This Subscription Services Agreement (“Agreement”) is between Landbase, Inc. (“Landbase”) and the individual, company, organization, or other entity that accepts this Agreement (“Customer”) by accessing or using the Services (as defined below), executing an ordering document, placing an order or otherwise entering into this Agreement using an online functionality such as clicking a box indicating acceptance, creating an account, or otherwise affirmatively accepting this Agreement. If Customer is a company, organization, or other entity, the individual accepting this Agreement on Customer’s behalf represents and warrants that they have authority to bind Customer to this Agreement. This Agreement is effective as of the date Customer accepts the Agreement as described above (“Effective Date”). This Agreement sets forth the terms pursuant to which Customer will be permitted to access and use the Services (as defined below). If Customer registers for a free trial of the Services, the applicable provisions of this Agreement will also govern that free trial. Capitalized terms have the definitions set forth herein.
The Services may not be accessed for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes. Landbase’s direct competitors are prohibited from accessing the Services, except with Landbase’s prior written consent.
The parties agree as follows:
1. DEFINITIONS
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Terms of Service and any exhibits, schedules and addenda hereto.
“Beta Services” means Landbase services or functionality that may be made available to Customer to try at its option at no additional charge, which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Content” means any information made available by Landbase to Customer through the Services, Beta Services or pursuant to an Order Form, including but not limited to email templates and content, and any prospect data obtained by Landbase from publicly available sources or its third-party content providers.
“Customer Data” means electronic data and information submitted by or for Customer to the Services, excluding Content and Third-Party Services.
“Customer Materials” means materials and resources that Customer makes available to Landbase in connection with Professional Services.
“Documentation” means all specifications, user manuals, and other materials relating to the Services and provided or made available by Landbase to Customer, as may be modified by Landbase from time to time.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Order Form” means an ordering document or online order specifying the Services and/or Professional Services to be provided hereunder that is entered into between Customer and Landbase or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Professional Services” means training, migration or other professional services that Landbase furnishes to Customer related to the Services.
“Purchased Services” means Services that Customer or Customer’s Affiliate purchases under an Order Form or online purchasing portal, as distinguished from Free Services or those provided pursuant to a free trial.
“Services” means Landbase’s prospecting automation products and services that are ordered by Customer under an Order Form or online purchasing portal or provided to Customer free of charge (as applicable) or under a free trial, and made available online by Landbase, including associated Landbase offline or mobile components, if applicable, as may be more fully described in the Documentation. “Services” exclude Professional Services, Content and Third-Party Services.
“Statement of Work” means a statement of work for Professional Services that is executed by the parties and references this Agreement.
“Third Party Service” means Web-based, mobile, offline or other software functionality that interoperates with a Service, that is provided by Customer or a third party. Third-Party Services, other than those obtained or provided by Customer, will be identifiable as such.
“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by Landbase without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, Landbase at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.
2. LANDBASE RESPONSIBILITIES
2.1. Provision of Purchased Services. Landbase will make the Services and Content available to Customer pursuant to this Agreement, and the applicable Order Forms and Documentation.
2.2. Protection of Customer Data. Landbase will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, as may be more fully described in the Documentation. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, Landbase will make Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, Landbase will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
2.3. Personal Data. Any personal information submitted in connection with Customer’s use of the Services is subject to our privacy policy located at Landbase Privacy Policy (“Privacy Policy”). To the extent that any personal data exchanged between the parties under this Agreement is subject to the E.U. General Data Protection Regulation or a version of the GDPR applicable in the UK, the parties agree to enter into a data processing addendum to this agreement that outlines their obligations with respect to such personal data. In some countries or jurisdictions, additional consents, notices and permissions may be required for certain types of marketing or processing of personal data. Customer understands that, while Landbase seeks to comply with its own legal obligations, Landbase has not obtained any rights or consents on Customer’s behalf; therefore, to the extent that any law or regulation may require that Customer provide notice or obtain consent in order to market to any person or process any person's personal data, Customer agrees that Customer shall obtain on Customer’s own behalf such notices or consents.
2.4. Landbase Personnel. Landbase will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with Landbase’s obligations under this Agreement, except as otherwise specified in this Agreement.
2.5. Beta Services. From time to time, Landbase may make Beta Services available to Customer at no charge. Customer may choose to try such Beta Services or not in its sole discretion. Customer acknowledges and agrees that Beta Services are offered solely for experimental purposes and without any warranty or indemnity of any kind, and Landbase may modify or discontinue Beta Services at any time in its sole discretion.
2.6. Free Trial. If Customer registers on Landbase’s website for a free trial, Landbase will make the applicable Service(s) available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service(s), or (c) termination by Landbase in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY LANDBASE” SECTION BELOW, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND LANDBASE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE LANDBASE’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, LANDBASE AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO LANDBASE AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
2.7. Professional Services. Landbase will perform Professional Services as described in an Order or Statement of Work, which may identify additional terms or milestones for the Professional Services. Customer will give Landbase timely access to Customer Materials reasonably needed for Professional Services, and Landbase will use the Customer Materials only for purposes of providing Professional Services. Subject to any limits in an Order or Statement of Work, Customer will reimburse Landbase’s reasonable travel and lodging expenses incurred in providing Professional Services. Customer may use code or other deliverables that Landbase furnishes as part of Professional Services only in connection with Customer’s authorized use of the Service under this Agreement.
3. USE OF SERVICES AND CONTENT
3.1. Subscriptions and Usage Limits. Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Landbase regarding future functionality or features.
3.2. Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, including any usage limits set forth therein, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Third-Party Services with which Customer uses Services or Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Landbase promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, including without limitation the U.S. CAN-SPAM Act of 2003 or the Canadian Anti-Spam Legislation (CASL), as such statutes may be amended from time to time, or the U.S. TCPA, and (e) comply with terms of service of any Third-Party Services with which Customer uses Services or Content. Any use of the Services in breach of the foregoing by Customer or Users that in Landbase’s judgment threatens the security, integrity or availability of Landbase’s services, may result in Landbase’s immediate suspension of the Services, however Landbase 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.
3.3. General Usage Restrictions. Customer will not (a) make any Service or Content available to anyone other than Customer or Users, or use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use the Services, Content or a Third-Party 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 a Service or Third-Party Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access, copy or use any of Landbase intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works of a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Customer's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, or (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.
3.4. Additional Content and Email Restrictions. Customer will not use the Services or Content to (a) advertise or promote any goods or services (or send any other communications) that are illegal in the place offered or for the individuals targeted, (b) advertise or promote adult services (such as pornography or escort services), tobacco products, illegal gambling, counterfeit or pirated goods or services, or violation any securities or commodities regulations, (c) defraud, deceive, threaten or mislead anyone, or (d) promote or engage in discrimination, harassment or hate speech. In addition, the following email practices are prohibited in connection with Customer’s use of the Services or Content: (i) sending emails from a group distribution alias such as marketing@; (ii) using a false identity or pseudonym to send emails; (iii) sending commercial emails that do not include an opt out message or that otherwise fail to comply with applicable privacy law; or (iv) sending emails that generate an unacceptable level of bounces, spam or complaints, to be determined in Landbase’s sole discretion.
3.5. Removal of Content and Third-Party Services. If Customer receives notice, including from Landbase, that Content or a Third-Party Service may no longer be used or must be removed, modified and/or disabled to avoid violating applicable law or third-party rights, Customer will promptly do so. If Customer does not take required action, including deleting any Content Customer may have downloaded from the Services, in accordance with the above, or if in Landbase’s judgment continued violation is likely to reoccur, Landbase may disable the applicable Content, Service and/or Third-Party Service. If requested by Landbase, Customer shall confirm deletion and discontinuance of use of such Content and/or Third-Party Service in writing and Landbase shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if Landbase is required by any third-party rights holder to remove Content, or receives information that Content provided to Customer may violate applicable law or third-party rights, Landbase may discontinue Customer’s access to Content through the Services.
4. THIRD-PARTY PRODUCTS AND SERVICES
4.1. Third-Party Products and Services. Landbase or third parties may make available third-party products or services, including, for example, Third-Party Services and implementation and other consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any third-party provider, product or service is solely between Customer and the applicable third-party provider. Landbase does not warrant or support Third-Party Services or other third-party products or services, whether or not they are designated by Landbase as “certified” or otherwise, unless expressly provided otherwise in an Order Form. Landbase is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Service or its provider.
4.2. Integration with Third-Party Services. The Services may contain features designed to interoperate with Third-Party Services. Landbase cannot guarantee the continued availability of such Service features and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Service ceases to make the Third-Party Service available for interoperation with the corresponding Service features in a manner acceptable to Landbase.
5. FEES AND PAYMENT
5.1. Fees. Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non- cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
5.2. Invoicing and Payment. Customer will provide Landbase with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Landbase. If Customer provides credit card information to Landbase, Customer authorizes Landbase to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the “Term of Purchased Subscriptions” section below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Landbase will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Landbase and notifying Landbase of any changes to such information.
5.3. Overdue Charges. If any invoiced amount is not received by Landbase by the due date, then without limiting Landbase’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Landbase may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above.
5.4. Suspension of Service and Acceleration. If any charge owing by Customer under this or any other agreement for services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized Landbase to charge to Customer’s credit card), Landbase may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, Landbase will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the “Notices” section below for billing notices, before suspending services to Customer.
5.5. Payment Disputes. Landbase will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
5.6. Taxes. Landbase'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, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Landbase has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Landbase will invoice Customer and Customer will pay that amount unless Customer provides Landbase with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Landbase is solely responsible for taxes assessable against it based on its income, property and employees.
6. PROPRIETARY RIGHTS AND LICENSES
6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Landbase, its Affiliates, its licensors and Content Providers reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.2. Access to and Use of Content. Customer has the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation. Customer may not use the Content to create any derivative work, service or product.
6.3. License by Customer to Landbase. Customer grants Landbase, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Third-Party Services and program code created by or for Customer using a Service or for use by Customer with the Services, and Customer Data, each as appropriate for Landbase to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. If Customer chooses to use a Third-Party Service with a Service, Customer grants Landbase permission to allow the Third-Party Service and its provider to access Customer Data and information about Customer’s usage of the Third-Party Service as appropriate for the interoperation of that Third-Party Service with the Service. Subject to the limited licenses granted herein, Landbase acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, Third-Party Service or such program code.
6.4. License by Customer to Use Feedback. Customer grants to Landbase and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and make and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of Landbase’s or its Affiliates’ services.
6.5. Usage Information. Landbase may access, collect, and use any information from or relating to Customer and Customer’s use of the Services (“Usage Information”) for support purposes, for regulatory and compliance purposes, to protect and enforce Landbase’s and its licensors’ rights, to monitor compliance with and investigate potential breaches of this Agreement, and to recommend additional products or services to Licensee. Landbase may share this information with its partners or affiliates for the same purposes. Customer grants Landbase and its affiliates the perpetual right to use Usage Information for purposes such as to test, develop, improve, and enhance Landbase’s products and services, and to create and own derivative works based on Usage Information, so long as neither Customer nor any other individual is identifiable as the source of such information.
6.6. Federal Government End Use Provisions. Landbase provides the Services, including related software and technology, for ultimate federal government end use in accordance with the following: The Services consist of “commercial items,” as defined at FAR 2.101. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Services shall be as provided in this Agreement, except that, for U.S. Department of Defense end users, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this Agreement specifically granting those rights.
7. CONFIDENTIALITY
7.1. 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. Confidential Information of Customer includes Customer Data; Confidential Information of Landbase includes the Services and Content, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information 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 knowledge of any breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Landbase services.
7.2. Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its 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 this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Landbase may disclose the terms of this Agreement and any applicable Order Form to a contractor or Third-Party Service Provider to the extent necessary to perform Landbase’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
8.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2. Landbase Warranty. Landbase warrants that, to the best of its knowledge, it possesses all necessary authority and permissions to provide Customer with access to the Services and Content under the terms of this Agreement.
8.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SERVICES PROVIDED FREE OF CHARGE, CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER. LANDBASE DOES NOT REPRESENT, COVENANT, WARRANT, OR PROMISE THAT ANY OF THE SERVICES OR CONTENT MAY BE RELIED UPON BY CUSTOMER OR ANY OTHER PARTY TO COMPLY WITH ANY LAW, RULE, REGULATION, INDUSTRY STANDARD, OR POLICY.
9. MUTUAL INDEMNIFICATION
9.1 Indemnification by Landbase. Landbase will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights in the United States (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Landbase in writing of, a Claim Against Customer, provided Customer (a) promptly gives Landbase written notice of the Claim Against Customer, (b) gives Landbase sole control of the defense and settlement of the Claim Against Customer (except that Landbase may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Landbase all reasonable assistance, at Landbase’s expense. If Landbase receives information about an infringement or misappropriation claim related to a Service, Landbase may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Landbase’s warranties under “Landbase Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (I) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (II) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Landbase, if the Services or use thereof would not infringe without such combination; (III) a Claim Against Customer arises from Services under an Order Form for which there is no charge; or (IV) a Claim against Customer arises from Content, a Third-Party Service or Customer’s breach of this Agreement, the Documentation or applicable Order Forms.
9.2. Indemnification by Customer. Customer will defend Landbase and its Affiliates against any claim, demand, suit or proceeding made or brought against Landbase by a third party (a) alleging that the combination of a Third-Party Service or configuration provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or (b) arising from (i) Customer’s use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form, (ii) any Customer Data or Customer’s use of Customer Data with the Services, or (iii) a Third-Party Service provided by Customer (each a “Claim Against Landbase”), and will indemnify Landbase from any damages, attorney fees and costs finally awarded against Landbase as a result of, or for any amounts paid by Landbase under a settlement approved by Customer in writing of, a Claim Against Landbase, provided Landbase (A) promptly gives Customer written notice of the Claim Against Landbase, (B) gives Customer sole control of the defense and settlement of the Claim Against Landbase (except that Customer may not settle any Claim Against Landbase unless it unconditionally releases Landbase of all liability), and (C) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against Landbase arises from Landbase’s breach of this Agreement, the Documentation or applicable Order Forms.
9.3. Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF LANDBASE TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
10.2. IN NO EVENT SHALL LANDBASE OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
11.2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional one-year terms, unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Landbase’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
11.3. Termination. A party may terminate this Agreement 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.
11.4. Payment upon Termination. If this Agreement is terminated by Landbase in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to Landbase for the period prior to the effective date of termination.
11.5. Surviving Provisions. The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Payment upon Termination,” “Removal of Content and Third-Party Services,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as Landbase retains possession of Customer Data.
12. GENERAL PROVISIONS
12.1. Export Compliance. The Services, Content, other Landbase technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Landbase and Customer each represents that it is not on any U.S. government denied-party list. Customer will not permit any User to access or use any Service or Content in a U.S.-embargoed country or region (currently the Crimea, Luhansk or Donetsk regions, Cuba, Iran, North Korea, Sudan or Syria) or as may be updated from time to time or in violation of any U.S. export law or regulation.
12.2. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
12.3. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Landbase and Customer regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
12.4. 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. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
12.5. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
12.6. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
12.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in 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); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), 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 its assets. Notwithstanding the foregoing, if a party is acquired by, sells 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 this Agreement upon written notice. In the event of such a termination, Landbase will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.9. Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c) except for notices of termination or an indemnifiable claim (“Legal Notices”), the day of sending by email. Notices to Landbase will be addressed to the attention of Legal and sent to legal@landbase.com; or as updated by Landbase via written notice to Customer. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer, and Legal Notices to Customer will be addressed to Customer and be clearly identifiable as Legal Notices. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.
12.10. Governing Law. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
12.11. Venue. The state and federal courts located in San Francisco County, California will have exclusive jurisdiction over any dispute relating to this Agreement, and each party consents to the exclusive jurisdiction of those courts.
