’ online user guides, and polices, as updated from time to time, accessible via https://support.pronto.io.
“Non-Hit Labs Products” means online applications and offline software products that are provided by Customer or a third party, and that interoperate with the Subscription Services.
“Subscription Services” means access to Hit Labs’ communication and productivity software on a software-as-a-service basis including access to related systems and technologies as ordered by Customer and made available by Hit Labs via a Customer-specific domain provided by Hit Labs and Hit Labs’ desktop and mobile applications, including associated offline components, provided that “Subscription Services” shall mean that plan, and the corresponding features thereof, as ordered and paid for by Customer. “Subscription Services” exclude Customer Data and Non-Hit Labs Products.
“Services” means the Subscription Services, technical support services, and Professional Services (as defined below), provided by Hit Labs hereunder.
2. Orders.
Customer may order Subscription Services and any related professional services (“Professional Services”) on behalf of itself and its Affiliates by entering into an ordering document (including any online order) (an “Order Form”) referencing this Agreement and specifying the Subscription Services to be provided hereunder. Each additional Order Form, upon execution by both of the parties hereto, will be subject to and incorporated into this Agreement. Customer will be responsible for its Affiliates’ compliance with this Agreement and the acts and omissions of Customer’s Affiliates will be deemed to be the acts and omissions of Customer.
3. Subscription Services.
a. Access. Hit Labs will (i) make the Subscription Services available to Customer pursuant to this Agreement, (ii) not use or process Customer Data for any purpose whatsoever without Customer’s prior written instructions, provided that processing necessary for the performance of this Agreement or processing initiated by an Authorized User in their use of the Subscription Services will each be deemed an instruction, and (iii) provide the Subscription Services in accordance with any applicable uptime commitments set forth in the Documentation.
b. Administrator. Customer will identify a primary administrator for its account. Customer may use its primary administrator credentials to create other administrator accounts and standard user accounts for its Authorized Users. Unless otherwise specified in an applicable Order Form, (i) Subscription Services are purchased as Authorized User subscriptions, (ii) additional Authorized User subscriptions may be added via the Subscription Services interface by Customer or by Order Form during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional Authorized User subscriptions are added, and (iii) all Authorized User subscriptions will terminate on the same date.
c. Authorized Users. Authorized User subscriptions cannot be shared or used by more than one Authorized User. Customer is responsible for maintaining the confidentiality of its logins, passwords, and accounts and for all activities that occur under its accounts. Hit Labs will not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else, if such information is not kept confidential by Customer or its Authorized Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Subscription Services. Customer may refer to the Documentation for additional information on Hit Labs’ policies, storage limitations, and such other notices Hit Labs publishes in connection with the Subscription Service from time-to-time.
d. Use of Non-Hit Labs Products. Third parties may from time-to-time make available to Customer Non-Hit Labs Products. Any acquisition and use by Customer or by its teams of such Non-Hit Labs Products is solely between Customer and the applicable provider. Hit Labs does not warrant or support Non-Hit Labs Products.
e. Non-Hit Labs Products and Customer Data. If Customer installs or enables Non-Hit Labs Products for use with Subscription Services, Customer acknowledges that providers of those Non-Hit Labs Products may have access to Customer Data in connection with the interoperation and support of such Non-Hit Labs Products with the Subscription Services. To the extent Customer authorizes the access or transmission of Customer Data through a Non-Hit Labs Product, Hit Labs will not be responsible for any use, disclosure, modification or deletion of such Customer Data.
f. Beta Products. From time to time, Hit Labs may make available to Customer certain new features and functionality identified as “beta” or “pre-release,” or another similar designation (each, a “Beta Product”). Beta Products are made available on an “as is,” and “as available” basis without any warranties or other obligation and Hit Labs will have no responsibility for Customer’s use thereof.
4. Customer Responsibilities and Restrictions.
a. Customer Responsibilities. Customer will (i) obtain and maintain all consents, permissions, and authorizations required for Customer, its Authorized Users, and Hit Labs to have the rights to access, store, process, transmit, handle, disclose, or process Customer Data in connection with the Subscription Services, (ii) be responsible for Authorized Users’ compliance with this Agreement, (ii) be responsible for the accuracy, appropriateness and legality of Customer Data, (iv) use commercially reasonable efforts to prevent unauthorized access to or use of Subscription Services, and notify Hit Labs promptly of any such unauthorized access or use, and (v) use the Subscription Services only in accordance with applicable laws and government regulations.
b. Usage Restrictions. Customer may not (i) make the Subscription Services available to, or use the Subscription Services for the benefit of, anyone other than Authorized Users, (ii) upload, post, transmit, or otherwise make available any content that (1) Customer knows or reasonably should know is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable, or (2) that Customer does not have a right to make available under any applicable law or under contractual or fiduciary relationships, or that infringes any patent, trademark, trade secret, copyright or other proprietary rights, (iii) sublicense, resell, time share or similarly exploit the Subscription Services, (iv) upload, post, transmit, or otherwise make available any content or information designed to interrupt, interfere with, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, (v) reverse engineer, modify, adapt, or hack the Subscription Services, or otherwise attempt to gain unauthorized access to the Subscription Services or its related systems or networks, or (vi) use the Subscription Services in violation of Hit Labs’ Acceptable Use Policy, available at https://pronto.io/acceptable-use-policy/.
c. Restriction of Access. If Hit Labs, in its sole discretion, determines that Customer has breached any of its obligations or restrictions in this Section 4, in addition to and without prejudice to any of Hit Labs’ other rights and remedies hereunder, with notice to Customer, Hit Labs may suspend or restrict access to Customer’s account until such breach has been cured by Customer.
5. Support and Maintenance.
During the Term and on the condition that Customer has paid all undisputed fees due and owing to Hit Labs and is otherwise in material compliance with the terms of this Agreement, Hit Labs shall respond to technical support requests via email Monday through Friday, from 8:00 AM to 8:00 PM MT, excluding major international holidays, and make reasonable, good faith efforts to correct errors. Hit Labs will make reasonable, good faith efforts to respond to all technical support requests within 8 business hours. When requesting an error correction, Customer shall provide Hit Labs with information as Hit Labs reasonably requests to enable Hit Labs to verify and reproduce the reported error. Certain Hit Labs employees may need to access Customer Data to provide the Subscription Services. Additional information about support for the Subscription Services are available at https://support.pronto.io.
6. Payment.
a. Fees and Payment. Customer will pay all fees specified in all Order Forms hereunder. Payment obligations are non-cancelable and, except as expressly set forth herein, fees paid are non-refundable. In the event Customer downgrades any subscriptions from a paid plan to a free plan, Customer will remain responsible for any unpaid fees under the paid plan, and Subscription Services under the paid plan will be deemed fully performed and delivered upon expiration of the initial paid plan subscription term.
b. Invoicing, Payment and Taxes. Fees will be invoiced in advance and otherwise in accordance with the relevant Order Form. Hit Labs will bill Customer through invoices sent via email to the address designated by Customer, unless a payment method is otherwise specified in the Order Form. Unless otherwise set forth in the relevant Order Form, full payment for invoices issued must be received within 30 days from the invoice date. Except for those taxes based on Hit Labs’ net income, Customer will be responsible for all applicable taxes in connection with this Agreement including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties. Should any payment for the Subscription Services provided by Hit Labs be subject to withholding tax by any government, Customer will reimburse Hit Labs for such withholding tax. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
c. Downgrading of Subscription Service. If any charge owing by Customer (excluding amounts disputed in reasonable and good faith) is 30 days or more overdue, Hit Labs may, without limiting its other rights and remedies, suspend the provision of Subscription Services or downgrade any fee-based Subscription Services to free plans until such amounts are paid in full, provided Hit Labs has given Customer 10 or more days’ prior notice that its account is overdue. Notwithstanding Section 10, Customer acknowledges and agrees that a downgrade will result in a decrease in certain features and functionality.
d. Pricing Changes. If Customer elects to purchase a subscription to use Subscription Services, or certain other paid aspects of the Subscription Services, Customer agrees to the pricing communicated by Hit Labs. Hit Labs may add new services for additional fees and charges or add or amend fees and charges for existing services, at any time in our sole discretion. Any change to such pricing shall become effective in the billing cycle following notice of such change as provided under the Agreement.
e. Accuracy of Information. Customer shall ensure that all information that Customer provides in connection with a purchase or transaction or other monetary transaction with the Subscription Services must be accurate, complete, and current. Customer agrees to pay all charges incurred by Authorized Users at the prices in effect when such charges are incurred.
f. Future Functionality. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Hit Labs regarding future functionality or features.
7. Proprietary Rights.
a. Reservation of Rights in Subscription Services. Subject to the limited rights expressly granted hereunder, Hit Labs reserves all rights, title and interest in and to the Subscription Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
b. License to Software Components. To the extent Hit Labs makes available any software components to Customer, including via app stores, in connection with the Subscription Services, Hit Labs grants to Customer a limited, non-transferrable, non-sublicensable, non-exclusive license to use the object code version of such components solely in connection with the Subscription Services.
c. Limited License to Customer Data and Non-Hit Labs Products. Customer grants Hit Labs and its Affiliates (including its third party hosting providers acting on its behalf) a worldwide, non-exclusive, limited term license to access, use, copy, distribute, perform and display Customer Data, and any Non-Hit Labs Products created by or for Customer, only (i) as reasonably necessary to provide the Subscription Services to Authorized Users in accordance with this Agreement, (i) to prevent or address service or technical problems or at Customer’s request in connection with customer support matters, or (iii) as compelled by law in accordance with Section 13 below or as expressly permitted in writing by Customer. Subject to the limited licenses granted herein, Hit Labs acquires no right, title or interest under this Agreement in or to Customer Data or any Non-Hit Labs Product. Nothing herein is intended to limit Hit Labs’ right to collect and use data relating to the use and performance of the Subscription Services and related technologies as further described in Hit Labs’ publicly available Privacy Policy, as updated from time-to-time and currently posted at https://pronto.io/privacy/. In the event of any conflict between this Agreement and the Privacy Policy, this Agreement will control.
d. Feedback. If Customer (including any Authorized User) sends Hit Labs any feedback or suggestions regarding the Subscription Services (whether unsolicited or in response to an invitation by Hit Labs to provide such feedback or suggestions), Customer grants Hit Labs an unlimited, irrevocable, perpetual, transferable, sublicensable, royalty-free license to use and exploit any such feedback or suggestions for any purpose without any obligation or compensation to Customer or any Authorized User.
8. Customer Data.
a. Protection of Customer Data. Hit Labs will maintain reasonable administrative, physical, and technical safeguards designed to protect Customer Data in accordance with Hit Labs information security policy that are consistent with generally accepted industry standards. Those safeguards will include measures designed to prevent unauthorized access, acquisition, deletion, and disclosure of Customer Data by Hit Labs personnel.
b. Third-party Subscription Service Providers. Before sharing Customer Data with a third-party service provider, Hit Labs will require that the third party maintains reasonable data practices designed to maintain the confidentiality and security of the Customer Data and preventing unauthorized acquisition or use of the Customer Data. In the event Hit Labs has a reasonable, good faith belief that an unauthorized party has acquired Customer Data, Hit Labs will notify Customer as soon as reasonably practicable after Hit Labs becomes aware of it and will use reasonable efforts to cooperate with Customer’s investigation of the incident. If such incident triggers any third-party notice requirements, Customer (not Hit Labs) shall be solely responsible for the timing, content, cost and method of any such notice and compliance with applicable laws. However, Customer (not Hit Labs) bears sole responsibility for adequate security, protection and backup of Customer Data when in Customer’s or its representatives or agents’ possession or control or when Customer chooses to use unencrypted gateways to connect to the Subscription Services. Customer (not Hit Labs) will be responsible for Authorized User’s use of Customer Data.
c. Hit Labs Personnel. Hit Labs will be responsible for the performance of Hit Labs’ personnel (including Hit Labs’ employees and independent contractors) and their compliance with Hit Labs’ obligations under this Agreement, except as otherwise specified herein.
d. 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 computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (”Customer Systems”) and the administrative, technical, and physical safeguards and controls on Customer Systems; (iv) the security and use of Customer’s and its Authorized Users’ logins, passwords, and account information; 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’ logins, passwords, and account information, 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.
e. HIPAA Non-Compliance. Customer acknowledges that Hit Labs is not a Business Associate or subcontractor (as those terms are defined in the Health Insurance Portability and Accountability Act and related amendments and regulations as updated or replaced “HIPAA”) and that the Subscription Services are not HIPAA compliant. Customer must not submit, collect or use any “personal health information” as defined in 45 CFR §160.103 (“PHI”), with or to the Subscription Services. Customer agrees that Hit Labs has no liability under this Agreement for PHI received from Customer, notwithstanding anything to the contrary herein.
f. Removal Requests. If Hit Labs (in its reasonable discretion) is required to remove any Customer Data or a Non-Hit Labs Product, or receives information that Customer Data or a Non-Hit Labs Product may violate applicable law or third-party rights, Customer will promptly remove such Customer Data from its systems upon written notice from Hit Labs (via email will suffice). If Customer does not take the required action in accordance with the above, Hit Labs may remove the applicable Customer Data or disable the applicable Non-Hit Labs Product.
9. Term and Termination.
a. Term of Agreement. This Agreement commences on the Effective Date and continues until all Authorized User subscriptions granted in accordance with this Agreement have expired or been terminated (the “Term”). Termination of this Agreement will terminate any and all Order Forms under this Agreement.
b. Term of Authorized User Subscriptions. Authorized User subscriptions commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all Authorized User subscriptions will automatically renew (without the need to execute a renewal Order Form) for additional periods equal to one year, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term will automatically increase over per-unit pricing of the immediately prior term by 5%.
c. Termination for Cause. Either party may terminate this Agreement effective after 30 days’ notice if the other party materially breaches this Agreement and such breach is not cured within the notice period.
d. Refund or Payment upon Termination for Cause. Upon any termination for by Customer under Section 9(c), Hit Labs will refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination by Hit Labs under Section 9(c), Customer will pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to Hit Labs for the period prior to the effective date of termination.
e. Portability and Deletion. During the Term, Customer will be permitted to export certain Customer Data via the Subscription Services, provided that Customer acknowledges and agrees that such ability to export may be limited by the applicable Subscription Services plan in effect and the data retention settings enabled by Customer. Following the Term, Hit Labs shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.
f. Surviving Provisions. The following sections will survive the termination or expiration of this Agreement: Sections 3(c), 3(d), 3(e), 3(f), 4, 6, 7, 9(d), 9(e), 9(f), and 10 through 14.
10. Representations and Warranties; Disclaimer.
a. Mutual Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
b. Performance Warranty. Hit Labs warrants that (i) the Subscription Services will perform materially in accordance with the applicable Documentation, and (ii) subject to Section 6(c) and Sections 3(d)-(f), Hit Labs will not materially decrease the functionality of the Subscription Services during a subscription term. For any breach of an above warranty, Customer’s sole and exclusive remedies are those described in Sections 9(c) and 9(d).
c. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, ALL SERVICES PROVIDED HEREUNDER AND ALL RELATED COMPONENTS AND INFORMATION RELATED THERETO ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND HIT LABS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT HIT LABS DOES NOT WARRANT THAT SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. HIT LABS DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
11. Limitation of Liability.
a. Limitation of Liability. IN NO EVENT SHALL HIT LAB’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID AND PAYABLE BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY.
b. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL HIT LABS HAVE ANY LIABILITY TO CUSTOMER OR TO ANY THIRD 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 HIT LABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
c. Reliance on Limitations. The limitations hereunder apply with respect to all legal theories, whether in contract, tort or otherwise. The provisions of this Section 11 allocate the risks under this Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into this Agreement.
12. Indemnification.
a. Customer Indemnification. Customer shall defend Hit Labs and its Affiliates, and its and their respective officers, directors, employees, agents, and contractors, from and against any and all third-party claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from (i) Customer’s and any Authorized User’s use of and access to the Subscription Services, including any Customer Data or other content transmitted or received by Customer or any Authorized User, (ii) Customer’s violation of any term of the Agreement, including without limitation any breach of Customer’s representations and warranties herein, (iii) Customer’s or any Authorized User’s violation of any third-party right, including without limitation any right of privacy or intellectual property rights, (iv) Customer’s or any Authorized User’s violation of any applicable law, rule or regulation, (v) Customer Data or any content that is submitted via Customer’s or any Authorized User’s account, including without limitation misleading, false, or inaccurate information, (vi) Customer’s or any Authorized User’s negligence or more culpable conduct, or (vi) any other party’s access and use of the Subscription Services with Customer’s or any Authorized User’s unique username, password or other appropriate security code (provided that such access and use was not our fault)[ (each, a “Claim Against Hit Labs”)].
b. Hit Labs Indemnification. Hit Labs shall defend Customer and its Affiliates, and its and their respective officers, directors, employees and contractors, from and against any and all third party claims, actions and demands to the extent alleging that the use of the Subscription Services, in the form provided and manner approved by Hit Labs and otherwise as permitted hereunder infringes or misappropriates a third party’s intellectual property right (a “Claim Against Customer”), and shall indemnify Customer for any damages, attorney fees and costs finally awarded against Customer as a result of, and for amounts paid by Customer under a court-approved settlement of, a Claim Against Customer, provided, however, that Hit Labs shall have no liability under this Section 12(b) to the extent a Claim Against Customer arises from (i) Customer Data or Non-Hit Labs Products, (ii) Customer’s negligence or more culpable conduct, or breach of this Agreement, (iii) any modification, combination or development of the Subscription Services that is not provided or performed by Hit Labs, including in the use of any application programming interface (API), or (iv) the use of any version of software other than the most current release made available by Hit Labs.
c. Mitigation. If the Subscription Services are, or in Hit Labs’ opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party intellectual property right, or if Customer’s or any Authorized User’s use of the Subscription Services is enjoined or threatened to be enjoined, Hit Labs may, at its option and sole cost and expense:
i. obtain the right for Customer to continue to use the Subscription Services as contemplated by this Agreement in all material respects;
ii. modify or replace the Subscription Services, in whole or in part, to seek to make the Subscription Services (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Subscription Services under this Agreement; or
iii. by written notice to Customer, terminate this Agreement with respect to all or part of the Subscription Services and require Customer to immediately cease any use of the Subscription Services or any specified part or feature thereof, provided that, in such an event, Customer will be entitled to a pro-rata refund of any prepaid fees covering the remainder of the applicable term of all subscriptions after the effective date of termination.
d. Indemnification Procedure. The indemnified party will provide the indemnifying party with prompt written notice of any claim, suit or demand, the right to assume the exclusive defense and control of any matter that is subject to indemnification, and cooperation with any reasonable requests assisting the indemnifying party’s defense and settlement of such matter.
e. Exclusive Remedy. This Section 12 states Hit Lab’s sole liability to, and Customer’s sole and exclusive remedy against, Hit Labs for any type of claim alleging a violation of any right of privacy or intellectual property right.
13. Confidentiality.
a. 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. Confidential Information of Customer shall include Customer Data, and Confidential Information of each party shall include the terms and conditions of this Agreement 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 shall not include any information that (i) is or becomes generally available 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.
b. Protection of Confidential Information. 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) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, its legal counsel and accountants or in confidence in connection with bona fide fundraising or M&A due diligence activities.
c. Compelled Access or Disclosure. The Receiving Party may access or 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 access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure. If the Receiving Party is compelled by law to access or 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 access or disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
14. General Provisions.
a. Publicity. Customer grants Hit Labs the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on Hit Labs’ website and in other public or private communications with existing or potential Hit Labs customers, subject to Customer’s standard trademark usage guidelines as provided to Hit Labs from time-to-time.
b. Use By or For the U.S. Government. The Subscription Services are a “commercial item,” as defined at 48 C.F.R. §2.101, and constitute “commercial computer software” and “commercial computer software documentation,” as used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202 to §227.7204. This commercial computer software and related Documentation is provided to end users for use, by and on behalf of the U.S. Government, with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
c. Additional U.S. Government Terms. If Customer is a U.S. Government (or use of the Subscription Services is for the U.S. Government), the terms in this section apply.
i. For the purposes of this Section 14(c), the term “U.S. Government” shall mean a United States federal executive agency organized under Article III of the United States Constitution, including, without limitation, any sub-agencies, departments, and bureaus thereof.
ii. Use By or For the U.S. Government. The Subscription Services and Documentation are each a “commercial item,” as defined at 48 C.F.R. §2.101, and constitute “commercial computer software” and “commercial computer software documentation,” as such terms are defined in 48 C.F.R. §12.212. The Subscription Services and related Documentation are provided to end users for use, by and on behalf of the U.S. Government, with only those rights as are granted to all other end users pursuant to the terms and conditions herein, and in accordance with (a) 48 C.F.R. §§ 227.7201 through 227.7204, with respect to the Department of Defense and its contractors, or (b) 48 C.F.R. § 12.211 and 48 C.F.R. § 12.212, with respect to all other U.S. Government agencies and its contractors.
iii. If the Subscription Services and Documentation are being used by the U.S. Government, or on behalf of the U.S. Government, and the terms and conditions of this Agreement fail to meet the U.S. Government’s needs or are inconsistent with applicable federal law, the Customer must immediately discontinue using the Subscription Services and Documentation.
iv. Hit Labs agrees that Customer’s seals, trademarks, logos, service marks, trade names, and the fact that Customer has a presence on one of Hit Labs’ web pages and uses Hit Labs’ Services, will not be used by Hit Labs in such a manner as to state or imply that Hit Labs’ products or services are endorsed, sponsored or recommended by Customer or by any other element of the U.S. Government, or are considered by Customer or the U.S. Government to be superior to any other products or services. Except for pages whose design and content is under the control of the Customer, or for links to or promotion of such pages, Hit Labs agrees not to display any Customer or government seals, trademarks, logos, service marks, and trade names on Hit Labs’ homepage or elsewhere on one of Hit Labs’ hosted sites unless permission to do so has been granted by Customer or by other relevant federal government authority. Hit Labs may list Customer’s name in a publicly available customer list on a web page or elsewhere so long as the name is not displayed in a more prominent fashion than that of any other third-party name.
d. State and Local Government Users. If Customer is a state or local government, the terms in this section apply, but only to the extent the Subscription Services are being used in an Authorized User’s official capacity as a state or local government official. The sections in the Agreement titled “Governing Law,” “Venue; Waiver of Jury Trial; Fees,” and “Customer Indemnification” will not apply to Customer only to the extent Customer’s jurisdiction’s laws prohibit Customer from accepting the requirements in those sections.
e. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of such Party, which may include denial-of-service attacks, strikes, shortages, riots, fires, acts of God, war, epidemics, terrorism, and governmental action.
f. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
g. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
h. Notices. Any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 14(h):
Hit Labs, Inc.
2000 W. Ashton Blvd., Suite 425
Lehi, UT 84043
Facsimile: 1.484.902.5867
Attention: Timothy Pales, Chief Revenue Officer
Notices sent in accordance with this Section 14(h) will be deemed effectively given: (i) when received, if delivered by hand, with signed confirmation of receipt; (ii) when received, if sent by a nationally recognized overnight courier, signature required; (iii) when sent, if by facsimile, (with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (iv) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
i. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. No waiver under the Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
j. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
k. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its assets. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, Hit Labs shall refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
l. Governing Law. This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the State of Utah, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
m. Venue; Waiver of Jury Trial; Fees. The state and federal courts located in Salt Lake City, Utah shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.
n. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, this Agreement supersedes the terms of any online agreement electronically accepted by Customer. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
