BEAKPOINT INSIGHTS, INC.

This Master Services Agreement (this “Agreement”) contains the terms and conditions that govern your purchase and use of the Services and SaaS Services (as defined below), and is a contract between Beakpoint Insights, Inc., a Delaware corporation with its principal place of business at 500 W. Fifth Street, Suite 400, Winston-Salem, NC 27101 (“Provider”, “Beakpoint Insights”, “we”, “us”, or “our”), and you or the entity or organization that you represent (“Client”, “you”, or “your”).

This Agreement takes effect when you enter into an Order or Statement of Work with Provider (the “Effective Date”). The individual who accepts this Agreement represents that they are authorized to enter into this Agreement on behalf of Client.

Definitions.
1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party, where “control” means having more than fifty percent (50%) ownership or the right to direct the management of the entity.
2. “Confidential Information” means all non-public information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally, in writing, or by other means, 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 includes, without limitation, business plans, technology, technical information, product plans, pricing, customer information, and business strategies.
3. “Deliverables” means all work product, including reports, data, and other materials (excluding the SaaS Services), that are developed or produced by Provider for Client under a Statement of Work.
4. “Documentation” means all user manuals, operating instructions, and other written materials that relate to the Services or SaaS Services.
5. “Intellectual Property Rights” means all patents, copyrights, trademarks, trade secrets, and other intellectual property rights, including all applications or registrations for any of the foregoing.
6. “Order” or “Order Form” means an ordering document specifying the SaaS Services to be provided to Client, including any addenda and supplements thereto, that is entered into between Provider and Client, including any addenda and supplements thereto. An Order Form may be presented to Client through the SaaS Services interface or as a document provided by Provider for Client’s signature.
7. “SaaS Services” means Provider’s software-as-a-service offering, including any associated software, applications, and platform as described in the applicable Statement of Work or Order Form.
8. “Services” means the professional services performed by Provider for Client as described in a Statement of Work, excluding the SaaS Services.
9. “Statement of Work” or “SOW” means a document executed by both parties that describes the specific Services and Deliverables to be provided by Provider to Client, including any applicable fees, timelines, and other terms.
10. “Administrative Controls” means management constraints, operational procedures, and accountability procedures that are implemented to provide an appropriate level of protection for Client Data, including but not limited to access management policies, security awareness training, audit procedures, and incident response procedures.
11. “Physical Controls” means measures implemented to protect Provider’s facilities, equipment, and physical media from unauthorized access, damage, and theft, including but not limited to physical access controls, environmental safeguards, and media handling procedures.
12. “Technical Controls” means the logical and technical measures implemented to control access to and use of Provider’s systems and data, including but not limited to access controls, encryption, network security, logging and monitoring, and vulnerability management.
13. “Information Security Program” means Provider’s documented set of Administrative Controls, Physical Controls, and Technical Controls designed to protect the security, confidentiality, and integrity of Client Data and Provider’s systems.
Services, SaaS Services, and Deliverables.
1. Statements of Work and Order Forms. The specific Services to be performed and Deliverables to be provided by Provider shall be described in one or more Statements of Work. The specific SaaS Services to be provided by Provider shall be described in one or more Statements of Work or Order Forms. Each Statement of Work or Order Form shall reference this Agreement and become a part of this Agreement upon execution by both parties.
2. SaaS Services. Provider shall make the SaaS Services available to Client pursuant to this Agreement and the applicable Statement of Work or Order Form. Client’s right to use the SaaS Services is limited to the usage metrics and volumes stated in the applicable Statement of Work or Order Form. Unless otherwise specified in the applicable Statement of Work or Order Form,
  1. SaaS Services are purchased as subscriptions for the term stated in the applicable Statement of Work or Order Form, and
  2. additional subscription quantities may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of the subscription term remaining at the time the additional quantities are added.
3. Access to SaaS Services. Provider shall use commercially reasonable efforts to make the SaaS Services available 24 hours a day, 7 days a week, except for:
  1. planned downtime (which Provider shall schedule to the extent practicable during weekend hours from 9:00 p.m. Friday to 3:00 a.m. Monday, Eastern Time), and
  2. any unavailability caused by circumstances beyond Provider’s reasonable control, including but not limited to, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or denial of service attacks.
4. Service Levels and Remedies.
  1. Provider shall provide the service levels specified in the applicable Statement of Work or Order Form. If the SaaS Services fail to achieve the service levels, Client may be entitled to the remedies specified in the applicable Statement of Work or Order Form.
  2. Unless otherwise specified in the applicable Statement of Work or Order Form, if Provider fails to meet the service level availability commitment in any calendar quarter (starting in January), Client will be eligible to receive a service credit as follows:
    1. Quarterly Uptime Percentage: Less than 99.5% but equal to or greater than 99.0%
      1. Service Credit Percentage: 5% of one month’s subscription fees
    2. Quarterly Uptime Percentage: Less than 99.0% but equal to or greater than 95.0%
      1. Service Credit Percentage: 7.5% of one month’s subscription fees
    3. Quarterly Uptime Percentage: Less than 95.0%
      1. Service Credit Percentage: 10% of one month’s subscription fees.
  3. To receive a service credit, Client must submit a claim within thirty (30) days after the end of the quarter in which the failure occurred. The maximum service credit for any monthly billing period shall not exceed 10% of Client’s subscription fees for one month.
  4. Service credits are Client’s sole and exclusive remedy for any failure by Provider to meet service level commitments, except for failures resulting from Provider’s gross negligence or willful misconduct.
  5. Service credits will be applied against future subscription fees or, upon termination, refunded to Client.
  6. Availability Measurement. “Quarterly Uptime Percentage” means the total number of minutes in a quarter (starting in January) minus the number of minutes of Downtime in that quarter, divided by the total number of minutes in that quarter.
  7. “Downtime” means periods during which the SaaS Services are unavailable to Client, as measured at Provider’s facilities, excluding:
    1. Planned maintenance performed with at least 48 hours’ advance notice;
    2. Emergency maintenance required to address security vulnerabilities or system integrity issues;
    3. Outages resulting from Client’s equipment, software, or network connections;
    4. Outages resulting from Client’s use of the SaaS Services in violation of this Agreement;
    5. Outages resulting from Client’s content or applications;
    6. Force majeure events as described in Section 13.5; or
    7. Outages arising from suspensions permitted under Section 3.5.
  8. Provider will make uptime information available to Client upon request, which shall be measured using industry-standard monitoring tools and protocols.
5. Support Services.
  1. Standard Support. Unless otherwise specified in the applicable Statement of Work or Order Form, Provider shall provide the following standard support services at no additional charge:
    1. Email support during Business Hours (9:00 a.m. to 5:00 p.m. Eastern Time, Monday through Friday, excluding U.S. federal holidays);
    2. Access to Provider’s online knowledge base and documentation;
    3. Bug fixes and error corrections in accordance with Provider’s standard practices.
  2. Response Times. Provider will use commercially reasonable efforts to respond to support requests within the following timeframes, based on severity:
    1. Critical Issues (SaaS Services unavailable or severely impaired): Initial response within four (4) Business Hours;
    2. High Severity Issues (major functionality impaired): Initial response within eight (8) Business Hours;
    3. Medium Severity Issues (limited functionality impaired): Initial response within two (2) Business Days;
    4. Low Severity Issues (minor issues, general questions): Initial response within three (3) Business Days.
  3. Enhanced Support. Provider may offer enhanced support packages for an additional fee as specified in an Order Form.
  4. Support Exclusions. Support services do not include:
    1. on-site support;
    2. support for third-party software or services not provided by Provider;
    3. support for customizations or modifications not made by Provider;
    4. training; or
    5. professional services.
  5. Version Updates. The SaaS Services are provided on a multi-tenant basis, and Provider maintains a single, current version for all customers. Provider may update the SaaS Services from time to time, and all customers will receive these updates simultaneously. Client acknowledges that:
    1. Provider does not maintain multiple versions of the SaaS Services;
    2. Updates are applied automatically to all customers; and
    3. Client cannot opt out of updates.
    4. Provider will use commercially reasonable efforts to notify Client of significant updates before they are implemented.
  6. Performance of Services. Provider shall perform the Services and deliver the Deliverables in accordance with the specifications, timelines, and other requirements set forth in the applicable Statement of Work. Provider shall perform the Services in a professional and workmanlike manner, consistent with industry standards.
  7. Acceptance. Unless otherwise specified in the applicable Statement of Work, Client shall have fifteen (15) business days following receipt of any Deliverable (the “Acceptance Period”) to notify Provider in writing of any material non-conformities with the requirements set forth in the applicable Statement of Work. If Client fails to provide such notice within the Acceptance Period, the Deliverable shall be deemed accepted. If Client provides timely notice of any material non-conformities, Provider shall promptly correct such non-conformities and resubmit the Deliverable for acceptance.
  8. Change Orders. Either party may request changes to a Statement of Work by submitting a written change request to the other party. No change to a Statement of Work shall be effective unless and until a written change order describing such change has been executed by both parties (“Change Order”). Provider shall not be obligated to perform any work outside the scope of an agreed-upon Statement of Work without a Change Order.
Term and Termination.
1. Term. This Agreement shall commence on the Effective Date and continue until terminated as provided herein. Each Statement of Work or Order Form shall specify its own term.
2. Subscription Term. The term for each SaaS Services subscription shall be as specified in the applicable Statement of Work or Order Form (“Subscription Term”). Each Subscription Term shall automatically renew in accordance with Section 4.5 unless either Party gives the other notice of non-renewal in accordance with Section 4.6.
3. Termination for Convenience. Either party may terminate this Agreement for convenience upon thirty (30) days’ prior written notice to the other party, provided that any Statement of Work or Order Form in effect at the time of termination shall continue until completed or terminated in accordance with its terms.
4. Termination for Cause. Either party may terminate this Agreement or any Statement of Work or Order Form immediately upon written notice to the other party if the other party:
  1. Materially breaches this Agreement or any Statement of Work or Order Form and fails to cure such breach within thirty (30) days after receiving written notice thereof; or
  2. Becomes insolvent, files for bankruptcy, or makes an assignment for the benefit of creditors.
5. Suspension of SaaS Services. Provider may suspend Client’s access to the SaaS Services if:
  1. Client fails to pay any undisputed amount due under this Agreement within fifteen (15) days after receiving written notice from Provider that payment is past due. Provider will provide an initial payment reminder when payment is five (5) days past due, followed by a suspension warning at ten (10) days past due. If suspended, services will be promptly restored upon receipt of all outstanding amounts. Provider reserves the right to charge a reasonable reactivation fee for services suspended due to non-payment;
  2. Client violates Section 11.1 (Acceptable Use) or Section 11.2 (Usage Restrictions);
  3. Client’s use of the SaaS Services poses a security risk to the SaaS Services or other users of the SaaS Services, or may adversely impact the integrity of the SaaS Services or the systems or content of any other customer of Provider; or
  4. Suspension is required pursuant to a subpoena, court order, or other legal requirement. Provider shall provide Client with notice of any such suspension and shall reinstate the SaaS Services as soon as the event giving rise to the suspension has been resolved.
6. Effect of Termination. Upon termination of this Agreement or any Statement of Work or Order Form:
  1. Provider shall immediately cease performing the applicable Services and providing the applicable SaaS Services;
  2. Client shall pay Provider for all Services performed, SaaS Services provided, and expenses incurred up to the effective date of termination;
  3. Each party shall return or destroy all Confidential Information of the other party in its possession; and
  4. The provisions of Sections 5 (Intellectual Property), 6 (Confidentiality), 7 (Representations and Warranties), 8 (Limitation of Liability), 9 (Indemnification), 10 (Data Protection and Security), and 13 (General Provisions) shall survive termination.
7. Post-Termination Assistance.
  1. Upon Client’s written request within thirty (30) days after the effective date of termination, Provider shall provide reasonable transition assistance to facilitate Client’s orderly transition to an alternative solution (“Transition Assistance”). Such Transition Assistance shall be provided at Provider’s then-current professional services rates for a period not to exceed ninety (90) days after termination (the “Transition Period”).
  2. Transition Assistance may include:
    1. Developing a transition plan in collaboration with Client;
    2. Providing reasonable documentation regarding Client’s configuration of the SaaS Services;
    3. Assisting with the export of Client Data in a standard format, subject to Section 10.8; and
    4. Answering reasonable questions about the SaaS Services to facilitate migration.
  3. Transition Assistance does not include:
    1. Development of custom tools or scripts;
    2. Migration of Client Data to a third-party system;
    3. Training Client personnel on alternative solutions; or
    4. Any professional services not explicitly included in a mutually agreed transition plan.
  4. Transition Assistance is subject to Client having paid all outstanding undisputed fees and continuing to pay fees for any SaaS Services or other services used during the Transition Period.
8. Refunds Upon Termination.
  1. Termination by Client for Cause. If Client terminates this Agreement or any Order Form for Provider’s material breach pursuant to Section 3.4(a), Client shall be entitled to a pro-rata refund of any prepaid, unused fees for the terminated portion of the Subscription Term.
  2. Termination by Provider for Cause. If Provider terminates this Agreement or any Order Form for Client’s material breach pursuant to Section 3.4(a), Client shall not be entitled to any refund of fees, and Client shall immediately pay any unpaid fees for the remainder of the Subscription Term for all terminated Orders.
  3. Termination for Convenience. If either party terminates this Agreement for convenience pursuant to Section 3.3, Client shall not be entitled to any refund of fees, and Client shall remain obligated to pay all fees for the remainder of the then-current Subscription Term for all active Orders, unless otherwise specified in the applicable Order Form.
  4. Suspension. No refunds or credits will be provided during any period of suspension under Section 3.5. If Client’s account is suspended for non-payment and subsequently restored, Client will not be entitled to any credit or refund for the suspension period.
Fees and Payment.
1. Fees. Client shall pay Provider the fees and expenses specified in each Statement of Work or Order Form. Unless otherwise specified in a Statement of Work or Order Form, Provider shall invoice Client monthly for Services performed and expenses incurred.
2. Payment Terms. Client shall pay all undisputed amounts within thirty (30) days after receipt of Provider’s invoice. All payments shall be made in U.S. dollars. Late payments may accrue interest at the rate of 1.5% per month or the maximum rate permitted by law, whichever is less.
  
  If Client disputes any portion of an invoice, Client must notify Provider in writing within fifteen (15) days of the invoice date, stating the amount disputed and the reason for the dispute, and must pay all undisputed portions of the invoice within the regular payment term. The parties shall work in good faith to resolve any disputes within thirty (30) days. If Client fails to dispute an invoice within the fifteen (15) day period, the invoice will be deemed accepted by Client. Any disputed amounts determined to be payable to Provider shall be due within five (5) business days after resolution of the dispute.
3. Taxes. All fees are exclusive of taxes. Client is responsible for paying all taxes associated with the Services and SaaS Services, excluding taxes based on Provider’s net income.
4. Expenses. Unless otherwise specified in a Statement of Work or Order Form, Client shall reimburse Provider for all reasonable travel and other out-of-pocket expenses incurred by Provider in performing the Services, provided that such expenses are approved in advance by Client and supported by appropriate documentation.
5. Auto-Renewal. Unless either party takes a non-renewal action as described in Section 4.6, Orders will automatically renew for additional periods of the same duration as the expiring term (each, a “Renewal Term”). For Orders that have a 12-month or longer duration, Provider will give Client notice by email approximately 60 days prior to the start of the Renewal Term. Such notice will include notice of pricing adjustments, if any, pursuant to Section 4.7 below. For Orders that have a duration of less than 12 months, Provider will give Client notice by email approximately 15 days prior to the start of the Renewal Term solely in connection with pricing adjustments or other Order changes. Failure of Client to take a non-renewal action in a timely manner shall be deemed to constitute consent to the applicable fee increase.
6. Non-Renewal Action. If Client does not want to auto-renew, Client must submit a request to their Provider account manager at least 60 days before the expiration of the then-current term or make the desired changes within the SaaS Services interface. If Client does not want to continue to use the SaaS Services, Client can prevent incurring further expenses by submitting a support request for disablement of Client’s account including the desired disablement date.
  
  If Client continues to use the SaaS Services following expiration of the then-current term without a new Order in place, such SaaS Services will continue to be available on a month-to-month basis at Provider’s then-current list pricing, which will be calculated and invoiced monthly in arrears based on actual usage. No such continued use shall be construed to extend the term or create a new term unless a new Order is executed by both parties. Either party may terminate such month-to-month service by providing thirty (30) days’ written notice to the other party. Provider reserves the right to suspend or terminate Client’s access to the SaaS Services at any time following expiration of the Order. Client acknowledges that promotional pricing, volume discounts, or other special terms from the expired Order will not apply to month-to-month usage.
7. Auto-Renewal Pricing Adjustments. In connection with any auto-renewal for Orders that have a duration of 12 months or longer, Provider may increase the pricing in effect at the end of the applicable term for the SaaS Services by up to the greater of 9% or a percentage equal to the increase for the prior 12-month period (or the prior period of the same duration as the prior term, if longer) in the CPI – All Urban Consumers (U.S. All Items) or successor series, as published by the U.S. Bureau of Labor Statistics. Unless explicitly provided otherwise on the applicable Order:
  1. credits do not renew and promotional or one-time pricing for any Services or SaaS Services under the Order will not be extended to any renewal; and
  2. any renewal for Orders that have a duration of less than 12 months, or where Client seeks a reduction in the subscription quantity and/or the term will result in re-pricing at renewal and will not be subject to the limits herein.
  3. Promotional and Introductory Pricing. Unless explicitly stated otherwise in writing in the applicable Order:
    1. any promotional, introductory, one-time, or special discounts or incentives will not apply to renewals of the Order;
    2. all renewal pricing will be based on Provider’s then-current standard list pricing; and
    3. any pricing specified as “promotional,” “introductory,” “discount,” “limited time,” or similar terminology applies only to the initial term specified in the Order.
  4. Client acknowledges that, for clarity, renewal pricing may represent an increase from the initial term pricing even in cases where a percentage cap on increases applies, as such caps are calculated based on standard (non-promotional) pricing.
8. Free and Beta Services.
  1. The following applies to any use of
    1. SaaS Services that Provider makes available to Client without charging a fee (“Free Services”) and
    2. services or functionality that Provider makes available to Client and that is not generally made available to Provider’s customers and/or is designated as beta, pilot, preview, or similar designation (“Beta Services”).
  2. Unless otherwise set forth in an Order:
    1. Free Services and Beta Services offered at no charge will be subject to the fees on Provider’s standard pricing upon expiration of any free period term set forth in an applicable Order or if there is no term in an Order, upon 15 days’ notice by Provider;
    2. free trials for new Clients have a 14-day term;
    3. Provider reserves the right to discontinue or modify the provision of any Beta Services at any time with or without notice;
    4. Sections 2.3 (Access to SaaS Services), 2.4 (Service Levels), 2.5 (Support), and 7.2 (Provider Representations and Warranties) do not apply to Free Services and Beta Services; and
    5. Provider’s security measures may not fully encompass the Beta Services, except to the extent they apply to the underlying SaaS Services.
  3. Limited Liability and Indemnification for Free and Beta Services. Notwithstanding anything to the contrary in this Agreement, Provider’s total cumulative liability arising out of or related to Free Services and Beta Services shall not exceed one thousand dollars ($1,000), and Provider’s indemnification obligations under Section 9.1 shall not apply to Free Services and Beta Services. Client acknowledges the inherently experimental and potentially unstable nature of Free Services and Beta Services and agrees to use them at its own risk.
  4. Name and Logo Usage During Free Trials. Unless Client opts out in writing, Client grants Provider permission to use Client’s name and logo to identify Client as a user of the Free Services on Provider’s website and in marketing materials during the free trial period and for thirty (30) days thereafter. This permission is limited to factual references that Client is using or has used the Free Services and does not include testimonials, endorsements, or detailed descriptions of Client’s use, which require separate written approval. Client may opt out of this permission at any time by emailing marketing@beakpointinsights.com.
9. Payment Methods. Provider accepts payment via credit card, ACH transfer, and other electronic payment methods as specified in the applicable Order Form or on Provider’s website. For credit card and automatic payment methods, Client authorizes Provider to charge the payment method on file for all fees when due. Client is responsible for providing complete and accurate billing and contact information and notifying Provider of any changes to such information. If Client’s payment by credit card or other electronic payment method is declined, Client must provide an alternative payment method or pay by another acceptable method within five (5) business days. Provider reserves the right to charge a reasonable processing fee for certain payment methods to cover associated costs.
Intellectual Property.
1. Client Materials. Client retains all right, title, and interest in and to any materials provided by Client to Provider for use in performing the Services (“Client Materials”), including all Intellectual Property Rights therein.
2. Provider Materials. Provider retains all right, title, and interest in and to the Services, software, platform, technology, Provider’s proprietary software-as-a-service solution and all components thereof, and any materials that Provider owned prior to performing the Services or creates independently of the Services and outside the scope of this Agreement (“Provider Materials”), including all Intellectual Property Rights therein.
3. License to Provider Materials. Subject to Client’s compliance with this Agreement and payment of all applicable fees, Provider hereby grants Client a limited, non-exclusive, non-transferable, revocable license during the term of the applicable Statement of Work to:
  1. Access and use the Provider Materials solely for Client’s internal business purposes in accordance with the documentation and any usage limitations specified in the applicable Statement of Work; and
  2. Use and reproduce the Documentation solely in connection with Client’s authorized use of the Provider Materials.
4. Deliverables. Unless otherwise specified in a Statement of Work:
  1. Provider retains all right, title, and interest in and to any Deliverables, including all Intellectual Property Rights therein.
  2. Subject to Client’s compliance with this Agreement and payment of all applicable fees, Provider hereby grants Client a limited, non-exclusive, non-transferable license during the term of the applicable Statement of Work to use the Deliverables solely for Client’s internal business purposes.
  3. For any custom code or customizations specifically developed for Client as a Deliverable that are not part of Provider’s core SaaS platform or offering, the ownership and license terms shall be as specified in the applicable Statement of Work.
5. Feedback. If Client provides Provider with any feedback, suggestions, or recommendations regarding the Services or Provider Materials (“Feedback”), Client hereby grants Provider a perpetual, irrevocable, worldwide, royalty-free license to use, reproduce, modify, create derivative works from, distribute, and display the Feedback for any purpose.
6. Restrictions. Client shall not (and shall not permit any third party to):
  1. reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services or Provider Materials;
  2. modify, translate, or create derivative works based on the Services or Provider Materials;
  3. rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the Services or Provider Materials;
  4. use the Services or Provider Materials for timesharing or service bureau purposes or for any purpose other than its own internal business purposes;
  5. remove any proprietary notices from the Services or Provider Materials;
  6. publish or disclose to third parties any evaluation of the Services or Provider Materials without Provider’s prior written consent;
  7. use the Services or Provider Materials to store or transmit infringing, libelous, unlawful, or tortious material or to store or transmit material in violation of third-party privacy rights;
  8. use the Services or Provider Materials to store or transmit malicious code or to interfere with or disrupt the integrity or performance of the Services or Provider Materials;
  9. attempt to gain unauthorized access to the Services or Provider Materials or their related systems or networks; or use the Services or Provider Materials in a manner that exceeds the scope or violates the terms of this Agreement or any applicable Statement of Work.
7. Third-Party Materials. If any third-party materials are incorporated into the Services or Deliverables, Provider shall identify such materials to Client and obtain any necessary licenses or permissions for Client’s use of such materials as part of the Services or Deliverables.
Confidentiality.
1. Obligations. The Receiving Party shall:
  1. use the Disclosing Party’s Confidential Information solely for the purpose of performing its obligations or exercising its rights under this Agreement;
  2. protect the Disclosing Party’s Confidential Information using the same degree of care that it uses to protect its own confidential information of a similar nature, but in no event less than reasonable care; and
  3. not disclose the Disclosing Party’s Confidential Information to any third party without the Disclosing Party’s prior written consent, except to the Receiving Party’s employees, contractors, and advisors who have a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein.
2. Exceptions. The obligations in Section 6.1 shall not apply to any information that:
  1. is or becomes publicly available through no fault of the Receiving Party;
  2. was known to the Receiving Party prior to disclosure by the Disclosing Party;
  3. is rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure;
  4. is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or
  5. is feedback, suggestions, or recommendations provided by Client regarding the Services or SaaS Services, which Provider may use for any purpose without restriction. Client agrees that any feedback, suggestions, feature requests, or recommendations provided to Provider will not be considered Confidential Information, even if designated as such, and may be used by Provider to modify, enhance, maintain, or market the Services or SaaS Services without attribution or compensation to Client.
3. Compelled Disclosure. If the Receiving Party is required by law or court order to disclose Confidential Information, the Receiving Party shall, to the extent legally permitted, provide the Disclosing Party with prompt written notice and cooperate with the Disclosing Party’s efforts to obtain a protective order or other appropriate remedy.
4. Duration. The obligations in this Section 6 shall continue for a period of five (5) years after the termination or expiration of this Agreement, except for trade secrets, which shall be maintained as confidential for as long as they qualify as trade secrets under applicable law.
5. Residual Information. Notwithstanding anything to the contrary in this Agreement, each party may use for any purpose general knowledge, skills, experience, ideas, concepts, know-how, and techniques retained in the unaided memory of an individual even if acquired as a result of this Agreement, so long as that individual has not intentionally memorized the information for the purpose of retaining and subsequently using or disclosing it. This Section 6.5 shall not be deemed to grant either party a license under the other party’s copyrights, patents, or other intellectual property rights.
6. Injunctive Relief. Each party acknowledges that any breach of its confidentiality obligations under this Agreement may cause irreparable harm to the other party for which monetary damages would be an inadequate remedy. Accordingly, in addition to any other remedies available, the non-breaching party will be entitled to seek injunctive and other equitable relief to prevent or stop any breach or threatened breach of this Agreement, without the necessity of posting a bond or other security.
Representations and Warranties.
1. Mutual Representations and Warranties. Each party represents and warrants that:
  1. It has the full right, power, and authority to enter into and perform this Agreement;
  2. Its performance of this Agreement will not conflict with any other agreement or obligation; and
  3. It will comply with all applicable laws in performing its obligations under this Agreement.
2. Provider Representations and Warranties. Provider represents and warrants that:
  1. The Services will be performed in a professional and workmanlike manner in accordance with the applicable Statement of Work;
  2. The Deliverables will substantially conform to the specifications set forth in the applicable Statement of Work for a period of thirty (30) days after acceptance;
  3. The SaaS Services will function substantially in accordance with the Documentation when used by Client in accordance with this Agreement and the Documentation;
  4. Provider has implemented and will maintain appropriate technical, organizational, and physical safeguards designed to protect the security, confidentiality, and integrity of Client’s Confidential Information and any personal data processed by Provider on Client’s behalf;
  5. Provider has the right to grant the licenses specified in this Agreement; and
  6. The Deliverables and SaaS Services, when used in accordance with this Agreement and the Documentation, will not infringe any third party’s Intellectual Property Rights.
3. Client Representations and Warranties. Client represents and warrants that:
  1. It has the right to provide the Client Materials to Provider for use in accordance with this Agreement;
  2. It will use the SaaS Services only in accordance with this Agreement, the Documentation, and all applicable laws; and
  3. It will not use the SaaS Services to store or transmit material that is defamatory, libelous, unlawful, infringing, or violates the privacy or intellectual property rights of any third party.
4. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
5. Warranty Claims. To make a warranty claim under Section 7.2(a), (b), or (c), Client must notify Provider in writing of the alleged breach during the applicable warranty period, specifying in reasonable detail the nature of the non-conformity or defect. Any warranty claim not made within the applicable warranty period will be deemed waived. Upon receipt of a valid warranty claim, Provider will use commercially reasonable efforts to correct the non-conformity or defect at no additional charge to Client. The foregoing remedies are Client’s sole and exclusive remedies for any breach of the warranties in Section 7.2(a), (b), or (c).
Limitation of Liability.
1. Exclusion of Certain Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADDITIONALLY, PROVIDER WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM OR RELATED TO:
  1. INABILITY TO USE THE SERVICES OR SAAS SERVICES;
  2. DELAYS OR SERVICE INTERRUPTIONS;
  3. ANY EXPENDITURES OR INVESTMENTS MADE IN CONNECTION WITH THIS AGREEMENT BY CLIENT; OR
  4. CLIENT’S USE OR INABILITY TO USE OR ACCESS THIRD-PARTY INTEGRATIONS.
    
    FURTHER, PROVIDER WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM OR COSTS INCURRED IN CONNECTION WITH:
  5. LOSS, CORRUPTION, OR INACCURACY OF DATA;
  6. RESTORATION OR RECONSTRUCTION OF DATA, WHETHER BY PROVIDER OR CLIENT; OR
  7. CLIENT’S FAILURE TO IMPLEMENT REASONABLE BACKUP, SECURITY, OR OTHER PROCEDURES RECOMMENDED IN THE DOCUMENTATION OR STANDARD INDUSTRY PRACTICE. CLIENT ACKNOWLEDGES THAT IT IS RESPONSIBLE FOR MAINTAINING BACKUP COPIES OF ITS DATA TO THE EXTENT IT DEEMS NECESSARY.
2. Liability Cap. EXCEPT AS PROVIDED IN SECTION 8.3, EACH PARTY’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CLIENT TO PROVIDER UNDER THE STATEMENT OF WORK GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
3. Exceptions. The limitations and exclusions in Sections 8.1and 8.2 shall not apply to:
  1. Either party’s indemnification obligations under Section 9;
  2. Either party’s breach of its confidentiality obligations under Section 6;
  3. Client’s payment obligations under Section 4; or
  4. Any liability that cannot be limited or excluded under applicable law.
Indemnifications.
1. Provider Indemnification. Provider shall defend, indemnify, and hold harmless Client and its officers, directors, employees, and agents from and against any third-party claims, actions, suits, or proceedings, and any resulting damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees), to the extent arising out of or related to:
  1. An allegation that the SaaS Services, Deliverables, or Services as provided by Provider and used in accordance with this Agreement infringe any third party’s Intellectual Property Rights; or
  2. Provider’s violation of applicable laws or regulations in providing the Services or SaaS Services.
2. Client Indemnification. Client shall defend, indemnify, and hold harmless Provider and its officers, directors, employees, and agents from and against any third-party claims, actions, suits, or proceedings, and any resulting damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees), arising out of or related to:
  1. Client’s alleged or actual negligence, willful misconduct, or breach of this Agreement;
  2. An allegation that the Client Materials infringe any third party’s Intellectual Property Rights; or
  3. Client’s violation of applicable laws or regulations.
3. Indemnification Procedures. The indemnified Party shall:
  1. promptly notify the indemnifying Party in writing of any claim for which indemnification is sought;
  2. give the indemnifying Party sole control over the defense and settlement of the claim (provided that the indemnifying Party shall not settle any claim without the indemnified Party’s prior written consent if such settlement would impose any liability on the indemnified Party); and
  3. provide the indemnifying Party with reasonable assistance in the defense and settlement of the claim at the indemnifying Party’s expense.
4. Infringement Remedies. If any Deliverable or Service becomes, or in Provider’s opinion is likely to become, the subject of an infringement claim, Provider may, at its option and expense:
  1. procure for Client the right to continue using the Deliverable or Service;
  2. modify the Deliverable or Service to make it non-infringing without materially diminishing its functionality; or
  3. if neither (a) nor (b) is commercially reasonable, terminate Client’s rights to use the affected Deliverable or Service and refund to Client a pro-rata portion of the fees paid for the affected Deliverable or Service.
5. Indemnification Cap. Notwithstanding anything to the contrary in this Agreement, Provider’s total cumulative liability for any indemnification obligations under Section 9.1 shall not exceed two (2) times the total amount paid or payable by Client to Provider under this Agreement during the twelve (12) months preceding the event giving rise to the claim. This limitation does not apply to indemnification claims based on Section 9.1(a) (infringement of Intellectual Property Rights).
6. Exclusions from Indemnification Obligations. Provider will have no obligation under 9.1(a) for any infringement claim arising from:
  1. Client’s use of the SaaS Services or Deliverables in violation of this Agreement or the Documentation;
  2. Modifications to the SaaS Services or Deliverables not made by or authorized in writing by Provider;
  3. Client Data or third-party content provided by Client;
  4. Combination, operation, or use of the SaaS Services or Deliverables with systems, data, or processes not provided by Provider, if the infringement would not have occurred without such combination, operation, or use;
  5. Provider’s compliance with Client’s specifications, designs, or instructions;
  6. Use of the SaaS Services or Deliverables after Provider has notified Client to discontinue such use; or
  7. Client’s failure to use updated or modified versions of the SaaS Services or Deliverables provided by Provider that would have avoided the infringement.
Data Protection and Security.
1. Data Protection. Each Party shall comply with all applicable data protection laws and regulations. To the extent that Provider processes any personal data (as defined under applicable law) on behalf of Client, the Parties shall enter into a data processing agreement that complies with applicable law.
2. Client Environment and Data Connections. As between the Parties, Client controls Client’s environment and its individual components (each, a “Client Component”), whether owned, leased or licensed by Client, located on Client’s premises or cloud-based, or used by Client on a software-as-a-service basis or otherwise. Client is solely responsible for selecting, implementing, activating, deactivating, and configuring the connections between the Client Components and the SaaS Services (the “Connections”) and configuring the SaaS Services, including with respect to how they interoperate with the Client Components. By connecting a Client Component with the SaaS Services, Client hereby grants to Provider the right, and is expressly instructing Provider, to access and interoperate with that Client Component solely to provide and support the SaaS Services. Client is responsible for ensuring that the access, use, and interoperation of Client Components with the SaaS Services complies with all terms, policies and licenses applicable to the Client Components and associated data and the Connections (collectively, “Client Component Terms”).
3. Data Usage and Analytics.
  1. Client authorizes Provider to use information about Client’s configuration and use of the SaaS Services (“Usage Data”), Client Data, and account information to:
    1. manage Client’s account, including to calculate fees;
    2. provide and improve the SaaS Services and Support; and
    3. provide insights, service and feature announcements, and other reporting.
  2. Aggregated and Anonymized Data. Client agrees that Provider may use, process, and store aggregated and/or anonymized Client Data and Usage Data (“Aggregated Data”) for any business purpose during or after the term of this Agreement, including without limitation to:
    1. Develop and improve Provider’s products and services;
    2. Create and train artificial intelligence and machine learning models;
    3. Create and distribute industry benchmarks, statistics, research, reports, and other analytics;
    4. Monitor and enhance the performance, functionality, and usage of the SaaS Services; and
    5. Monitor and enforce compliance with this Agreement.
  3. Provider will implement appropriate technical and organizational measures to ensure that Aggregated Data cannot reasonably be used to identify Client or any individual person. Provider’s processing of Usage Data, Client Data, and Aggregated Data shall at all times be subject to Provider’s obligations under this Agreement, including those of security and confidentiality.
4. Security Measures. Provider shall implement and maintain an Information Security Program that includes appropriate Administrative Controls, Technical Controls, and Physical Controls to protect Client’s Confidential Information and any personal data processed by Provider on behalf of Client in accordance with industry standards and best practices. Provider’s Information Security Program shall include, at a minimum:
  1. Reasonable restrictions on access to Client Data, including through appropriate Technical Controls and Administrative Controls;
  2. Appropriate measures to address secure authentication protocols and secure access control mechanisms;
  3. The encryption of sensitive Client Data at rest and in transit using industry-standard encryption technologies;
  4. Firewall protection and regular testing of security systems, controls, and procedures;
  5. Regular backups of Client Data; and
  6. Prompt patching of security vulnerabilities.
    
    Provider maintains a comprehensive security program that includes, but is not limited to: regular security assessments, vulnerability management, encryption of sensitive data, access controls, employee security training, incident response procedures, and business continuity planning. Provider is committed to obtaining industry-standard security certifications as its business matures and will notify Client when such certifications are achieved.
5. Security Assessments. Upon Client’s reasonable request, but not more than once annually, Provider shall make available to Client a summary of its security measures. Provider may also make available third-party security certifications or audit results to demonstrate compliance with this Section.
6. Security Incident. Provider shall promptly notify Client of any actual or reasonably suspected unauthorized access to, acquisition of, or disclosure of Client’s Confidential Information or any personal data processed by Provider on Client’s behalf (a “Security Incident”). Provider shall:
  1. Take immediate steps to identify, contain, and remediate the Security Incident;
  2. Provide Client with details about the Security Incident, including the type of data affected, the individuals affected, and the steps Provider is taking to address the Security Incident;
  3. Cooperate with Client in investigating the Security Incident; and
  4. Take reasonable steps to remediate the effects of the Security Incident and prevent its recurrence.
7. Client Data. As between the Parties, Client retains all right, title, and interest in and to all data, information, and content provided by or on behalf of Client or collected by Provider through Client’s use of the SaaS Services (“Client Data”). Client hereby grants Provider a license to process, store, and use Client Data solely to the extent necessary to provide the SaaS Services, perform the Services, and meet Provider’s obligations under this Agreement.
8. Data Retention and Deletion.
  1. During Agreement Term. During the term of this Agreement:
    1. Provider stores Client’s timeseries data that Client transmits to the SaaS Services;
    2. Provider may, at its discretion and as described in the Documentation, implement data retention policies that include aggregating older data at reduced granularity (e.g., converting minute-level data to hourly or daily summaries after certain time periods);
    3. Client acknowledges that as data ages, it may only be available in aggregated form with reduced granularity;
    4. Client may export available Client Data using the standard export features of the SaaS Services as described in the Documentation.
  2. Upon Termination. Upon termination or expiration of this Agreement or the applicable Statement of Work or Order Form:
    1. Provider will retain Client Data in the same state and granularity as it existed at termination for thirty (30) days after the effective date of termination (the “Data Retention Period”);
    2. During the Data Retention Period, Client may request in writing that Provider provide a copy of available Client Data in a standard export format determined by Provider;
    3. Provider may charge a reasonable fee for data export services that require substantial Provider resources or that generate unusually large data sets;
    4. At the end of the Data Retention Period, Provider will have no obligation to maintain or provide any Client Data and may, unless legally prohibited, delete all Client Data in its systems or otherwise in its possession or under its control.
  3. Data Retention Exceptions. Notwithstanding the foregoing, Provider may retain Client Data:
    1. As required by applicable law;
    2. As necessary for Provider’s legitimate business purposes (e.g., for accounting purposes or to enforce Provider’s rights under this Agreement); and
    3. In aggregated or anonymized form in accordance with Section 10.3.
9. Prohibition on Sensitive Information.
  1. Unless explicitly authorized in a separate written agreement between the parties, Client shall not use the SaaS Services to collect, store, process, or transmit any Sensitive Information. “Sensitive Information” means:
    1. Protected Health Information (as defined in HIPAA);
    2. Cardholder data or sensitive authentication data (as defined in the Payment Card Industry Data Security Standard);
    3. Special categories of personal data (as defined in the GDPR), including data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data, data concerning health, or data concerning a person’s sex life or sexual orientation;
    4. Social security numbers, driver’s license numbers, passport numbers, or other government-issued identification numbers;
    5. Financial account information, except for limited payment information used solely for billing purposes;
    6. Any information pertaining to children under the age of 13; or
    7. Any other information subject to specialized security requirements under applicable laws or regulations.
  2. Provider reserves the right to delete any Sensitive Information discovered in the SaaS Services without notice to Client. Client shall indemnify and hold harmless Provider from all claims, costs, damages, and expenses relating to Client’s breach of this Section 10.9.
Client Obligations.
1. Acceptable Use. Client shall:
  1. be responsible for its users’ compliance with this Agreement;
  2. be solely responsible for the accuracy, quality, integrity, and legality of Client Data and the means by which Client acquired Client Data;
  3. use commercially reasonable efforts to prevent unauthorized access to or use of the SaaS Services, and notify Provider promptly of any such unauthorized access or use; and
  4. use the SaaS Services only in accordance with the Documentation and applicable laws and regulations.
2. Usage Restrictions. Client shall not:
  1. make the SaaS Services available to anyone other than its authorized users;
  2. sell, resell, license, sublicense, distribute, rent, or lease the SaaS Services;
  3. use the SaaS Services to store or transmit material that is infringing, libelous, or otherwise unlawful or tortious, or that violates the privacy or publicity rights of any third party;
  4. use the SaaS Services to store or transmit malicious code;
  5. interfere with or disrupt the integrity or performance of the SaaS Services;
  6. attempt to gain unauthorized access to the SaaS Services or their related systems or networks;
  7. permit direct or indirect access to or use of the SaaS Services in a way that circumvents usage limits or quotas;
  8. copy, modify, or create derivative works of the SaaS Services or any part, feature, function, or user interface thereof; or
  9. reverse engineer, disassemble, or decompile the SaaS Services or access the SaaS Services in order to build a competitive product or service.
3. Customer Environment.
  1. Client is solely responsible for procuring, configuring, and maintaining all hardware, software, communications equipment, and network services needed to access and use the SaaS Services, including but not limited to client-side systems, databases, network connectivity, and operating system configurations.
  2. Configuration Responsibilities. Client is solely responsible for:
    1. Configuring its network, firewall, operating system, web browser, and other software to work properly with the SaaS Services;
    2. Ensuring its environment meets or exceeds the minimum requirements specified in the Documentation;
    3. Implementing and maintaining appropriate security measures to protect its systems and data;
    4. Implementing backup procedures to prevent data loss in the event of a failure of the SaaS Services or Client’s environment;
    5. Testing any updates or changes to its environment prior to implementation in production; and
    6. Promptly installing security patches and updates to its environment.
  3. Provider is not responsible for delays, delivery failures, security issues, or other damage resulting from problems in Client’s environment or compatibility issues between Client’s environment and the SaaS Services.
4. Third-Party Integrations.
  1. The SaaS Services may contain features designed to interoperate with third-party services, applications, or platforms (“Third-Party Services”). To use such features, Client may need to obtain access to such Third-Party Services and may be required to grant Provider access to Client’s account(s) on the Third-Party Services.
  2. If Client uses any Third-Party Services with the SaaS Services, Client acknowledges and agrees that:
    1. Provider is not responsible for the operation, availability, or security of any Third-Party Services;
    2. Third-Party Services may cease to operate, change functionality, or modify their terms of service at any time without notice;
    3. If a third-party provider ceases to make its Third-Party Service available for interoperation with the SaaS Services on reasonable terms, Provider may cease providing the corresponding SaaS Services feature without entitling Client to any refund, credit, or other compensation;
    4. Client’s use of Third-Party Services is subject to separate terms and conditions between Client and the third-party provider;
    5. Client is solely responsible for evaluating the security and compliance implications of using any Third-Party Services with the SaaS Services; and
    6. Provider is not responsible for any disclosure, modification, or deletion of Client Data resulting from Client’s use of Third-Party Services.
  3. Provider does not guarantee the continued availability of any integrations between the SaaS Services and Third-Party Services and may modify or discontinue such integrations at any time without notice. Provider will use commercially reasonable efforts to notify Client of material changes to supported integrations.
5. User Management. Client is responsible for:
  1. maintaining the confidentiality of all usernames, passwords, and other access credentials for the SaaS Services;
  2. all activities that occur under Client’s user accounts;
  3. ensuring that users comply with all terms and conditions of this Agreement;
  4. promptly notifying Provider of any unauthorized access to or use of Client’s accounts;
  5. assigning appropriate access levels and permissions to each user; and
  6. promptly deactivating user accounts when users no longer require access or leave Client’s organization. Client acknowledges that sharing of user accounts between multiple individuals is prohibited. Provider reserves the right to suspend individual user accounts if Provider reasonably believes such accounts have been compromised or are being used in violation of this Agreement.
6. Compliance with Laws.
  1. Client shall comply with all applicable laws and regulations in connection with its use of the SaaS Services, including but not limited to:
    1. Data protection and privacy laws;
    2. Consumer protection laws;
    3. Industry-specific regulations applicable to Client’s business;
    4. Export control laws; and
    5. Laws regarding intellectual property rights.
  2. Data Compliance. Client acknowledges and agrees that:
    1. Client is solely responsible for determining whether the SaaS Services are appropriate for Client’s compliance needs;
    2. Client is solely responsible for ensuring that its use of the SaaS Services and all Client Data complies with applicable laws and regulations;
    3. Client is solely responsible for providing any required notices to data subjects and obtaining any required consents related to its use of the SaaS Services and processing of data;
    4. Provider is not responsible for advising Client on compliance with laws or regulations applicable to Client’s business; and
    5. The SaaS Services are not designed or intended for use in high-risk activities where failure could lead to death, personal injury, or environmental damage.
  3. If Provider reasonably believes that Client is using the SaaS Services in violation of applicable law, Provider may suspend Client’s access to the SaaS Services until the violation is remedied.
7. Third-Party Access.
  1. Client may authorize third-party service providers (such as contractors, consultants, or outsourced service providers) to access and use the SaaS Services on Client’s behalf (“Service Providers”), provided that
    1. Service Providers use the SaaS Services solely for Client’s benefit and internal business purposes;
    2. Client ensures that Service Providers comply with all terms and conditions of this Agreement as if they were Client;
    3. Client remains fully responsible and liable for all acts and omissions of Service Providers as if they were Client’s own acts and omissions;
    4. Client promptly terminates access for any Service Provider that violates the terms of this Agreement or no longer requires access;
    5. Service Providers have no right to access or use the SaaS Services after their engagement with Client ends; and
    6. Client maintains a current list of all Service Providers with access to the SaaS Services and provides this list to Provider upon request.
  2. Provider reserves the right to revoke or condition any Service Provider’s access to the SaaS Services if Provider reasonably believes such Service Provider has violated or is likely to violate the terms of this Agreement.
  3. Applicable Agreement Provisions. Without limiting Client’s obligation to ensure Service Providers comply with all terms of this Agreement, the following sections specifically apply to and must be enforced against Service Providers:
    1. Section 5 (Intellectual Property);
    2. Section 6 (Confidentiality);
    3. Section 10 (Data Protection and Security);
    4. Section 11.1 (Acceptable Use);
    5. Section 11.2 (Usage Restrictions);
    6. Section 11.3 (Customer Environment); and
    7. Section 11.6 (Compliance with Laws).
      
      Client shall ensure that its agreements with Service Providers include provisions at least as protective of Provider’s rights and interests as the sections listed above.
Dispute Resolution.
1. Informal Resolution. The Parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives who have authority to settle the dispute.
2. Mediation. If the dispute has not been resolved within thirty (30) days after the commencement of such negotiation, either Party may initiate mediation by providing written notice to the other Party. The Parties shall cooperate in selecting a mediator and scheduling the mediation, which shall be held within sixty (60) days after the notice of mediation.
3. Litigation. If the dispute has not been resolved within thirty (30) days after the commencement of mediation, or if either Party refuses to participate in mediation, either Party may initiate litigation in a court of competent jurisdiction.
4. Continued Performance. During the pendency of any dispute, the Parties shall continue to perform their respective obligations under this Agreement to the extent such obligations are not the subject of the dispute.
General Provisions.
1. 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.
2. Notices.
  1. Legal Notices. All legal notices under this Agreement (including notices related to termination, breach, indemnification, or modification of the Agreement) shall be in writing and shall be deemed given upon
    1. personal delivery;
    2. when received by the addressee if sent by a nationally recognized overnight courier (receipt requested);
    3. when received by the addressee if sent by e-mail to the designated legal notice email address (with confirmation of transmission); or
    4. the third business day after the date of mailing if sent by certified or registered mail, return receipt requested.
  2. Operational Communications. All operational communications (including those related to service updates, maintenance notifications, support requests, and invoicing) may be delivered by email, through Provider’s customer portal, or via other electronic means to the relevant business contacts.
  3. Contact Information. Legal notices to Provider shall be sent to the address set forth in the preamble, Attention: Legal Department, or by email to legal@beakpointinsights.com, or to such other address as Provider may specify in writing. Legal notices to Client shall be sent to the address and contact provided by Client in connection with its account or as specified in the applicable Order Form or Statement of Work. Each party shall ensure that its contact information remains current at all times.
  4. Specific Contact Channels. Unless otherwise specified in an Order Form or on Provider’s website, the following contact channels shall be used for specific types of communications:
    1. Support requests: support@beakpointinsights.com
    2. Billing and invoice inquiries: billing@beakpointinsights.com
    3. Security incidents or vulnerabilities: security@beakpointinsights.com
    4. Data protection or privacy matters: privacy@beakpointinsights.com
    5. Sales and account management: sales@beakpointinsights.com
      
      Provider may update these contact channels by providing notice to Client or by updating the information on Provider’s website.
  5. Electronic Platform Notices. Client agrees that Provider may provide certain notices and communications (including those related to service updates, maintenance notifications, changes to the SaaS Services, and updates to this Agreement) through the SaaS Services user interface, admin console, or customer portal (“Platform Notifications”). Platform Notifications shall be deemed received when posted or displayed in the SaaS Services or when sent by email to administrators or users associated with Client’s account. Client is responsible for ensuring that its administrators regularly access and review the SaaS Services and their designated email accounts. Client acknowledges that certain Platform Notifications may require acknowledgment or action within specified timeframes, and failure to do so may result in service limitations or other consequences as specified in the notification.
3. Assignment.
  1. General Prohibition. Neither party may assign this Agreement without the prior written consent of the other party, except that either party may assign this Agreement without consent in connection with a merger, acquisition, or sale of all or substantially all of its assets. Any attempted assignment in violation of this Section shall be void.
  2. Permitted Assignments. Notwithstanding the foregoing:
    1. Provider may, without Client’s consent, assign its rights to receive payment under this Agreement to a third party or grant a security interest in such payment rights to a financial institution; and
    2. Provider may assign this Agreement to an Affiliate without Client’s consent, provided that Provider remains liable for its obligations under this Agreement.
  3. If Client is notified of an assignment of Provider’s payment rights, Client shall make the assigned payments as directed in the notice.
  4. Notice of Assignment. Any permitted assignment under this Section 13.3 shall be effective upon the assigning party providing written notice to the other party within thirty (30) days after the assignment. The notice shall include the identity of the assignee and the effective date of the assignment. Failure to provide notice shall not invalidate the assignment but may be considered a breach of this Agreement.
4. Subcontractors. Provider may use subcontractors to perform the Services, provided that Provider shall remain fully responsible for the acts and omissions of its subcontractors and shall ensure that all subcontractors comply with the terms of this Agreement.
5. Force Majeure.
  1. Neither party shall be liable for any delay or failure to perform its obligations under this Agreement (except for payment obligations) to the extent such delay or failure is caused by circumstances beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, war, or government action.
  2. Notice of Force Majeure. The party experiencing a force majeure event shall provide written notice to the other party as soon as reasonably practicable, but no later than ten (10) business days after becoming aware of the event. The notice shall include:
    1. A description of the force majeure event;
    2. The expected duration of the disruption, if known;
    3. The obligations that cannot be performed due to the event; and
    4. The steps being taken to mitigate the impact of the event.
  3. The party experiencing a force majeure event shall keep the other party regularly informed about the situation and shall use reasonable efforts to resume performance as soon as practicable.
  4. Maximum Duration. If a party’s performance is delayed or prevented for more than sixty (60) consecutive days due to a force majeure event, the other party may terminate the affected Statement of Work, Order Form, or this Agreement upon written notice. In the event of such termination:
    1. Client shall pay Provider for all Services performed and SaaS Services provided up to the date of termination;
    2. Client shall be entitled to a pro-rata refund of any prepaid fees for SaaS Services not provided due to the termination; and
    3. Neither party shall have any further liability to the other with respect to the terminated Statement of Work, Order Form, or Agreement, except as otherwise provided in Section 3.6 (Effect of Termination).
6. Waiver and Modification. No waiver or modification of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced. No failure or delay by either party in exercising any right under this Agreement shall operate as a waiver of such right.
7. Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall continue in full force and effect, and the invalid or unenforceable provision shall be reformed to the extent necessary to make it valid and enforceable while preserving its intent.
8. Entire Agreement. This Agreement, including all Statements of Work and Order Forms, constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and communications, whether written or oral.
9. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
10. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, without giving effect to any choice of law or conflict of law provisions.
11. Venue. The Parties consent to the exclusive jurisdiction and venue of the state and federal courts located in Winston-Salem, North Carolina for any action arising out of or relating to this Agreement.
12. Publicity.
  1. Neither party shall use the other party’s name, logo, or trademarks, or issue any press release or public statement regarding this Agreement, without the other party’s prior written consent, except that Provider may identify Client as a customer in its customer lists and marketing materials with Client’s prior written approval.
  2. If Client provides such approval and later wishes Provider to cease using Client’s name, logo, or reference, Client may submit a written request to Provider. Provider shall cease using Client’s name or logo in any new materials within thirty (30) days of receiving such request and shall remove Client references from Provider’s website within fifteen (15) days. Provider may continue to use materials created prior to receiving the request until those materials are depleted or for up to ninety (90) days, whichever occurs first.
  3. Notwithstanding the foregoing, either party may accurately reference the existence of the business relationship between the parties in communications with third parties, including required regulatory filings, without the need for prior written consent.
  4. Default Reference Permission. Unless Client opts out in writing at the time of executing this Agreement or an Order Form, Client grants Provider permission to use Client’s name and logo for identification as a customer on Provider’s website, in investor presentations, and in customer lists. This permission does not extend to case studies, testimonials, endorsements, or detailed descriptions of Client’s use of the SaaS Services, which require separate written approval. Client may withdraw this permission at any time following the process in Section 13.12(b).
13. Export Compliance. Each party shall comply with all applicable export control laws and regulations in providing and using the SaaS Services and performing the Services.
14. U.S. Government Rights. The SaaS Services and Deliverables are “commercial items” as defined in Federal Acquisition Regulation (“FAR”) 2.101. If the SaaS Services and Deliverables are acquired by or on behalf of any agency or department of the U.S. Government, the U.S. Government’s rights in the SaaS Services and Deliverables shall be only those set forth in this Agreement.
15. Survival. The provisions of Sections 5 (Intellectual Property), 6 (Confidentiality), 7 (Representations and Warranties), 8 (Limitation of Liability), 9 (Indemnification), 10 (Data Protection and Security), and 13 (General Provisions) shall survive termination or expiration of this Agreement.
16. Anti-Corruption. Each party represents and warrants that it has not and will not, directly or indirectly, offer, pay, promise to pay, or authorize the payment of any money, gift, or anything of value to any governmental official, political party, or candidate for political office for the purpose of influencing any act or decision of such person in their official capacity in violation of applicable anti-corruption laws, including but not limited to the U.S. Foreign Corrupt Practices Act and the UK Bribery Act. Each party will maintain systems of internal controls to comply with applicable anti-corruption laws.
Acceptance.
1. Electronic Acceptance. This Agreement may be accepted electronically by clicking a box indicating acceptance, by executing an Order Form that references this Agreement, or by using any of the Services or SaaS Services. In each case, such acceptance will constitute your agreement to the terms and conditions of this Agreement.
2. Authority. If you are accepting on behalf of your employer or another entity, you represent and warrant that:
  1. you have full legal authority to bind your employer or such entity to this Agreement;
  2. you have read and understand this Agreement; and
  3. you agree, on behalf of your employer or such entity, to this Agreement.