PLEASE READ THE FOLLOWING TERMS OF USE AGREEMENT (“TERMS”), WHICH ALONG WITH THE APPLICABLE ORDER FORM (AS DEFINED BELOW) THAT REFERENCES MODERNLOOP’S SERVICES AND THESE TERMS, ANY EXHIBITS AND ANY SUPPLEMENTAL TERMS (TOGETHER THE “AGREEMENT”) CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE ENTITY IDENTIFIED AS THE CUSTOMER ON THE APPLICABLE ORDER (“YOU” OR “CUSTOMER”), AND MODERNLOOP, INC. (“MODERNLOOP,” “OUR,” “US,” OR “WE”) AND GOVERNS YOUR ACCESS TO AND USE OF THE SERVICES (AS DEFINED BELOW), INCLUDING MODERNLOOP’S WEBSITE LOCATED AT HTTPS://WWW.MODERNLOOP.IO/ (THE “SITE”). BY EXECUTING AN ORDER FORM, OR BY ACCESSING OR USING THE SERVICES, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY AND TO COMPLY WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU ARE NOT PERMITTED OR AUTHORIZED TO USE THE SERVICE. IF YOU ARE A DIRECT COMPETITOR TO MODERNLOOP, YOU MAY NOT ACCESS OR USE THE SERVICE WITHOUT MODERNLOOP’S EXPLICIT, ADVANCE, WRITTEN CONSENT, AND THEN ONLY FOR THE PURPOSES AUTHORIZED IN WRITING. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE SITE OR THE SERVICES.
If the Order Form is inconsistent with the terms of these Terms, the Order Form shall control with respect to such Services. The Agreement is effective as of the date set forth in the applicable Order Form (the “Effective Date”).
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.
The Agreement is subject to change by ModernLoop in its sole discretion at any time. When changes are made, ModernLoop will make a new copy of the Terms available at the Site or within the Services and any new Supplemental Terms will be made available from within, or through, the affected Service on the Site. ModernLoop will also update the “Last Updated” date at the top of the Terms. If ModernLoop makes any material changes, and Customer has registered with ModernLoop to create an Account (as defined in Section 2.1 below) ModernLoop will also send an e-mail to Customer at the last e-mail address Customer provided to ModernLoop pursuant to the Agreement. ModernLoop may require Customer to provide consent to the updated Agreement in a specified manner before further use of the Site and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Site and/or the Services. Otherwise, your continued use of the Site and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT AGREEMENT.
You agree to receive electronically all communications, agreements, and notices that we provide in connection with the Service (“Communications”), including by e-mail, text, in-app notifications, or by posting them on the Site or through the Services. You agree that all Communications that we provide to you electronically satisfy any legal requirement that such Communications be in writing.
- DEFINITIONS. Capitalized terms will have the meanings set forth in this Section 1, or in the section where they are first used.
1.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the ModernLoop Offering.
1.2 “Applicant” means an individual who has submitted an application for employment to Customer through Customer’s ATS.
1.3 “Authorized User” means each of Customer’s Personnel and Applicants who are authorized to access the ModernLoop Offering pursuant to Customer’s rights under this Agreement.
1.4 “ATS” means Customer’s application tracking system software application that enables the electronic handling of recruitment and hiring needs.
1.5 “Confidential Information” means any information of a party, in written, electronic or any other form or medium, regarding the business, projects, operations, finances, activities, affairs, research, development, products, technology, business models, plans and processes, marketing and sales plans, customers, employee data, applicant data, resume information, computer hardware, software, and systems, processing techniques and generated outputs, intellectual property, procurement processes or strategies or suppliers of a party or directors, officers, Personnel or Applicants, including, without limitation, any idea, proposal, plan, procedure, technique, formula, technology, or method of operation that is disclosed to the other party under this Agreement and labeled or otherwise clearly identified as “confidential” or the equivalent at the time of disclosure or which, given the circumstances of disclosure, the receiving party would have reason to know the information is confidential or proprietary. With respect to Customer only, Confidential Information shall include all Customer Data.
1.6 “Customer Data” means all data and information (i) submitted to ModernLoop by or on behalf of Customer, its Personnel, and/or Applicants; or (ii) obtained by ModernLoop in connection with the Services, including via Customer’s ATS, to the extent such data or information is based on, summarizes or includes data and information of a Customer, employees, and/or applicants.
1.7 “ModernLoop Offering” means ModernLoop’s software-as-a-service recruiting operations platform and related application programming interfaces and tools that are designed to streamline recruiting and training processes.
1.8 “Documentation” means the technical materials provided by ModernLoop to Customer in hard copy or electronic form describing the use and operation of the ModernLoop Offering.
1.9 “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.10 “Licensed Material” means results, reports, and materials that may be made available to Customer as part of the Services, as specified on an Order Form or SOW.
1.11 “Order Form” means an order form that is signed by both parties and references this Agreement.
1.12 “Personnel” means employees, agents, subcontractors and representatives of Customer.
1.13 “Professional Services” means professional services provided by ModernLoop to Customer as described in any Order Form (as may be further elaborated in any statement of work).
1.14 “Services” means any services provided by ModernLoop to Customer under this Agreement as set forth in an Order Form, including, but not limited to, provision of the ModernLoop Offering and Professional Services.
1.15 “Supported Environment” means the minimum hardware, software, and connectivity configuration specified from time to time by ModernLoop as required for use of the ModernLoop Offering. The current requirements are described in the Documentation.
- PROVISION OF SERVICES
2.1 Access. Subject to Customer’s payment of the fees set forth in the Order Form (“Fees”), ModernLoop will provide Customer with access to the ModernLoop Offering. On or as soon as reasonably practicable after the Effective Date ModernLoop will provide to Customer the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Customer and its Authorized Users to register for and access Customer’s account on the ModernLoop Offering (“Account”) in accordance with the Access Protocols. Customer acknowledges and agrees that each Authorized User may be required to electronically agree to these Terms or to ModernLoop’s standard terms of service agreement prior to accessing and/or using any ModernLoop Offering. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the ModernLoop Offering, and notify ModernLoop promptly of any such unauthorized use known to Customer. Customer will be responsible for all acts or omissions of its Authorized Users in connection with their access to and use of the ModernLoop Offering.
2.2 Support Services. Subject to the terms and conditions of this Agreement, ModernLoop will exercise commercially reasonable efforts to (a) provide support for the use of the ModernLoop Offering to Customer, and (b) keep the ModernLoop Offering operational and available to Customer, in each case in accordance with its standard policies and procedures.
2.3 Hosting. ModernLoop will, at its own expense, provide for the hosting of the ModernLoop Offering, provided that nothing herein will be construed to require ModernLoop to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access the ModernLoop Offering from the Internet.
2.4 Customer Cooperation. Customer acknowledges that its timely provision of, and access to, assistance, cooperation, complete and accurate information and data from its Personnel and Applicants, successful integration with Customer’s ATS and intra-office communications platforms (including, but not limited to, Google calendar, Zoom, and Slack), and suitably configured computer, network, and equipment, along with Customer’s performance of any of its obligations specified in an SOW (collectively, “Cooperation”) are essential to performance of any Services, and that ModernLoop will not be liable for any deficiency in performing Services if such deficiency results from Customer’s failure to provide full Cooperation.
- INTELLECTUAL PROPERTY
3.1 Grant of Rights. Subject to the terms and conditions of this Agreement, ModernLoop grants to Customer a non-exclusive, non-transferable (except as permitted under Section 12.5) right during the Term (as defined below), for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in the Order Form, (a) to access and use the ModernLoop Offering solely within the Supported Environment, and in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the ModernLoop Offering. Customer may permit any Authorized Users to access and use the features and functions of the ModernLoop Offering as contemplated by this Agreement.
3.2 Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the ModernLoop Offering, Licensed Material or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the ModernLoop Offering, Licensed Material or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the ModernLoop Offering or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the ModernLoop Offering, except as permitted by law; (e) interfere in any manner with the operation of the ModernLoop Offering or the hardware and network used to operate the ModernLoop Offering; (f) modify, copy or make derivative works based on any part of the ModernLoop Offering or Documentation; (g) access or use the ModernLoop Offering to build a similar or competitive product or service; (h) attempt to access the ModernLoop Offering through any unapproved interface; or (i) otherwise use the ModernLoop Offering, Licensed Material, or Documentation in any manner that exceeds the scope of use permitted under Section 3.1 or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Customer acknowledges and agrees that the ModernLoop Offering will not be used, and are not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of ModernLoop or its licensors on the Licensed Material or any copies thereof.
3.3 Ownership. The ModernLoop Offering, Licensed Materials and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of ModernLoop and its suppliers. All rights in and to the ModernLoop Offering and Documentation not expressly granted to Customer in this Agreement are reserved by ModernLoop and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the ModernLoop Offering, Documentation, or any part thereof.
3.4 License to Licensed Material. Subject to the terms and conditions of this Agreement, ModernLoop grants Customer a perpetual, royalty-free, fully-paid, nonexclusive, non-transferable (except as permitted under Section 12.5), non- sublicensable license to use the Licensed Material solely for Customer’s internal business purposes.
3.5 Open Source Software. Certain items of software may be provided to Customer with the ModernLoop Offering and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.1 or 10. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, ModernLoop makes such Open Source Software, and ModernLoop’s modifications to that Open Source Software, available by written request at the notice address specified below.
3.6 Feedback. Customer hereby grants to ModernLoop a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Services (“Feedback”). ModernLoop will not identify Customer as the source of any such Feedback.
- FEES AND EXPENSES; PAYMENTS
4.1 Fees. In consideration for the access rights granted to Customer and the Services performed by ModernLoop under this Agreement, Customer will pay to ModernLoop the Fees. Except as otherwise provided in the Order Form, all Fees are payable upfront and in advance prior to the Order Form Commencement Date. For any other payment terms agreed upon by the parties, ModernLoop will invoice Customer the Fees on the basis specified in each Order Form. Unless set forth to the contrary in such Order Form, Customer shall pay all invoiced amounts within thirty (30) days after the date of invoice. ModernLoop reserves the right to modify the Fees payable hereunder upon written notice to Customer at least ninety (90) days prior to the end of the then-current term. ModernLoop will be reimbursed only for expenses that are expressly provided for in an Order Form or SOW or that have been approved in advance in writing by Customer, provided ModernLoop has furnished such documentation for authorized expenses as Customer may reasonably request. ModernLoop reserves the right (in addition to any other rights or remedies ModernLoop may have) to discontinue the ModernLoop Offering and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are more than sixty (60) days overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times.
4.2 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on ModernLoop’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the ModernLoop Offering to Customer. Customer will make all payments of Fees to ModernLoop free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to ModernLoop will be Customer’s sole responsibility, and Customer will provide ModernLoop with official receipts issued by the appropriate taxing authority, or such other evidence as the ModernLoop may reasonably request, to establish that such taxes have been paid.
4.3 Interest. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
- CUSTOMER DATA AND RESPONSIBILITIES
5.1 License; Ownership. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Data. Customer will obtain all third party licenses, consents, permissions, and authorizations needed for ModernLoop to access and use the Customer Data as authorized herein. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for ModernLoop to use the Customer Data submitted by or on behalf of Authorized Users for the purposes set forth in this Agreement. Customer grants ModernLoop a non-exclusive, worldwide, royalty-free and fully paid license (a) during the Term to use the Customer Data as necessary for purposes of providing and improving the Services, (b) during the Term to use the Customer trademarks, service marks, and logos as required to provide the Services, and (c) during and following the expiration or termination of the Term, use the Customer Data in an aggregated and anonymized form to: (i) improve the Services and ModernLoop’s related products and services; (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding use of the Services, provided, however, that no Customer-only statistics will be disclosed to third parties without Customer’s consent. The Customer Data, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. All rights in and to the Customer Data not expressly granted to ModernLoop in this Agreement are reserved by Customer. Use of Personally Identifiable Information by ModernLoop for anything other than as set forth herein is prohibited. “Personally Identifiable Information” means information that can be used to distinguish or trace an individual’s identity, either alone or when combined with other personal or identifying information that is linked or linkable to a specific individual.
5.2 Customer Warranty. Customer represents and warrants that any Customer Data will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage ModernLoop’s system or data; and (e) otherwise violate the rights of a third party. ModernLoop is not obligated to back up any Customer Data; the Customer is solely responsible for creating backup copies of any Customer Data at Customer’s sole cost and expense. Customer agrees that any use of the ModernLoop Offering contrary to or in violation of the representations and warranties of Customer in this Section 5.2 constitutes unauthorized and improper use of the ModernLoop Offering.
5.3 Customer Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Data and will be responsible for all changes to and/or deletions of Customer Data and the security of all passwords and other Access Protocols required in order the access the ModernLoop Offering. Customer will have the ability to export Customer Data out of the ModernLoop Offering and is encouraged to make its own back-ups of the Customer Data. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.
- PROFESSIONAL SERVICES. Where the parties have agreed to ModernLoop’s provision of Professional Services, the details of such Professional Services will be set out in an Order Form or a mutually executed statement of work (“SOW”). The Order Form or SOW, as applicable, will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees applicable for the performance of the Professional Services. Each Order Form or SOW, as applicable, will incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of an Order Form or SOW and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form or SOW, as applicable, expressly states that it supersedes specific language in the Agreement.
- WARRANTIES AND DISCLAIMERS
7.1 Limited Warranty. ModernLoop represents and warrants that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. Provided that Customer notifies ModernLoop in writing of the breach within thirty (30) days following performance of the defective Services, specifying the breach in reasonable detail, ModernLoop will, as Customer’s sole and exclusive remedy, for any breach of the foregoing, re-perform the Services which gave rise to the breach or refund the fees paid by Customer for the Services which gave rise to the breach. ModernLoop further warrants to Customer that the ModernLoop Offering will operate free from Errors during the Term, provided that such warranty will not apply to failures to conform to the Documentation to the extent such failures arise, in whole or in part, from (a) any use of the ModernLoop Offering not in accordance with this Agreement or as specified in the Documentation; (b) any use of the ModernLoop Offering in combination with other products, equipment, software or data not supplied by ModernLoop; or (c) any modification of the ModernLoop Offering by any person other than ModernLoop or its authorized agents.
7.2 Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 7.1 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, LICENSED MATERIAL AND DOCUMENTATION ARE PROVIDED “AS IS,” AND MODERNLOOP MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. MODERNLOOP DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE MODERNLOOP OFFERING WILL BE UNINTERRUPTED OR ERROR-FREE.
- LIMITATION OF LIABILITY
8.1 Types of Damages. EXCEPT IN CIRCUMSTANCES WHERE CUSTOMER DATA IS IMPROPERLY DISCLOSED (SEE SECTION 5.1, ABOVE) OR CONFIDENTIALITY IS BREACHED (SEE SECTION 9, BELOW), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
8.2 Amount of Damages. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO MODERNLOOP DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL MODERNLOOP’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
8.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 8 will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
- CONFIDENTIALITY
9.1 Confidentiality. During the Term, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with Confidential Information. The Receiving Party agrees that:
(a) it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement;
(b) it will limit access to the Disclosing Party’s Confidential Information to those Personnel who have a need to know such Confidential Information to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under this Agreement, and who have been informed of the confidential nature of such information;
(c) it will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care;
(d) if it is required by Law to disclose the other party’s Confidential Information, it shall promptly notify the other party in writing in advance of such disclosure, and provide the disclosing party with copies of any related information so that the disclosing party may take appropriate action to protect the Confidential Information
(e) at the Disclosing Party’s request or upon termination of this Agreement, it will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) any Confidential Information that the it does not have a continuing right to use under this Agreement; and
(f) it shall provide to the Disclosing Party a written affidavit certifying compliance with subsection (e) above.
9.2 Exceptions. Notwithstanding anything to the contrary in this Agreement, Confidential Information does not include any information that the Receiving Party can establish: (i) was known to the Receiving Party prior to receiving the same from the Disclosing Party, free of any restrictions; (ii) is independently developed by the Receiving Party without reference to the disclosing party’s Confidential Information; (iii) is acquired by the Receiving Party from another source without restriction as to use or disclosure; or (iv) is or becomes part of the public domain through no fault or action of the Receiving Party. Notwithstanding anything to the contrary in this Agreement, the Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by applicable laws, rules, or regulations (“Law”), or by the order of a court or similar judicial or administrative body, provided that (if permitted by Law) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
9.3 Each party shall instruct its Personnel as to their obligations under this Agreement, and shall obtain from each of its Personnel their written acknowledgment and agreement to be bound by the terms and conditions of this Agreement prior to such Personnel being given access to any Confidential Information. Each party shall be responsible for its respective Personnel’s compliance with the terms of this Agreement.
9.4 Neither party may keep or use any Confidential Information after an engagement is completed or termination of this Agreement, except to the extent required by Law, or as authorized under Section 5.1. The obligations of this Section 9 shall survive the Term.
9.5 Customer understands and agrees any Feedback shall not be considered Confidential Information and that ModernLoop shall be free to use such Feedback for any lawful purpose without any further monetary payment.
9.6 Notwithstanding anything contained in this Section 9, ModernLoop may use and disclose Customer Data in accordance with Section 5.1 (including following expiration or termination of the Term).
- INDEMNIFICATION
10.1 By ModernLoop. ModernLoop will defend at its expense any suit brought against Customer, and will pay any settlement ModernLoop makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the ModernLoop Offering infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the ModernLoop Offering becomes, or in ModernLoop’s opinion is likely to become, the subject of a claim of infringement, ModernLoop may, at ModernLoop’s option: (a) procure for Customer the right to continue using the ModernLoop Offering; (b) replace the ModernLoop Offering with non-infringing software or services which do not materially impair the functionality of the ModernLoop Offering; (c) modify the ModernLoop Offering so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the ModernLoop Offering and Documentation. Notwithstanding the foregoing, ModernLoop will have no obligation under this Section 10.1 or otherwise with respect to any infringement claim based upon (i) any use of the ModernLoop Offering not in accordance with this Agreement or as specified in the Documentation; or (ii) any use of the ModernLoop Offering in combination with other products, equipment, software or data not supplied by ModernLoop (collectively, the “Exclusions” and each, an “Exclusion”). This Section 10.1 states the sole and exclusive remedy of Customer and the entire liability of ModernLoop, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
10.2 By Customer. Customer will defend at its expense any suit brought against ModernLoop, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, or (b) Customer’s breach or alleged breach of Sections 5.2. This Section 10.2 states the sole and exclusive remedy of ModernLoop and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
10.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit, subject to final approval of any settlement by the indemnified party; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
- TERM AND TERMINATION
11.1 Term. This Agreement will begin on the Effective Date and continue in full force and effect as long as any Order Form remains in effect, unless earlier terminated in accordance with the Agreement (the “Term”). Unless otherwise stated in the applicable Order Form, the term of an Order Form will begin on the effective date of the Order Form and continue in full force and effect for one (1) year, unless earlier terminated in accordance with the Agreement. The Order Form will not be subject to any implied or automatic renewals. The term of an Order Form may be renewed at the mutual written agreement of the parties.
11.2 Suspension. ModernLoop may suspend Customer’s or any or all Authorized Users’ access to the Services, in whole in part, if: (a) Customer or any Authorized User is using the Service in violation of this Agreement or any applicable law; (b) Customer’s or any Authorized Users’ systems or accounts have been compromised or unlawfully accessed; (c) suspension of the Services is necessary, in ModernLoop’s reasonable discretion, to protect the security of the Services or the infrastructure of ModernLoop; (d) suspension is required by applicable law; or (e) any fees owed by Customer (excluding amounts disputed in reasonable and good faith) are thirty (30) days or more overdue, provided ModernLoop has given Customer ten (10) or more days’ prior notice to cure same.
11.3 Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
11.4 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in the Section 9; and (c) any amounts owed to ModernLoop under this Agreement will become immediately due and payable. Sections 1, 3.2, 3.3, 3.5, 4, 7.2, 8, 9, 10, 11.3, 11.4, and 12 will survive expiration or termination of this Agreement for any reason.
11.5 Data Extraction. For twenty (20) days after the end of the Term, as applicable, ModernLoop will make Customer Data available to Customer through the ModernLoop Offering on a limited basis solely for purposes of Customer retrieving Customer Data, unless ModernLoop is instructed by Customer to delete such data before that period expires. After such period, ModernLoop will discontinue all use of Customer Data and destroy all copies of Customer Data in its possession.
- MISCELLANEOUS
12.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without reference to conflicts of laws principles. Both parties expressly agree that any action relating to this Agreement shall exclusively be brought in San Francisco County, California, and both parties irrevocably consent to the jurisdiction of the state and federal courts located in San Francisco County, California. Each party expressly waives any objection that it may have based on improper venue or forum non-conveniens to the conduct of any such suit or action in any such court. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
12.2 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from ModernLoop, or any products utilizing such data, in violation of the United States export laws or regulations.
12.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
12.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.5 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
12.6 Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its access and use of the Services, Licensed Material and Documentation and its provision of the Customer Data to ModernLoop.
12.7 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
12.8 Independent Contractors. Customer’s relationship to ModernLoop is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of ModernLoop.
12.9 Notices. All notices required or permitted under this agreement must be delivered in writing, if to ModernLoop, by emailing legal@modernloop.io and if to Customer by emailing the Customer Point of Contact email address listed on the Cover Page, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Cover Page by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
12.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
12.11 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the ModernLoop.
