Last Updated Sep 27, 2021
THIS END USER SAAS AGREEMENT GOVERNS YOUR USE OF OUR SERVICES. Faraday PERMITS YOU TO PURCHASE, ACCESS, AND/OR USE THE SERVICES ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
IF YOU REGISTER FOR A FREE TRIAL OF OUR SERVICES OR OTHERWISE UTILIZE FREE CAPABILITIES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL, UNLESS OTHERWISE PROVIDED HEREIN.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, USING OUR SERVICES, OR EXECUTING THIS AGREEMENT OR AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR RELATES TO THE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT, INCLUDING ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services or request information from our Services if you are a direct competitor of Faraday, except with our prior written consent. In addition, you may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other competitive purposes.
This Agreement was last updated as of the date above. It is effective between you and Faraday as of the earlier of: (a) the date you accept this Agreement or (b) the date you first access or otherwise use the Services.
For the purposes of this Agreement, the Parties hereby agree that it shall be executed in accordance with the terms, meaning and scope as established below. In this sense, these terms shall be primarily interpreted in an exegetic manner and, secondarily, in a systemic manner, and not in any other system or way of interpretation.
So, any reference to the terms described herein shall hereafter be interpreted as and be inclusive of the meaning given to each term:
1.1. “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.
1.2. “Agreement” means this End User SaaS Agreement.
1.3. “Applicable Data Privacy Laws” means the data privacy and security laws of the relevant jurisdiction, including but not limited to the European Union’s General Data Protection Regulation 2016/679 (“GDPR”) and the California Consumer Privacy Act (“CCPA”).
1.4. “Beta Services” means certain features, technologies, and services that are not generally available to Licensees, as updated from time to time.
1.5. “License Grant”. Personal License constitutes the sole license grant under this EULA. Personal License is subject to the maximum quantity of Users, Workspace, and Assets set forth herein. Faraday shall be entitled to create new license modalities (some of them, most probably, subject to a fee payment) to Faraday’s sole and exclusive discretion.
1.6. “Licensee," “you" or “your” means the person accepting this Agreement, or, if applicable, the company or other legal entity for which Licensee is accepting this Agreement.
1.7. “Licensee Services Data” means electronic data and information submitted by or for Licensee to the Services or collected and processed by or for Licensee as a result of your use of the Services (e.g., username, vendor contact information, support requests, issue remediation).
1.8. “Documentation” means the documentation and Service feature descriptions, as updated from time to time, as provided by Faraday (whether online or otherwise).
1.9. “Disruption Event” means either: (a) a User’s use of the Services which could disrupt: (i) the Services; (ii) other Licensees’ use of the Services; or (iii) Faraday network or servers used to provide the Services; or (b) unauthorized third-party access to the Services.
1.10. “Generic Reports” means reports that may include Licensee Services Data in an anonymous, generic, de-identified format aggregated with other data not constituting Licensee Services Data solely and exclusively for analyzing Licensee needs, improving Faraday products and services, or providing benchmark data of usage and configuration of applications to other Licensees.
1.11. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs, and trojan horses.
1.12. “Non-Faraday Applications” means a web-based or offline software application that is provided by Licensee or a third party and is not owned, operated, controlled, or otherwise provided by Faraday (including any third-party integrations or partner products promoted by Faraday), whether such application interoperates with the Services or is provided on a stand-alone basis.
1.13. “Non-Faraday Material” means files, documents, or other materials of third parties made available by Faraday via the Services but not otherwise owned or controlled by Faraday.
1.14. “Order Form” means a purchase order, quote, online subscription, or other ordering document specifying the Services to be provided hereunder that is entered into between (a) Licensee and (b) Faraday or any of Faraday’s Affiliates or Resellers, including any addenda and supplements thereto. For the avoidance of doubt, Licensee’s subscription confirmation within the Services platform shall be considered an “Order Form” for purposes hereof.
1.15. “Personal Information” means information relating to an identified or identifiable natural person.
1.17. “Professional Services” means the product implementation, training, and/or other professional services to be provided by Faraday to Licensee (if any).
1.18. “Purchased Services” means Services (including Professional Services, but excluding any Faraday API Services) that Licensee purchases under an Order Form, as distinguished from those provided pursuant to a free trial.
1.19. “Reseller” means one of Faraday’s preferred partner resellers through whom Licensee purchases the Services.
1.20. “Services” means the products and services made available online or otherwise by Faraday, including Licensee support services provided in connection with Faraday’s SaaS offerings. “Services” exclude Non-Faraday Materials and Non-Faraday Applications and any products, services or content related thereto.
1.22. “SOW” means the Statement of Work applicable to any Professional Services package purchased by Licensee as part of the Purchased Services (if any).
1.23. “Faraday,” “we,” or “us” means Infobyte, LLC; the sole and exclusive owner of the Software intellectual property. Also referred to as “Licensor”.
1.24. “Faraday API Services” means the product and services related to Faraday API functionality, including the use or development of API Integration(s). For purposes of this definition, “API Integrations” means the systematic interactions between Non-Faraday Applications and the Services that are developed through the Faraday API.
1.25. “Subscription Term” means the period of time during which Users are permitted to use the Services hereunder, as specified in the applicable Order Form and including all renewals or extensions thereof.
1.26. “Suspend” or “Suspension” means the immediate disabling of access to the Services, or components of the Services, as applicable, to prevent further use of the Services.
1.27. “User” and “Licensee”. “User” means an individual who is authorized by Licensee to use one or more of the Services and to whom Licensee (or Faraday at your request) has supplied a user identification and password. Users may include, for example, your employees, consultants, contractors, and agents.
1.28. “Users, Workspace, and Assets” means the maximum number of users (1), workspaces (2), and assets (254) included in the Personal License granted by Licensor. Such limit values shall be subject to change, according to the sole and only discretion of the Licensor.
It is the intent of the parties that the provisions of this Agreement shall be enforced to the fullest extent permitted by Law. To the extent that the terms set forth in this Agreement or any word, phrase, clause or sentence is found to be illegal or unenforceable for any reason, such word, phrase, clause or sentence shall be modified or deleted in such manner so as to afford the party for whose benefit it was intended the fullest benefit commensurate with making this Agreement, as modified, enforceable, and the balance of this Agreement shall not be affected thereby, the balance being construed as severable and independent.
2.0. FREE TRIAL. If applicable, when Licensee registers on the Faraday website for a free trial or otherwise utilizes the functionality of the Services for free, Faraday will make one or more Services available to Licensee on a trial basis, free of charge, until the earlier of (a) the end of the free trial period for which Licensee registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Licensee for such Service(s). Licensee SERVICES DATA ON Faraday SYSTEMS OR IN OUR POSSESSION OR CONTROL, ANY REPORTS, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL MAY BE PERMANENTLY LOST OR DELETED AT THE END OF THE FREE TRIAL PERIOD UNLESS Licensee PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL OR PURCHASES UPGRADED SERVICES BEFORE THE END OF THE TRIAL PERIOD. Faraday WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A FREE TRIAL. NOTWITHSTANDING SECTION 8 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY. Please review the Documentation during the trial period so that you become familiar with the features and functions of the Services before you make your purchase.
3.0. Faraday RESPONSIBILITIES
3.1. Provision of Purchased Services. Faraday will (a) make the Purchased Services available to Licensee pursuant to this Agreement and the applicable Order Forms and SOWs, and (b) provide standard support for the Purchased Services to Licensee at no additional charge. Notwithstanding the foregoing, the Purchased Services may not be available due to: (i) planned downtime (of which Faraday shall give advanced electronic notice through the Services or otherwise and which Faraday shall schedule to the extent practicable during the weekend hours), and (ii) circumstances beyond our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, pandemic, epidemic, quarantine restriction, strike or other labor problem (other than one involving Faraday employees), Internet service provider failure or delay, Non-Faraday Application failure or delay, or for denial of service attack. Faraday reserves the right to make changes to the Services at any time and from time to time, provided, however, that Faraday will not materially decrease the functionality of the Purchased Services during a Subscription Term. If Faraday materially decreases the functionality to the Purchased Services, Faraday will notify Licensee of such change in accordance with Section 12.1 (Manner of Giving Notice).
3.2. Provision of Faraday API Services. In connection with Licensee’s Purchased Services, Faraday may make the Faraday API Services available to Licensee and the following terms and restrictions shall apply to Licensee’s use of the API Services.
3.2.1. Usage Restrictions. In addition to the restrictions set forth in Section 4.4, except as expressly and unambiguously authorized under this Agreement or by Faraday in writing, Licensee shall not (i) disclose or provide the API to any person or entity other than to Licensee’s employees or consultants, or contractors who have a need to know, (ii) use the Faraday API Services in a product or service that is commercially released; (iii) exceed 100 calls / hour; or (iv) use the API in a manner that, as determined by Faraday in its sole discretion, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the Documentation.
3.2.2. Proprietary Rights. As between the parties, Faraday owns all rights, title, and interest in and to the Faraday API Services and all other output of the API. Except to the limited extent expressly provided in this Agreement, Faraday does not grant, and Licensee shall not acquire, any right, title or interest (including, without limitation, any implied license) in or to the Faraday API Services or output thereof.
3.2.3. Disclaimers. Faraday reserves the right to limit access or functionality of the Faraday API Services at any time. Faraday API Services are provided “AS IS” and Faraday disclaims all warranties relating to the API, express or implied, including but not limited to any warranties against infringement, merchantability and fitness for a particular purpose.
3.3. Protection of Licensee Services Data. Faraday will maintain industry-standard administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Services and the Licensee Services Data. Those safeguards will include, but will not be limited to, safeguards to ensure the security of the information technology systems used to provide the Services, maintaining and testing (at least annually) an incident management program, and measures for preventing inappropriate access, use, modification or disclosure of Licensee Services Data by Faraday personnel. Faraday will promptly inform Licensee following discovery of any breach of security, confidentiality, and/or integrity of the Services or Licensee Services Data affecting Licensee.
3.4. Beta Services. From time to time, Faraday may invite Licensee to try Beta Services at no charge. Licensee may accept or decline any such trial in its sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the date that a version of the Beta Services becomes generally available. Faraday may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Faraday WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA SERVICE. NOTWITHSTANDING SECTION 8 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, AND DISCLAIMERS), BETA SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
4.0. USE OF SERVICES; NON-Faraday APPLICATIONS AND MATERIALS; AFFILIATES
4.1. Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Services are purchased as subscriptions, (b) subscriptions may be added during a Subscription Term, with the term for such additional subscription(s) to be prorated for the portion of that Subscription Term remaining at the time the mid-term subscriptions are added, and © any added subscriptions will terminate on the same date as the Subscription Term, subject to any automatic renewals that may apply as set forth below in Section 11.2 below.
4.2. Usage Limits. Services are subject to usage limits, including, for example, the quantities specified in the applicable Order Form(s). Unless otherwise specified, a quantity in an Order Form refers to the Users, Workspace, and Asset set forth in Article I. If Licensee exceeds its then-current contractual usage limit as set forth in the relevant Order Form, Licensee may incur additional fees for excess usage if it does not reduce overuse within ten (10) days after notice from Faraday and in such case, shall remit payment in accordance with Section 5 (Fees and Payment). Licensee then-current contractual usage limit will automatically be increased to a different paid license modality, if applicable (Clause 1.5). If not, Faraday shall be entitled to automatically terminate the license granted.
4.3. Licensee Responsibilities. Licensee will (a) be responsible for Users’ compliance with this Agreement and for all activities that occur through Users’ use of Services, (b) be responsible for the accuracy, quality and legality of Licensee Services Data, including any obtaining all required consents or rights required to use Licensee Services Data, © to prevent unauthorized access to or use of Services (including not sharing any User passwords), and notify Faraday promptly of any such unauthorized access or use, and (d) if applicable, comply with the terms of service for any Non-Faraday Application with which Licensee uses the Services.
4.4. Usage Restrictions. Solely for purposes of this Section 4.4, “Services” shall include Faraday API Services. Licensee will not (a) make any Service available to, or use any Service for the benefit of, anyone other than Licensee or Users, including any part, feature, function or output of a Service, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or any part, feature, function or output thereof (e.g., reports, screenshots), or include any Service in a service bureau or outsourcing offering, © use a 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 to store or transmit Malicious Code, (e) use a Service in violation of this Agreement, applicable laws or government regulations, or form otherwise fraudulent or malicious purposes, (f) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (g) attempt to gain unauthorized access to any Service or its related systems or networks, (h) use or permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, (i) publish, display, or copy (provided that Licensee and its Users can copy as reasonably necessary to its and their rights under this Agreement and in connection with ordinary course back-up and disaster recovery procedures) a Service or any part, feature, function, output, or user interface thereof (this includes a prohibition on any publication of ratings, scores, reports or components thereof), (j) remove any legal, copyright, trademark or other proprietary rights notices contained in or on materials Licensee receives or accesses through the Services; (k) frame or mirror any part of any Service, other than framing on your own intranets or otherwise for your own internal business purposes or as permitted in this Agreement, (l) access any Service in order to build a competitive product or service or use a Service in a way that competes with products or services offered by Faraday, or (m) copy, adapt, reformat, reverse-engineer, disassemble, decompile, download, translate or otherwise modify any Service or Faraday’s website, through automated or other means.
4.5.2. To the extent Licensee provides personal information to Faraday, Licensee represents that it has complied with all Applicable Data Privacy Laws concerning its collection and disclosure of such information, and that it is not relying upon Faraday to discharge any of Licensee’s obligations or responsibilities under Applicable Data Privacy laws.
4.5.3. With respect to the personal information that it receives from Licensee or Users, Faraday represents that it has and will independently comply with all obligations imposed by Applicable Data Privacy upon controllers, that it will not consider itself to be a joint controller with Licensee, and that it will not rely upon Licensee to perform any of Faraday’s obligations as a controller.
4.6. Suspension. If Faraday becomes aware of a User’s violation of this Agreement, then Faraday may specifically request that Licensee Suspend that User’s use of the Services. If Licensee fails to comply with our request to Suspend a User’s use of the Services, then Faraday may Suspend that User’s use of the Services. The duration of any Suspension by Faraday will be until the applicable User has cured the breach that caused the Suspension. Notwithstanding the foregoing, if there is a Disruption Event, then Faraday may automatically Suspend the offending use. The Suspension will be to the minimum extent and of the minimum duration required to prevent or terminate the Disruption Event. If Faraday Suspends a User’s use of the Services for any reason without prior notice to Licensee, then at your request, Faraday will provide Licensee with the reason for the Suspension as soon as is reasonably possible. Should Faraday, carry out any of these actions, the Licensee shall not be entitled to file any claim or complaint, even in the events that the suspension caused a loss of or any kind or damage to the information, data, associated software, business associations or any other damage whatsoever suffered by the Licensee or third parties.
4.7. Non-Faraday Applications and Materials.
4.7.1. Acquisition and Use of Non-Faraday Applications. Faraday or third parties may make available third-party products or services, including, for example, Non-Faraday Applications and implementation and other consulting services. If Licensee elects to acquire or use such Non-Faraday Applications, any exchange of data between Licensee and any non-Faraday provider is solely between Licensee and the applicable non-Faraday provider. Faraday DOES NOT WARRANT OR SUPPORT NON-Faraday APPLICATIONS OR OTHER NON-Faraday PRODUCTS OR SERVICES, WHETHER OR NOT THEY ARE DESIGNATED BY Faraday. SUCH NON-Faraday APPLICATIONS ARE NOT UNDER THE CONTROL OF Faraday AND Faraday IS NOT RESPONSIBLE FOR THE PRODUCT, SERVICES, WEBSITE, OR CONTENT OF ANY THIRD-PARTY PROVIDER. Non-Faraday Applications may be subject to additional terms and conditions between the provider of such Non-Faraday Application and Licensee, including terms related to the collection, use and processing of Personal Information. If Licensee elects to acquire or use a Non-Faraday Application, it is Licensee’s responsibility to review and understand these additional terms.
4.7.2. Non-Faraday Applications and Your Licensee Services Data. If Licensee installs or enables a Non-Faraday Application for use with a Service, Licensee grants Faraday permission to allow the provider of that Non-Faraday Application to access Licensee Services Data as required for the interoperation of that Non-Faraday Application with the Service. Faraday is not responsible or liable for any disclosure, modification or deletion of Licensee Services Data resulting from access by a Non-Faraday Application. Faraday is not responsible or liable to Licensee if you install, connect, enable, use or share any integration, feature, workflows, actions, or suggestions authored or made available by an entity other than Faraday.
4.7.3. Integration with Non-Faraday Applications. The Services may contain features designed to interoperate with Non-Faraday Applications. To use such features, Licensee may be required to obtain access to Non-Faraday Applications from their providers and may be required to grant Faraday access to your account(s) on the Non-Faraday Applications.
4.7.4. Use of Non-Faraday Materials. Third parties may make available Non-Faraday Materials using the Services for Licensee to view, download or otherwise use. NON-Faraday MATERIAL IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND Faraday MAKES NO REPRESENTATION WITH RESPECT TO NON-Faraday MATERIAL AND Faraday WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH NON-Faraday MATERIAL.
5.0. FEES AND PAYMENT FOR PURCHASED SERVICES
5.1. Reseller Purchases. If Licensee purchases the Services through a Reseller, all payment-related terms (including, but not limited to, pricing, invoicing, billing, payment methods, and late payment charges) will be set forth in Licensee’s agreement directly with such Reseller and such payment-related terms will supersede any conflicting terms set forth in this Section 5. Faraday may suspend or terminate your access to the Services in the event of non-payment of the applicable fees to Faraday by the Reseller due to your non-payment, or Licensee’s uncured breach of this Agreement. Notwithstanding anything to the contrary, the agreement between Licensee and a Reseller: (i) shall not modify any of the terms set forth herein other than Sections those portions of Section 5 related to billing and payments, and (ii) is not binding on Faraday.
5.2. Fees. Licensee will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on the Service purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable except as set forth in Section 11.4 below, and (iii) quantities purchased cannot be decreased during the relevant Subscription Term. Except as otherwise specified, all Fees shall be considered as payable annually and in advance.
5.3. Invoicing and Payment. Fees shall be invoiced in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. Unless otherwise stated in the Order Form, invoiced charges are due upon receipt of such invoice and payable net thirty (30) from the invoice date. Any payments not made within thirty (30) days of the receipt of such invoice shall accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. Licensee is responsible for providing complete and accurate billing and contact information to Faraday and notifying Faraday of any changes to such information. Licensee acknowledges and agrees that Faraday may engage third-party payment processors, which includes Stripe and its affiliates, to process online payments made by Licensee hereunder, and that such payment processors will be provided your payment information in order to help us process your payment.
5.4. Overdue Charges. If any undisputed invoiced amount is not received by Faraday thirty (30) days after the invoice date, then without limiting our rights or remedies (a) Faraday may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.3 (Invoicing and Payment), and/or (b) Faraday may require Licensee to pay all reasonable collections or legal fees incurred by Faraday in order to collect payment of the corresponding undisputed invoiced amount.
5.5. Suspension of Service and Acceleration. If any amount owing by Licensee under this or any other agreement for Purchased Services is thirty (30) or more days overdue, Faraday may, without limiting other rights and remedies, accelerate Licensee’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services to Licensee until such amounts are paid in full. Faraday will give Licensee at least 10 days’ prior notice, in accordance with Section 12.1 , before Suspending Services to Licensee pursuant to the foregoing.
5.6. Taxes. Our 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”). Licensee is responsible for paying all Taxes associated with its purchases hereunder. If Faraday has the legal obligation to pay or collect Taxes for which Licensee is responsible under this Section 5.6, Faraday will invoice Licensee and Licensee will pay that amount unless Licensee provides Faraday with a valid tax exemption certificate authorized by the appropriate taxing authority. Each unique tax charged shall be separately itemized and so characterized as to identify the state and locality of the service being taxed, according to the Licensee’s instructions. For clarity, Faraday is solely responsible for taxes assessable against Faraday based on our income, property, and employees.
5.7. Future Functionality. Licensee 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 Faraday regarding future functionality or features.
6.0. PROPRIETARY RIGHTS AND LICENSES
6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Faraday reserves all of its right, title, and interest in and to the Services and any proprietary materials of Faraday contained therein, including all intellectual property rights therein and thereto, and Licensee acquires no rights with respect to the Services, by implication or otherwise, except for those expressly granted in this Agreement. Licensee reserve all of Licensee’s rights, title and interest in Licensee Services Data, provided that Faraday may use Licensee Services Data to create Generic Reports and as provided in Section 6.2 below. No rights are granted to Licensee hereunder other than as expressly set forth herein.
6.3. License by Licensee to Use Feedback. Licensee grants to Faraday a worldwide, perpetual, irrevocable, transferable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Licensee or Users relating to the operation of the Services, provided that Faraday shall not identify Licensee as the source of such feedback.
7.1. Definition of Confidential Information. “Confidential Information” means all information and materials 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. Both Parties acknowledge and agree that the Proprietary Information they may have obtained from the other party as a result of this Agreement, prior to or during its performance, shall remain the sole and exclusive property of the disclosing party or its Affiliates or a third party, if applicable. The exposure as “receiving party” by one of the Parties to confidential information of the other party or the receipt of the Proprietary Information does not confer upon them any license, interest, or right of any kind in or to the Proprietary Information, except as provided under this Agreement. Faraday Confidential Information includes the Services and any proprietary materials provided through the Services; Licensee Confidential Information includes Licensee Services Data; and Confidential Information of each party includes any proprietary pricing Licensee might receive as a quote, offer, or in an Order Form, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information 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 breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party as shown by documents and other competent evidence in the Receiving Party’s possession.
7.2. The Licensee shall cause each employee, subcontractor, employee of all subcontractors, Authorized Reseller, and employee of all Authorized Resellers who are exposed to the Proprietary Information to execute a nondisclosure agreement containing substantially the same terms as this Article, and a copy thereof shall be delivered to Faraday within a reasonable time after execution thereof. The Parties shall require any recipient of Proprietary Information to abide by the restrictions of this Agreement concerning the Proprietary Information before such Proprietary Information is disclosed to the recipient.
7.2. Protection of Confidential Information. The Receiving Party will (i) 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), (ii) 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, disclose Confidential Information of the Disclosing Party only to those of its employees, officers, advisors, contractors, and agents and its Affiliates’ employees, officers, advisors, contractors, and agents who need that access for purposes consistent with this Agreement and who are subject to confidentiality obligations consistent with this Agreement. Receiving Party is fully responsible for the compliance of its employees, officers, advisors, contractors, and agents and its Affiliates’ employees, officers, advisors, contractors, and agents with the terms of this Section 7.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law or by the order of a court or similar judicial or administrative body 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.
7.4. Nothing in this Article shall prohibit or limit the use of information if the Party that intends to use it establishes that (i) at the time of disclosure hereunder such information was generally available to the public; (ii) after disclosure hereunder the information became generally available to the public, except through breach of this Agreement by such Party; (iii) the information was in the receiver’s possession on a non-confidential basis and it was not acquired directly or indirectly from the owner of such information or any Affiliate, as evidenced by the receiver’s written records; or (iv) the information becomes available from a third party which is not legally prohibited from disclosing such information, provided such information was not acquired directly or indirectly from the owner or any Affiliate.
8.0 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. Faraday Warranties. Faraday warrants that: (a) the Purchased Services will perform materially in accordance with the specifications set forth in the Documentation; (b) Faraday will provide the Professional Services, if applicable, in a professional and workmanlike manner; and © Faraday has used commercially reasonable efforts to detect and prevent the introduction of Malicious Code into the Services. For any breach of the above warranties, Licensee’s exclusive remedy and Faraday’s sole obligation is those described in Sections 11.3 (Termination) and 11.4 (Refund or Payment upon Termination).
8.3. Mutual Warranties. Each party warrants that it will comply with all laws and regulations applicable to its provision or use of the Services, as applicable (including applicable security breach notification law).
8.4. 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, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS OR NON-Faraday APPLICATIONS.
9.0. MUTUAL INDEMNIFICATION
Mutual Indemnification. Each party shall indemnify, defend and hold harmless, and does hereby indemnify, defend and hold the other Party, and their respective employees, and successors in interest harmless (each of the foregoing being hereinafter referred to as an “Indemnified Party”, individually, and as the “Indemnified Parties”, collectively, and the counterparty referred to as “Indemnifying Party”) against any and all claims, suits, actions (including declaratory judgment actions brought by that Party’s Indemnitees or Indemnitee in response to a claim described herein), liabilities, losses, costs, reasonable attorneys’ fees, expenses, judgments or damages, whether ordinary, special or consequential, resulting from any claim made by a third party or suit brought against an Indemnified Party (other than liability solely attributable to the Indemnified Party) arising from (i) the gross negligence of the Indemnifying Party, its agents, employees, directors, officers or Authorized Resellers; (ii) any material breach of this Agreement, including any representation, warranty or covenant made herein; (iii) any claim brought against the Indemnified Party, by the Indemnifying Party´s agents, employees, directors, officers, or Authorized Resellers.
Intellectual Property. In addition to the indemnification provided in Section **.1 above, Faraday shall indemnify and hold the Client harmless from and against any and all claims resulting from the Services, or the Client Indemnified Party’s use of any part thereof, including without limitation, claims alleging that the Services, or Client Indemnified Party’s use of any part thereof, misappropriates or infringes a patent, copyright, trade secret, trademark, moral right, or other proprietary or intellectual property. Notwithstanding the foregoing, Faraday shall not be held liable in any way for the claims set forth in the previous paragraph when the damage made was caused solely by Client’s fraud, or negligence by any employee, director or officer of Client or its Affiliates. In any such cases, the owed indemnity shall not override Faraday’s right to bring the relevant legal actions to seek relief for the damages suffered by Faraday or by third parties on account of those acts.
Indemnification Process. If any third party makes a claim covered by the “Mutual indemnification” or “Intellectual Property” Sections above against an Indemnified Party with respect to which such Indemnified Party intends to seek indemnification under this Article, the Indemnified Party shall give notice of such claim to the Indemnifying Party including a comprehensive description of the claim, with all the relevant supporting documentation, and the amount sought, if known, together with the breakdown of the balance of the claim in question. Failure to give such notice shall not relieve the Indemnifying Party of its obligations hereunder except with regard to the damages or further damages that result from delays or irregularities in such notice. Upon giving such notice, the notified Party shall be bound to defend such Indemnified Party against such claim, and the notified Party shall be entitled to assume the control of the defense of the claim with a legal counsel designated by the Indemnifying Party, and reasonably satisfactory to the Indemnified Party. The Indemnified Party shall, to a commercially reasonable extent, cooperate fully with and assist the Indemnifying Party in its defense against such claim in all reasonable respects, at the Indemnifying Party’s request. The Indemnifying Party shall take commercially reasonable steps to keep the Indemnified Party fully apprised at all times as to the status of the defense. The Indemnified Party shall have the right, at its own expense, to employ separate counsel in any such action, but the role of such counsel shall only be supportive of the Indemnifying Party’s counsel. Neither Party shall be liable for any settlement of action or claim effected without its consent, which shall not be unreasonably withheld. Until both (a) the Indemnified Party receives written notice from the Indemnifying Party that it will defend such claim, and (b) the Indemnifying Party assumes such defense, the Indemnified Party may, at any time after thirty (30) business days from the date notice of claim is given to the Indemnifying Party by the Indemnified Party, resist or otherwise defend the claim or, after notice to the Indemnifying Party, settle or otherwise compromise or pay the claim. In this latter case, the Indemnified Party shall take all commercially reasonable steps to keep the Indemnifying Party fully apprised at all times as to the status of the defense; and the Indemnifying Party shall pay all costs of indemnity arising out of or relating to that defense and any such settlement, compromise, or payment; provided that such proceeding is proportional and reasonable in relation to the alleged claim. Otherwise, and at all times, the Indemnified Party shall bear the costs and other items arising from its acts.
9.3. Exclusive Remedy. At the Faraday sole discretion, if the Licensee use of the Software is enjoined or if Faraday reasonably believes an injunction is likely to be issued, or if the Licensee believes in good faith that the Software is likely to be determined to be an infringement or misappropriation of a patent, copyright, trade secret, trademark, moral right, or other proprietary or intellectual property right, Faraday may, at the Licensee’s expense, in the following mandatory order: (i) replace the Software with compatible, functionally equivalent and non-infringing software; or (ii) modify the Software to make it non-infringing; provided, however, that no such replacement or modification shall substantially impair the functionality or performance of the Software. Said proceeding shall render void any claim or action to which the Licensee believed to be entitled to, or whose cause was related to the preceding clause.
10.0. LIMITATION OF LIABILITY.
10.1. Exclusion of Consequential and Related Damages. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR GOODWILL), WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10.2. Limitation of Liability. To the maximum extent permitted by applicable law, in no event shall Faraday or its suppliers be liable for any special incidental, indirect, consequential damages whatsoever (including, but not limited to, damages for loss of profits or confidential or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out for or in any way related to the use of or inability to use the Product or Service, the provision of or failure to provide support services, or otherwise under or in connection with any provision of this Agreement, even in the event of the fault, tort (negligence included), strict liability, when in any way, actual or potential, direct or indirect, with immediate or mediate relation to the result, the Client, its Users or any other person with a commercial or employment relationship with the Client, whether permanent, temporary or even incidental, with or without access to the Platform or the Software, may have been involved in the occurrence of said damages or failed to help prevent them, regardless of the actual proportion or impact that those actions or omissions, in particular, may have in the occurrence of the damages. Under such circumstances, Client agrees to hold Faraday harmless from and against actual or potential damages, in accordance with the preceding provisions.
11.0. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the Effective Date set forth on the signature page and continues for so long as Faraday is providing Services.
11.2. Term of Purchased Subscriptions; AUTO-RENEWAL OF SUBSCRIPTION TERM. The Subscription Term shall be, and shall renew, as specified in the applicable Order Form. If no such term or renewal period is specified, Subscriptions will have an initial term of one year and will automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least sixty (60) days before the end of the relevant Subscription Term in accordance with Section 12.1.
11.3. Termination. Regardless of Term and Renewals conditions set forth in Clause 11.2, any party may terminate this Agreement: (i) thirty (30) days after providing written notice to the other party, and without the need to state any reason or motivation. In this event, the terminating party shall not be liable to the other party for any damage, amount, or concept; (ii) in the cases and conditions agreed in an Order Form or SOW entered by the parties.
11.4. Refund or Payment upon Termination. If this Agreement is terminated by Licensee for material uncured breach in accordance with Section 11.3(i) or (iii), Faraday will refund Licensee any prepaid fees covering the remainder of the Subscription Term of all Order Forms or SOW after the effective date of termination. If this Agreement is terminated by Faraday in accordance with Section 11.3, Licensee will pay any unpaid fees covering the remainder of the Subscription Term of all Order Forms. In no event will termination relieve Licensee of its obligation to pay any fees payable to Faraday for the Subscription Term period prior to the effective date of termination.
11.5. Licensee Services Data. After the effective date of termination or expiration of this Agreement, Faraday will have no obligation to maintain or provide Licensee Services Data, and may, in its sole discretion, delete or destroy all copies of Licensee Services Data in our systems or otherwise in our possession or control, unless legally prohibited.
11.6. Surviving Provisions. The Sections that are intended by their nature to survive termination or expiration shall so survive any termination or expiration of this Agreement.
12.0. NOTICES, GOVERNING LAW AND JURISDICTION
12.1. Manner of Giving Notice. 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 email (provided email shall not be sufficient for notices of an indemnifiable claim). Notices to Faraday shall be addressed to Infobyte, LLC., Attn: Legal Department; 3310 Mary St Suite 501, Miami, FL 33133; with copy to email@example.com. Billing-related notices to Licensee shall be addressed to the relevant billing contact designated by Licensee. All other notices to Licensee shall be addressed to the relevant Services system administrator designated by Licensee, in writing, by like notice.
12.2. Agreement to Governing Law and Jurisdiction. Each party agrees that this Agreement is governed by and shall be construed in accordance with the laws of the State of Florida, in all respects, without regard to choice or conflicts of law rules, and that all disputes arising out of or relating to this Agreement are limited to the exclusive jurisdiction and venue of the state and federal courts located within Miami County, Florida. Each party hereby consents to and waives any objections with respect to such jurisdiction and venue. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO THIS AGREEMENT.
13.0 GENERAL PROVISIONS
13.1. Entire Agreement and Order of Precedence. This Agreement, including any Order Forms, is the entire agreement between Licensee and Faraday regarding Licensee’s use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter (including any non-disclosure agreement between Licensee and Faraday where the sole purpose was to evaluate the subscription hereunder). No waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the waiver is to be asserted. No modification or amendment of any provision of this Agreement, an Order Form or SOW will be effective unless in writing and signed by the party against whom the waiver is to be asserted. No failure by the parties to insist upon the strict performance of any provision of this Agreement or to exercise any right or remedy upon a breach thereof shall constitute a waiver, except for the cases expressly contemplated by this Agreement. The parties agree that any term or condition stated in a Licensee purchase order or in any other 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 or SOW, (2) this Agreement, and (3) the Documentation.
13.2. 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 and SOWs hereunder), 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 or equity securities. 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. Any attempted transfer, assignment or sublicense of this Agreement without prior written consent may be null and void ab initio.
13.3. 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.
13.4. Third-Party Beneficiaries. The parties do not intend to create any third-party beneficiaries of this Agreement, and nothing in this Agreement is intended, nor shall anything herein be construed to create any rights, legal or equitable, in any person other than the Parties to this Agreement including suppliers or subcontractors of a party, or to create any obligations of a party to any such third parties.
13.5. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
13.6. 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.
13.7. Headings. Headings are used in this Agreement and all associated agreements are solely for convenience and shall not be deemed to affect in any manner the meaning or intent of the applicable agreement or any provision there/hereof.
13.8. Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
13.9. Force Majeure. Faraday will not be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is caused, directly or indirectly, by fire, flood, earthquake, elements of nature or acts of God, epidemics, future pandemics, riots, civil disorders, political instability, work stoppages, strikes, lock-outs, embargoes or any other cause beyond the reasonable control of the Licensor; provided the non-performing Party is without fault in causing such default or delay. For the avoidance of doubt, COVID-19 and other pandemics or epidemics of which Faraday had knowledge and the opportunity to prepare for, shall not be considered Force Majeure Events.
13.10. Jury Trial Waiver. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.