SOC 2 Compliant
HIPAA Compliant
These Terms of Service, together with the terms in any Order Forms you may execute, and any additional agreements, schedules, exhibits or other terms referred to herein or in an Order Form (collectively, the “Terms”) govern your access to and use of the Service (defined below) provided by Friction Free Dental, Inc. a Massachusetts corporation with its principal place of business at 25 Northern Avenue, Unit 1519, Boston, MA 02210 (“FFD”)\ (“FFD”, “we” or “our”).
BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) ACCESSING OR USING FFD’S SERVICE, (3) CREATING OR ACCESSING AN ACCOUNT ON FFD’S WEBSITE OR APP OR (4) EXECUTING AN ORDER FORM, YOU ACCEPT AND AGREE TO THESE TERMS. IF YOU ARE ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “YOU” OR “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU LACK SUCH AUTHORITY, OR DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE SERVICE.
Because the Service is always changing, we may need to revise these Terms at any time. We will always revise the “Last updated” date above to reflect the current Terms. If we materially change these Terms, we will provide you with reasonable advance notice, such as by sending an email notification and/or providing notice through the Service. By continuing to access or use the Service, you confirm your acceptance of the revised Terms and all of the terms incorporated herein by reference.
1.1 "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with a party hereto. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 “Authorized Users” means collectively Customer's Affiliates and Customer Users authorized by Customer to use and access the Service in accordance with the terms and conditions of this Agreement, including, without limitation, Customer Affiliates and their respective employees, consultants, contractors or third party service providers, outsourcers, carriers, professional advisors and agents, for whom subscriptions to the Service have been ordered, and who have been supplied user identifications and passwords by Customer (or by FFD at Customer's request).
1.3 “Content” means information made available to Customer through the Service.
1.4 “Customer Data” means all data and/or information provided to FFD by the Customer and/or Customer's Authorized Users through its and/or their use of the Service, but does not include any Personal Information. For clarity, Customer Data does not include any Content.
1.5 "Customer User" means individuals within Customer's organization (including any Customer Site), including employees and/or contractors, who are authorized by Customer to use the Service, for whom subscriptions to the Service have been ordered, and who have been supplied user identifications and passwords by Customer (or by FFD at Customer's request).
1.6 "Customer Site" means each separate geographic location where Customer maintains an office.
1.7 “Documentation” means the instructional and operational manuals for the Software/Platform, and all improvements, additions, corrections and modifications thereto.
1.8 "FFD IP" means FFD's trademarks and/or service marks, certain documents, software and other works of authorship, other technology (including without limitation any interfaces utilized to connect to the Service), hardware, products, processes, algorithms, user interfaces, FFD's application programming interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information, and any other data, information and/or material provided by FFD to Customer in the course of Customer's access to and use of the Service, including without limitation all derivatives, modifications, improvements, enhancements, releases and/or updates thereof.
1.9 “Malicious Code” means, by way of example and not limitation, any key, node, lock, time-out (other than for password security purposes), backdoor, booby trap, trapdoor, Trojan horse, data-scrambling device (other than industry-approved encryption), virus, worm, time bomb, or any other program or code that allows unauthorized access to or interference with hardware or software of the other party.
1.10 “Order Form” means the documents for placing orders hereunder, including addenda thereto, that are entered into between you and FFD from time to time, including addenda and supplements thereto and that incorporates these Terms. Order Forms shall be deemed incorporated herein by reference.
1.11 “Personal Information” means any information relating to an identified or identifiable natural person, or as may otherwise be defined as “personal information” or “personal data” under applicable privacy laws, including without limitation any protected health information (including electronic protected health information), as defined under HIPAA ("PHI").
1.12 "Service” means the service by which the Software/Platform and Customer Data hosted or stored on servers or other equipment of FFD or FFD’s third-party hardware host (a “Third Party Host”) are made available through the Internet for use by the Customer. For purposes of this Agreement all references to the Service include both hardware and other devices owned or controlled either by FFD or a Third Party Host.
1.13 “Software/Platform” means the computer programs listed on the applicable Order Form made available to Customer in only machine readable object code, Documentation, FFD IP and technological know-how embodied in or relating to such programs, and all derivatives, enhancements, updates, releases, improvements, additions, corrections and/or modifications thereto.
1.14 “Subscription Term” means the term set forth in an Order Form.
1.15 “Update” means any update to the Service occurring in the ordinary course of FFD’s business that is made generally available to third-party FFD customers of such Service.
1.16 “Usage Data” means any data and information created by virtue of Customer’s use of the Service or as derived in non-identifying, aggregate form from the processing of Customer Data. For clarity, Usage Data does not include any Personal Information.
2.1 License Grant. Upon entering these Terms and subject to and conditioned on Customer's and its Authorized Users' compliance with these Terms, FFD hereby grants to Customer a limited, non-assignable, non-exclusive, non-transferable, and non-sublicensable license during the Subscription Term, to access and use, and to allow its Authorized Users to access and use, the Software/Platform and Documentation only through the Service, including the Content thereon, upon the terms and conditions stated herein solely for Customer's internal business purposes, and not for any redistribution.
2.2 Customer's License. Customer hereby grants to FFD a non-exclusive, non-transferable license to use, upload, display, distribute, copy and store all Customer Data provided to FFD hereunder for storage and access through the Service pursuant to this Agreement and perform all acts with respect to the Customer Data as may be necessary for FFD and its subcontractors to provide the Service to Customer. Customer agrees that it shall have sole responsibility and liability for:
(a) acquiring any and all authorization and consents necessary for use of Customer Data as contemplated by this Agreement;
(b) the completeness and accuracy of all Customer Data and other materials provided to FFD by Customer pursuant to this Agreement; and
(c) ensuring that Customer Data does not infringe, violate or misappropriate any patents, copyrights, trademarks, trade secrets, or any other intellectual property rights or proprietary rights of any third party.
Customer shall retain ownership of Customer Data at all times.
2.3 Provision of the Service. During the Subscription Term, FFD will:
(A) make the Service and Content available to Customer pursuant to these Terms and any applicable Order Form in accordance with all U.S. law generally applicable to FFD’s provision of its Service to its customers (i.e., without regard for Customer’s particular use of the Service);
(B) provide standard support for the Service to Customer through the Service at no additional charge and/or upgraded support if purchased separately;
(C) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which FFD will use its commercially reasonable efforts to provide advance notice), or (ii) any unavailability or outage caused by a Force Majeure Event (as defined below). Customer acknowledges and agrees that any and all Updates made to the Service by FFD must be implemented by Customer.
(D) Customer agrees that Customer's utilization of the Service hereunder is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by FFD regarding future functionality or features. The Service is purchased as an Authorized User subscription and may be accessed by Authorized Users only for Customer's internal business operations.
2.4 Protection of Customer Data.
(A) No Personal Information. You acknowledge and agree that, in providing the Service, FFD may receive or be given access to Customer Data from you. You acknowledge that the Service is not intended to receive or process any third-party Personal Information (except, for clarity, as related to Authorized Users). You agree not to provide or process any third-party Personal Information through the Service. Each party agrees to promptly inform the other if it discovers any third-party Personal Information among your Customer Data. Customer agrees that it will use the Service and/or the Software/Platform only for lawful purposes. Customer acknowledges that FFD exercises no control whatsoever over the Customer Data entered by the Customer, and/or any Authorized User, into the Service and that it is the sole responsibility of Customer to ensure that the Customer Data that Customer and/or any Authorized User transmits and/or receives through the Service complies with all applicable laws, including without limitation the Health Insurance Portability and Accountability Act of 1996 as amended by the American Recovery and Investment Act of 2009 (“HIPAA”), and that no Customer Data contains any third-party Personal Information. Customer agrees to defend, indemnify and hold FFD harmless from and against any and all loss, expense or liability (including reasonable attorneys’ fees) awarded against, or incurred by FFD, as a consequence of Customer’s failure to comply with any such laws or regulations and/or transmittal of any third-party Personal Information within any Customer Data and/or utilization of any third-party Personal Information with the Service.
(B) Right to Provide. By providing Customer Data to FFD, you represent and warrant that you have the right to provide such Customer Data for the uses set forth herein and that no Customer Data contains any third-party Personal Information. You further agree that no Customer Data violates the privacy rights of any individual or intellectual property rights of any third party. Without limiting the foregoing, you represent and warrant the use of the Customer Data as permitted under these Terms will comply with all applicable laws and any privacy policies applicable to the Customer Data by virtue of its provenance.
(C) Protection; Compliance with Laws. All collection, use, and processing of Customer Data will comply with all applicable U.S. laws, rules and regulations. FFD shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data; however, you acknowledge that no security measures involving transmission of Internet-accessible data are completely secure. FFD shall not (a) disclose Customer Data except as compelled by law or as expressly permitted in writing by you, or (b) access Customer Data except to provide the Service and prevent or address service or technical problems, or at your request in connection with customer support matters.
(D) Services Improvement. You agree that FFD may use Customer Data in aggregated form for the purpose of general statistical analysis, improvement of the Service, and to create reports, studies, analyses and other work product (however, FFD shall not distribute any such aggregated data in a manner identifiable as originating from the Customer Data without your prior written consent). You acknowledge that the Service creates, and processes Usage Data and you agree that FFD may use Usage Data for any purpose.
3.1 Subscriptions. Unless otherwise provided in these Terms or subsequently agreed to by the parties in writing, (a) the Service and access to Content is a subscription for the Subscription Term and (b) additional subscriptions for the Service may be added during a Subscription Term through a new schedule to an Order Form at FFD’s standard pricing for such additional subscriptions. For purposes of clarification, Customer's organization shall only include those Affiliates and/or business units of Customer identified in an Order Form and shall not include any Affiliates and/or business units resulting from merger and/or acquisition; additional subscriptions for Affiliates and/or business units resulting from merger and/or acquisition may be added during the applicable subscription term, at pricing mutually agreed to by the parties, and such added Affiliate and/or business unit subscriptions shall terminate on the same date as the pre-existing subscriptions.
3.2 Additional Services. FFD will provide professional services ordered by you in accordance with FFD's then-current price list and pursuant to a statement of work entered into between you and FFD; any such statement of work to be set forth and made a part of the pertinent Order Form. FFD will provide professional services in a professional manner in accordance with applicable industry standards and will use reasonable efforts to complete such services in accordance with the schedule set forth in an Order Form, subject to your performance of your responsibilities and except as prevented by acts or occurrences beyond FFD's control. You will cooperate with FFD and will provide FFD such assistance as FFD may reasonably request in relation to any professional services. You will provide FFD accurate and complete information necessary for the implementation of any professional services. During the course of performance of any professional services hereunder, you agree to notify the FFD project manager of any problem, deficiency or dissatisfaction with respect to such services. You shall so notify the FFD project manager as soon as any such problem, deficiency or dissatisfaction is suspected or perceived by you. These Terms will govern your use of any enhancements, data, and information provided by FFD in the course of providing any technical, installation, training or professional services. Any ideas, know-how, techniques, developments and software which may be developed by FFD, including any enhancements or modifications made to the Service, shall be the exclusive property of FFD. FFD provides professional services and products to other customers that are similar to the professional services FFD may provide to you. Nothing in this Agreement is intended or should be interpreted to prevent or inhibit FFD from continuing or commencing to provide such services.
3.3 Customer Responsibilities. Customer shall (i) be responsible for each of Customer's Authorized Users’ compliance with these Terms, (ii) be responsible for the accuracy, quality and legality of Customer Data and of the means by which Customer acquired Customer Data, (iii) cooperate with FFD and will provide FFD such assistance as FFD may reasonably request in relation to the transfer of Customer Data to the Service, (iv) provide FFD timely, accurate and complete information necessary for the implementation of Customer Data with the Service, (v) use commercially reasonable efforts to prevent unauthorized access to or use of the Service and/or the Software/Platform, and notify FFD promptly of any such unauthorized access or use, and (vi) use the Service, Content and/or the Software/Platform only in accordance with the Documentation, these Terms and applicable laws and government regulations. Customer shall not (a) make the Service and/or the Software/Platform available to anyone other than Authorized Users and/or allow the Service to be utilized outside of the scope of use set forth in an Order Form, (b) sell, resell, rent or lease the Service and/or the Software/Platform, (c) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, or (f) attempt to gain unauthorized access to the Service or its related systems and/or networks. In addition to the foregoing, Customer agrees that (1) access to or use of the Service and/or the Software/Platform by any Authorized User is subject to the terms and conditions of these Terms, including, without limitation, the restrictions set forth hereunder, (2) any claim, demand or right of action arising from an Authorized User’s use of the Service and/or the Software/Platform shall be brought against Customer and not FFD and (3) Customer will remain directly liable and responsible to FFD and its licensors for any violation by Customer and/or Authorized Users of these Terms, and Customer shall indemnify and hold harmless FFD and its licensors and their respective officers, directors, employees and agents, from and against any and all claims, demands, costs and liabilities (including all reasonable attorneys' fees) arising out of or related to any representation, action or omission by any Authorized User inconsistent with the terms and conditions of this Agreement. Any use of the Service and/or the Software/Platform in breach of the foregoing by Customer and/or any Authorized Users that in FFD’s judgment threatens the security, integrity, or availability of FFD’s Service, may result in FFD’s immediate suspension of the Service. However, FFD will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
4.1 Fees. Customer will pay all fees described in any Order Form in accordance with the terms of the Order Form (“Fees”). Except as otherwise specified in these Terms or in an Order Form, (i) all fees are quoted in United States Dollars. (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and all Fees paid are non-refundable, and (iv) the number of subscriptions purchased cannot be decreased during the relevant Subscription Term stated on the Order Form. Unless otherwise set forth in the pertinent Order Form, subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore to the extent applicable, fees for subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the Subscription Term. Additional subscriptions may also be subject to increased rates, in FFD's sole discretion, based upon on your data sizing increases from your data requirements identified as of your initial order of the Service and/or any increases in pricing from FFD's provider. In the event that Customer disputes any Fees in any invoice, you agree to notify us within twenty (20) days of the receipt of such invoice. If you fail to notify us within such period, you hereby waive your right to dispute such Fees.
4.2 Payment. Customer will maintain with FFD (or its payment processor) valid and updated credit card information or alternative financial or payment documentation or information (for example, bank account information) reasonably acceptable to FFD. Except as otherwise provided in an Order Form, Customer authorizes FFD (or its payment processor) to charge such payment method in advance of Customer’s access or use of the Service. Failure by Customer to provide a purchase/insertion order shall not limit FFD its rights or remedies.
4.3 Overdue Charges. If FFD is unable to effect payment when due using Customer’s payment method, then FFD may, without limiting its rights or remedies, charge Customer for all costs, including collection costs, court costs, and reasonable attorneys’ fees associated with the attempt and/or collection of past due amounts, as well as a monthly late fee equal to 1.5% per month.
4.4 Suspension of Services. In the event any Fees due and owing are 30 or more days overdue, FFD may, after providing notice to Customer, and without limiting any of FFD's other rights and remedies: (i) suspend, terminate, or otherwise deny Customer access to or use of, all or any part of the Service, and (ii) require full payment of the overdue amount, and any other amount due and owing, prior to additional or continued performance by FFD.
4.5 Taxes. FFD’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, accessible by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases or subscriptions hereunder. If FFD has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, FFD will invoice Customer and Customer will pay that amount unless Customer provides FFD with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, FFD is solely responsible for taxes assessable against it based on its income, property and employees.
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, FFD, its Affiliates and its licensors reserve all of their rights, title, and interest in and to the Service, Content and/or the Software/Platform, including all of their related intellectual property rights. No rights are granted to the Customer hereunder other than as expressly set forth herein. Further, any modifications, improvements, extensions, simplifications, updates or enhancements to the Service and/or the Software/Platform suggested, conceived of, designed, prototyped and/or implemented by FFD and/or Customer, including Authorized Users, during the Term of this Agreement shall become the exclusive property of FFD and FFD's Confidential Information. FFD shall have the sole and exclusive right to register copyright of such materials in its own name in any and all countries, to obtain renewals, and to manufacture, reproduce, publish, distribute and sell the same. Notwithstanding anything to the contrary, FFD and its licensors hereby reserve and retain ownership of all FFD IP, all of which shall be deemed FFD's Confidential Information, with all rights and ownership therein, including without limitation all intellectual property rights, remaining solely with FFD.
5.2 License by Customer to Use Feedback. Customer grants to FFD and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Service any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer and/or Authorized Users relating to the operation of the Service.
5.3 Restrictions. Customer shall not use the Service or Documentation for any purposes beyond the scope of the access granted in these Terms and the pertinent Order Form. The Software/Platform shall be used solely in connection with the usual internal business purposes of the Customer. For purposes hereof, “business purposes” shall in no circumstances include the sale or marketing, in any way whatsoever, of any of the FFD Confidential Information (as defined below), including but not limited to the Software/Platform. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) permit any third party to access the Service and/or the Software/Platform except as permitted herein, (ii) create derivate works based on the Service and/or the Software/Platform, (iii) modify, copy, frame or mirror any part or content of the Service, other than copying or framing on Customer's own intranets or otherwise for Customer's own internal business purposes, (iv) reverse engineer the Service and/or the Software/Platform, (v) access the Service and/or the Software/Platform in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Service and/or the Software/Platform, (vi) bypass or breach any security protection used by the Service or access or use the Service other than by an Authorized User through the use of his or her own valid access credentials; (vii) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Service, FFD systems, or FFD’s provision of services to any third party, in whole or in part; (viii) remove any proprietary notices from the Service or Documentation; (ix) conduct any penetration or vulnerability testing on the Service, network or application; or (x) use the Service or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
5.4 Customer Data. Subject to the limited rights granted by you hereunder, FFD acquires no right, title or interest from you or your licensors under these Terms in or to Customer Data, including any intellectual property rights therein.
5.5 Federal Government End Use Provisions. FFD provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in these Terms. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with FFD to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
6.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the contents of any Order Form(s) or other written information specific to Customer’s relationship with FFD. Confidential Information of Customer includes without limitation Customer Data; Confidential Information of FFD includes without limitation the Service, the Content and/or the Software/Platform. Confidential Information of each party includes business and marketing plans, financial data and information, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that the Receiving Party establishes by clear and convincing evidence that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without any utilization of the Disclosing Party's Confidential Information. For clarity, the non-disclosure obligations in this Section 6 apply to Confidential Information exchanged between the parties in connection with any evaluation of the Service. Notwithstanding anything to the contrary, the Software/Platform and all related materials provided by FFD to Customer, and the results of all evaluations and testing of the Software/Platform by Customer, shall constitute Confidential Information of FFD without need for any marking or designation.
6.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its respective Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms and the pertinent Order Form, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit disclosure and access to Confidential Information of the Disclosing Party to those of the Receiving Party and its Affiliates’ employees, professional advisors and contractors who need that access for purposes consistent with these Terms and are bound by confidentiality obligations in favor of the Receiving Party containing protections not materially less protective of the Confidential Information than those herein; this does not include disclosure to FFD's competitors which are specifically excluded. The Receiving Party shall be responsible for any use or disclosure of Confidential Information by any of its, and its Affiliates', employees, professional advisors, contractors and/or agents. Neither party shall disclose the terms of these Terms or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.
6.3 Compelled Disclosure. If a party is compelled by law to disclose Confidential Information of the other party, it shall promptly provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and provide reasonable assistance, at the other party’s cost, if the other party wishes to contest or limit the disclosure.
7.1 Representations. Each party represents that it has validly entered into these Terms and has the legal power to do so. In addition, Customer represents, warrants, and covenants to FFD that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by FFD and processed in accordance with this Agreement, Customer Data (including FFD's possession and use of Customer Data) does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, and/or any privacy or other rights of any third party or violate any applicable law.
7.2 Service Warranties. Subject to the other provisions of this Section 7, FFD warrants that, during the Subscription Term, (a) the Service will perform materially in accordance with any Documentation provided by FFD in writing, and (b) FFD will not materially modify the overall functionality of the Service in a manner that has an adverse effect on the Service. For any breach of a warranty under this Section 7.2, Customer’s exclusive remedies are those described in Section 10.2 (“Termination”) and Section 10.3 (“Payment upon Termination”) below.
7.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, FFD AND ITS AFFILIATES MAKE NO WARRANTIES, EXPRESS OR IMPLIED, GUARANTEES, OR CONDITIONS WITH RESPECT TO THE CUSTOMER’S USE OF THE SERVICE AND/OR ANY PROFESSIONAL SERVICES, INCLUDING ANY WARRANTY THAT THE SERVICE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION, OR THAT ALL ERRORS WILL BE CORRECTED. FFD ALSO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CUSTOMER UNDERSTANDS THAT USE OF THE SERVICE IS AT CUSTOMER’S OWN RISK AND THAT FFD PROVIDES THE SERVICE ON AN “AS IS” BASIS “WITH ALL FAULTS” AND “AS AVAILABLE.”
8.1 Indemnification by Customer. Customer shall defend, indemnify, and hold FFD, its Affiliates, and their officers, directors, employees, successors, agents and representatives, harmless against any loss or damage (including without limitation reasonable attorney’s fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against them by a third party arising out of (i) a breach of Customer’s representations, warranties, covenants and/or agreements herein; (ii) Customer’s intentional misconduct or gross negligence hereunder; (iii) FFD’ use of Customer Data as permitted hereunder; and/or (iv) any representation, action or omission by Customer’s Users, employees, agents and/or subcontractors which is inconsistent with these Terms and/or an Order Form. FFD shall (a) promptly give written notice of the Claim to Customer; (b) give Customer sole control of the defense and settlement of the Claim using counsel reasonably approved by FFD (provided that Customer may not settle or defend any Claim unless it unconditionally releases FFD of all liability without the obligation to take or refrain from any action or pay any amounts); and (c) provide to Customer, at Customer’s cost, all reasonable assistance.
8.2 Indemnification by FFD. FFD shall defend you against any claim, demand, suit, or proceeding made or brought against you by a third party alleging that the use of the Service, as permitted hereunder, infringes or misappropriates the intellectual property rights of a third party (a "Claim Against You"), and shall indemnify you for any damages, reasonable attorney fees and costs finally awarded against you, as a result of, and for amounts paid by you under a court-approved settlement of, a Claim Against You; provided that you (a) promptly give FFD written notice of the Claim Against You; (b) give FFD sole control of the defense and settlement of the Claim Against You (provided that FFD may not settle any Claim Against You unless the settlement unconditionally releases you of all liability); and (c) provide to FFD all reasonable assistance, at FFD's expense. In the event of a Claim Against You, or if FFD reasonably believes the Service may infringe or misappropriate, FFD may in FFD's discretion and at no cost to you (i) modify the Service so that it no longer infringes or misappropriates, without breaching FFD's warranties under Section 7.2 above, (ii) obtain a license for your continued use of the Service in accordance with this Agreement, or (iii) terminate your subscriptions for such Service upon 30 days’ written notice and refund to you any prepaid fees covering the remainder of the term of such subscriptions after the effective date of termination. The foregoing indemnification will not apply to the extent any infringement arises from (1) the Customer’s use of the Service in combination with hardware or software not provided by FFD, (2) any addition to or modification to the Service by any person or entity other than FFD, or (3) the use of other than a new version of the Service which is provided to Customer. THE PROVISIONS OF THIS SECTION 8.2 STATE THE EXCLUSIVE LIABILITY OF FFD AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHT INFRINGEMENT BY THE SERVICE, ANY PART THEREOF OR THE USE THEREOF, AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF NON-INFRINGEMENT.
9.1 Limitation of Liability. EXCEPT FOR SECTIONS 3.3 (CUSTOMER RESPONSIBILITIES) AND/OR 5 (PROPRIETARY RIGHTS) AND/OR 6 (CONFIDENTIALITY) AND/OR ANY INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO A CLAIM. THE FOREGOING SHALL NOT LIMIT IN ANY WAY YOUR PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT).
9.2 Excluded Damages. EXCEPT FOR SECTIONS 3.3 (CUSTOMER RESPONSIBILITIES) AND/OR 5 (PROPRIETARY RIGHTS) AND/OR 6 (CONFIDENTIALITY) AND/OR ANY INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10.1 Term. These Terms commence on the date you accept them and continue until all subscriptions granted in accordance with these Terms and the pertinent Order Form(s) have expired or been terminated. Subscriptions purchased by you commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein.
10.2 Termination for Cause. A party may terminate these Terms for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.3 Payment upon Termination. Upon any termination for any reason, you shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve you of the obligation to pay any fees payable to FFD hereunder. Notwithstanding the foregoing, in the event that these Terms are terminated by you as a result of FFD’s material breach, which material breach is not the subject of a good faith dispute, you shall only pay FFD fees payable to FFD hereunder for services received by you through the applicable date of termination.
10.4 Return of Your Data. Upon written request by you made within 30 days after the effective date of termination of a Service subscription, FFD will make available to you for download a file of Customer Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, FFD shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in FFD systems or otherwise in FFD's possession or under FFD's control.
10.5 Survival. Sections 1, 2.4, 3.3, 4 through 9 and 10.3, 10.4, 10.5, 11 and 12 survive any termination or expiration of these Terms.
You agree that in the event of any dispute between you and FFD, you will first contact FFD and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution.
12.1 Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by verified email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to you shall be addressed to the relevant billing contact designated by you. All other notices to you shall be addressed to the relevant Service system administrator designated by you.
12.2 Marketing. Customer permits FFD to use Customer’s name and logo on the FFD website, along with other customers. Either party may publicize the existence and general nature of the relationship established by these Terms through mutually agreed upon press releases and other marketing collateral.
12.3 Export Compliance. The Service, Content, the Software/Platform, other FFD IP, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. FFD and Customer each represent that it is not named on any U.S. government denied-party list. You shall not permit Authorized Users to access or use the Service in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
12.4 Entire Agreement; Order of Precedence. These Terms, including any Order Form(s) executed hereunder by Customer and FFD (including any Schedules thereto), constitute the entire agreement between FFD and Customer regarding Customer’s use of the Service and Content and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Unless a provision of an Order Form specifically overrides these Terms, these Terms control in the event of any conflict or inconsistency between these Terms and an Order Form. No modification, amendment, or waiver of any provision of these Terms shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of these Terms, and all such terms or conditions shall be null and void.
12.5 Relationship of the Parties. The parties are independent contractors. Neither these Terms nor any Order Form creates a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes. During the performance of any professional services, and for a period of one year after conclusion of such services, both parties agree not to solicit, induce, attempt to hire or hire any employee of the other party, or assist in such hiring by any other person or business entity or encourage any such employee to terminate his or her employment with the other party, without prior written consent of the other party.
12.6 Waiver. No failure or delay by either party in exercising any right (including invoicing) under these Terms will constitute a waiver of that right.
12.7 Severability. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the parties agree that the court should endeavor to give effect, to the maximum extent permitted by law, to the parties’ intentions as reflected in the provision, and the remaining provisions of these Terms will remain in full force and effect.
12.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld, delayed or conditioned); provided, however, either party may assign these Terms (including all Order Forms) in its entirety, without the other party’s consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of the assets of a party or a business division thereof, provided the assignee has agreed to be bound by all of the terms of these Terms. Notwithstanding the foregoing, if a party is acquired by, sells all or substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate these Terms upon written notice. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.9 Governing Law and Jurisdiction. The laws of the Commonwealth of Massachusetts, USA, without regard to principles of conflicts of laws, govern these Terms, any Order Form(s), any incorporated documents, and any other terms and conditions subsequently agreed to by the parties in connection with the Service, and any dispute arising between Customer and FFD. The parties agree that the jurisdiction and venue of any action with respect to this Agreement shall be in a court of competent subject matter jurisdiction located in the Commonwealth of Massachusetts, USA.
12.10 Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to these Terms.
12.11 Force Majeure. If either party to these Terms shall be prevented, hindered or delayed in the performance or observance of any of its obligations hereunder, with the exception of payment obligations, by reason of any act of God, natural disaster, war, riot, civil commotion, explosion, fire, government action, epidemic, pandemic, Internet failure, Internet service provider interruption, failure or other circumstance beyond its reasonable control (a "Force Majeure Event"), then such party shall be excused from further performance or observance of the obligation so affected for as long as such circumstances shall prevail.
12.12 No Third-Party Beneficiaries. There are no third-party beneficiaries to these Terms.
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