1. SERVICES AND SUPPORT
1.1 DemandGen International, Inc. (“DemandGen”) provides its software-as-a-service platform designed to facilitate email marketing and reporting capabilities (collectively “Services”) to you (“Customer”) pursuant to these Terms of Service (this “Agreement”). By entering into a Services-related agreement (“Order Form”) with DemandGen, Customer unconditionally accepts and agrees to all of the terms of this Agreement. By entering into this agreement on behalf of a company or other legal entity, Customer represents that it has the authority to bind such entity and its affiliates to the terms of this Agreement, and, accordingly, the terms “Customer” shall refer to such entity and its affiliates. If Customer does not have such authority, or Customer does not agree to all of the terms of this Agreement, Customer may not use the Services. Subject to the terms of this Agreement, DemandGen will use commercially reasonable efforts to provide Customer (a) the Services in accordance with the terms and limitations of each Order Form and hereby grants Customer a non-exclusive right to access and use the Services during the Term (defined herein), and (b) reasonable support services, through electronic mail or another online mechanism, in accordance with DemandGen’s standard practice.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will only use the Services as expressly permitted herein and in the applicable Order Form and agrees that it will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by DemandGen or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; remove any proprietary notices or labels; or modify, adapt or hack the Services, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks. Customer shall not use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with DemandGen’s provision of the Services.
2.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with all applicable laws and regulations (including, without limitation, those relevant to privacy, spam, intellectual property). Although DemandGen has no obligation to monitor Customer’s use of the Services, DemandGen may do so and may prohibit any use of the Services (or disable content or data) it believes may be (or alleged to be) in violation of the foregoing or any other term of this Agreement.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business and technology (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of DemandGen includes, without limitation, all Software and other non-public information and documentation regarding features, functionality, pricing, and performance of the Services. The Receiving Party agrees: (i) to take at least reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2. As between the parties, Customer Content (as defined below) will be owned by Customer. Customer will be solely responsible for the accuracy, quality, integrity and legality of Customer Content. Customer hereby grants to DemandGen a limited, non-exclusive, worldwide license to use Customer Content solely to provide the Services to Customer. “Customer Content” means any information, text, images, data and other material provided or uploaded directly to DemandGen by Customer or Customer’s end-users in the course of receiving or using Services. DemandGen shall have the right to collect and analyze data and other information relating to the use and performance of various aspects of the Services and related systems and technologies and DemandGen will be free to (i) use such information and data (during and after the term hereof) to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other DemandGen offerings, and (ii) use and disclose such data in aggregate or de-identified form for marketing purposes and otherwise in connection with its business.
3.3 DemandGen shall own and retain all right, title and interest in and to (a) the Services and Software, and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services or support, and (c) all intellectual property rights related to any of the foregoing.
4. PAYMENT OF FEES
4.1 Customer will pay DemandGen the then applicable fees for the Services as described in the relevant Order Form (or in the Services itself, as applicable) in accordance with the terms therein (the “Fees”). All Fees are non-cancelable and non-refundable regardless of any early termination of this Agreement. If Customer’s use of the Services exceeds any applicable limits set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. If use of services exceeds the volume indicated on the initial order form, customer will be notified and billing will proceed to the next closest pricing level based on the adjusted monthly volume. Charges will be adjusted in the applicable month, and will continue at that level until the end of term. Supplemental billing will be provided for the adjusted term based on the original billing terms in the agreement. DemandGen, reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Services Term (defined herein) or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that DemandGen has billed Customer incorrectly, Customer must contact DemandGen no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to DemandGen’s accounting department at firstname.lastname@example.org.
4.2 DemandGen may also choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by DemandGen thirty (30) days after the mail date of the invoice. Unpaid amounts 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 and may result in immediate termination of Services. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on DemandGen’s net income.
5.1 Subject to earlier termination as provided below, this Agreement is for the term of services as specified in the Order Form (the “Term”). 5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and such breach is not cured during the notice period. DemandGen may also reasonably suspend Customer’s and/or any users’ access to Services at any time in its reasonable discretion if it possesses a good faith belief that Customer’s use of the Services may be in violation of this Agreement or otherwise place DemandGen (or its customers or other interests) at risk of harm, damage, loss or liability.
5.3 Upon termination, Customer’s right to use the Services shall immediately terminate, all outstanding Fees due for the Services for the entire Services Term shall immediately become due and payable, and each party shall return to the other all Proprietary Information. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, all rights to payment of Fees, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMERS
6.1 DemandGen shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by DemandGen or by third-party providers, or because of other causes beyond DemandGen’s reasonable control, but DemandGen shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. For breach of the express warranty set forth above, Customer’s exclusive remedy shall be the re-performance of the deficient Services. If DemandGen cannot re-perform such deficient Services as warranted, Customer shall be entitled to recover a pro-rata portion of the fees paid to DemandGen for such deficient Services, and such refund shall be DemandGen’s entire liability and Customer’s sole remedy related thereto.
6.2 DemandGen does not warrant that the Services will be uninterrupted or error free; OR THAT THE QUALITY OF THE, SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT NEITHER DEMANDGEN NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. DEMANDGEN IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND DEMANDGEN AND ITS THIRD PARTY VENDORS AND LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
7.1 DemandGen agrees to indemnify, defend, and hold harmless Customer against any liabilities, damages and costs (including reasonable attorneys’ fees) payable to a third party (“Costs”) arising out of a third party claim (“Claim”) alleging that the Services infringe any third party intellectual property right. DemandGen, at its sole option, shall have sole control of such defense, provided that Customer is entitled to participate in its own defense at its sole expense.
7.2 Customer agrees to indemnify, defend, and hold harmless DemandGen against any Costs arising out of a Claim based on Customer’s breach of this Agreement or that the Customer Content infringes upon or violates the proprietary or intellectual property rights of any third person.
7.3 Each party’s right to indemnification hereunder shall be conditioned upon such party providing the indemnifying party with (i) prompt written notice upon becoming aware of any Claim subject to indemnification hereunder, and (ii) reasonable cooperation in the defense of or investigation of any Claim subject to indemnification hereunder.
7.4 Notwithstanding the foregoing, DemandGen will have no obligation under this section or otherwise with respect to any infringement claim to the extent based upon (i) breach of this Agreement by Customer, (ii) any combination of the Services with other products, equipment, software, uses or data not supplied by DemandGen, (iii) any modification of the Services by any person other than DemandGen or its authorized agents or contractors or (iv) any activity after DemandGen has provided Customer with a work around or modification that would have avoided such issue without materially adversely affecting the functionality or availability of the Services. If DemandGen reasonably believes that all or any portion of the Services, or the use thereof, is likely to become the subject of any infringement claim, suit or proceeding, DemandGen may, at its option procure, at DemandGen’s expense, for Customer the right to continue using the Services in accordance with the terms hereof, replace or modify the allegedly infringing Service to make it non-infringing, or, in the event that neither of the foregoing options are commercially practicable, DemandGen may, in its sole discretion, terminate this Agreement upon written notice to Customer and refund to Customer any prepaid amounts for unused Services.
8. LIMITATION OF LIABILITY
EXCEPT FOR A BREACH OF THE CONFIDENTIALITY PROVISIONS, OR CUSTOMER’S BREACH OF SECTION 2.1 OR 2.2, IN NO EVENT SHALL EITHER PARTY OR THEIR RESPECTIVE SUPPLIERS BE LIABLE with respect to any subject matter relating to this Agreement, under any contract, tort (including negligence), strict liability or other legal or equitable theory, FOR (A) ANY indirect, punitive, incidental, special or consequential damages (including lost profits); (b) any other damages in excess of the total amount paid (and payable) to DEMANDGEN in the twelve (12) month period prior TO the date the CLAIM AROSE; (C) FOR ERRORS OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; OR (D) FOR ANY MATTER BEYOND DEMANDGEN’S REASONABLE CONTROL.
9. GOVERNMENT MATTERS
Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by either party, except with the other party’s prior written consent. Notwithstanding the foregoing, either party may transfer and assign any of its rights and obligations under this Agreement without consent to a successor to, or acquirer of, all or substantially all of the assets of the business to which this Agreement relates. Except to the extent the parties have mutually executed and delivered a separate written agreement covering the same DemandGen Services (a “Separate Signed Agreement”), this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. In the event of a conflict between the terms of this Agreement and the terms of a Separate Signed Agreement, the terms of the Separate Signed Agreement shall supersede and control. However, any different or additional terms of any purchase order, confirmation, or similar pre-printed form will have no force or effect. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind DemandGen in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.