PipeCandy Platform and Platform-Based Services Agreement

Last modified: December 10, 2019

PLEASE READ THIS AGREEMENT (THIS "Agreement") CAREFULLY. BY USING ANY OF THE PRODUCTS OR SERVICES OF PIPECANDY INC., A DELAWARE CORPORATION ("PipeCandy"), YOU:

  • AGREE ON BEHALF OF YOURSELF AND THE ENTITY THAT EMPLOYS OR ENGAGES YOU ("Customer") THAT THIS AGREEMENT GOVERNS YOUR AND CUSTOMER'S USE OF PIPECANDY'S PRODUCTS AND SERVICES,
  • AGREE THAT THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND CUSTOMER, AND
  • REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO MAKE THE ABOVE AGREEMENTS ON BEHALF OF CUSTOMER.

IF YOU OR CUSTOMER DO NOT AGREE TO THIS AGREEMENT, YOU AND CUSTOMER SHALL NOT, AND SHALL HAVE NO RIGHT TO, USE ANY OF THE PRODUCTS OR SERVICES OF PIPECANDY.
BY ACKNOWLEDGING ACCEPTANCE OF THIS AGREEMENT, YOU, ON BEHALF OF YOURSELF AND CUSTOMER, AGREE TO BE BOUND BY THIS AGREEMENT.

  1. Definitions. A capitalized term not otherwise defined in this Agreement shall have the following meaning:
    1. "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, but only for so long as such control exists, and "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.
    2. "Authorized Users" mean natural persons who are employees or consultants of Customer, are authorized by Customer to use the PipeCandy Platform, Platform-Based Services and/or PipeCandy Insights, as applicable, solely for the internal business use of Customer and its wholly owned subsidiaries, and if applicable, have been supplied user identification and passwords by Customer for use of the PipeCandy Platform.
    3. "Customer Data" means information regarding marketing, sales, investment, acquisition, partnership prospects (collectively 'Prospects') for Customer's business, case studies for Customer's products and services, and Customer's copyrights, trademarks and logos, in each case, provided by Customer electronically or in writing to PipeCandy and received by PipeCandy.
    4. "Documentation" means the published user guides and manuals provided or made available with the PipeCandy Platform, as modified by PipeCandy from time to time.
    5. "Effective Date" means the date that Customer accepts this Agreement.
    6. "Evaluation License" means a license of the PipeCandy Platform on an evaluation, pilot or trial basis pursuant to Section 2.3.
    7. "Order Document(s)" means an order confirmation of PipeCandy or its equivalent, which may include an order submitted via PipeCandy's website or mutually signed order form, which is accepted by PipeCandy, but shall exclude any pre-printed or linked terms and conditions set forth in such document that are in addition to, inconsistent or in conflict with, or different than, this Agreement.
    8. "PipeCandy Platform" means PipeCandy's insights platform for generating, obtaining, enriching, organizing, qualifying and providing PipeCandy Insights to Customer, including the Software.
    9. "Platform License" means a license of the PipeCandy Platform pursuant to Section 2.1.
    10. "Platform Based-Services" means the provision of PipeCandy Insights by PipeCandy to Customer without Customer directly licensing the PipeCandy Platform, and related services.
    11. "PipeCandy Insights" means data, intelligence, insights and other information regarding companies, generated, obtained, enriched, organized, qualified and provided to Customer through the PipeCandy Platform or Platform-Based Services, which are set forth in Insight Records.
    12. "Insight Record" means PipeCandy Insights for a single entity (including but not limited to a business, unit of a business, website, app or any other form, medium or channel through with an entity conducts transactions).
    13. "Software" means the PipeCandy workflow software powering the PipeCandy Platform in object code form only, and any bug fixes, patches, modifications and other maintenance releases to such software made generally commercially available by PipeCandy to its customers, which are licensed to Customer pursuant to this Agreement.
    14. "Term" means for a Platform License, the period of time during which the PipeCandy Platform is licensed to Customer as set forth in the Order Document(s), and for an Evaluation License, the applicable evaluation, pilot or trial term as agreed by PipeCandy in each case, unless earlier terminated pursuant to this Agreement. For a Platform License only, after the initial term and unless earlier terminated pursuant to this Agreement, this Agreement and the corresponding Order Document(s) shall automatically renew for consecutive renewal terms of 12 months each at the established pricing as of the end of the immediately prior term, unless either party provides the other party with written notice of termination at least 30 days prior to the end of this Agreement's then-current term.
  2. PipeCandy Products and Services.
    1. Platform License. If Customer is obtaining a Platform License as set forth in the Order Document(s), then subject to Customer's compliance with this Agreement, PipeCandy grants Customer a non-exclusive, non-transferable, non-sublicensable, worldwide, revocable license (i) to install the Software, (ii) to access and use the PipeCandy Platform for up to the maximum number of Authorized Users and Insight Records set forth in the Order Document(s), and (iii) to use the Documentation for such use, in each case, solely for the internal business use of Customer and its wholly owned subsidiaries for marketing and sales prospecting during the Term unless earlier terminated.
    2. Platform-Based Services. If Customer is obtaining Platform-Based Services as set forth in the Order Document(s), then subject to Customer's compliance with this Agreement, PipeCandy agrees to provide the maximum number of Insight Records and/or related services set forth in the Order Document(s) to Customer solely for the internal business use of Customer and its wholly owned subsidiaries, specifically for reasons as mentioned in the order document(s). Customer agrees not to resell PipeCandy Insights, software or work products from PipeCandy's platform based services.
    3. Evaluation. If Customer is participating in a PipeCandy evaluation, pilot or trial as set forth in the Order Document(s), then subject to Customer's compliance with this Agreement, (i) with respect to an Evaluation License, PipeCandy grants Customer a non-exclusive, non-transferable, non-sublicensable, worldwide, revocable license (a) to install the Software, (b) to access and use the PipeCandy Platform for up to the maximum number of Authorized Users and Insight Records set forth in the evaluation, pilot or trial and (c) to use the Documentation for such use, and (ii) with respect to an evaluation of the Platform-Based Services, PipeCandy agrees to provide the sample set of Insight Records set forth in the evaluation, pilot or trial to Customer, for each of (i) and (ii) above, only for demonstration, evaluation and training purposes solely for the internal business use of Customer and its wholly owned subsidiaries for marketing and sales prospecting during the applicable evaluation, pilot or trial term unless earlier terminated. Customer, at its option, may convert an Evaluation License into a Platform License pursuant to an Order Document.
    4. Service Level and Support. PipeCandy will use commercially reasonable efforts to make the PipeCandy Platform available to Customer 24 hours a day, seven days a week in accordance with this Agreement during the Term unless earlier terminated. Customer acknowledges and agrees that such availability is subject to planned maintenance downtime, and any unavailability caused by urgent maintenance or circumstances beyond PipeCandy's control. PipeCandy agrees to provide the level of PipeCandy Platform support contracted by Customer in accordance with PipeCandy's then-current published support guidelines. PipeCandy may install from time to time bug fixes, patches, modifications and other maintenance releases to the PipeCandy Platform as made commercially available to its customers.
    5. Government Customer. If Customer is the United States government, or anyone that is licensing the PipeCandy Platform pursuant to an United States government contract or with United States government funds, PipeCandy is licensing the PipeCandy Platform and Documentation in accordance with the following: The PipeCandy Platform and Documentation are "commercial items" as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.211, 12.212, 227.7102-1 through 227.7102-3 and 227.7202-1 through 227.7202-4, including its successor provisions, as applicable, all government end users acquire only those rights in the PipeCandy Platform and Documentation that are expressly granted in this Agreement. In the case of any other government, PipeCandy's rights are protected to the maximum extent possible as set forth in this Agreement, but in any event to at least the same extent they would be protected under the immediately preceding sentences.
  3. Restrictions and Requirements.
    1. Accounts. Customer is solely responsible for (i) maintaining the confidentiality of its administrator and user credentials, passwords and keys associated with its PipeCandy accounts, (ii) properly configuring and using the PipeCandy Platform and Platform-Based Services in accordance with this Agreement, (iii) all activities that occur with respect to Customer's accounts regardless of whether the activities are undertaken by it, its employees, its consultants or its agents, and (iv) backing up and protecting the Customer Data. Customer is solely responsible for preventing unauthorized access to or use of the PipeCandy Platform and Platform-Based Services, and notifying PipeCandy promptly of any unauthorized access or use. Customer agrees to reasonably cooperate with any of PipeCandy's investigations into suspected or actual security issues and/or breaches of this Agreement.
    2. Competitive Use Prohibited. Customer shall not access or use the PipeCandy Platform or the Platform-Based Services if Customer is PipeCandy's competitor. Customer shall not access or use the PipeCandy Platform or Platform-Based Services to evaluate its functionality or performance for competitive or benchmarking purposes, including for developing or improving any similar application, product or service, or any similar feature or functionality of the PipeCandy Platform and/or Platform-Based Services.
    3. Proprietary Notices. Customer agrees not to remove or modify any trademarks, trade names, service marks, service names, logos or brands, or copyright or other proprietary notices on the PipeCandy Platform, Software or Documentation, or add any other markings or notices to the PipeCandy Platform, Software or Documentation.
    4. Use. Customer agrees to use, and to ensure that its Authorized Users use, the PipeCandy Platform, Platform-Based Services and PipeCandy Insights in accordance with this Agreement, the Documentation and applicable law. Customer is solely responsible for the conduct of Customer and its Authorized Users in their respective use of the PipeCandy Platform, Platform-Based Services and PipeCandy Insights, and in their respective communications with prospects while using the PipeCandy Insights. Customer agrees not to (and not to authorize any third party to) (i) use the PipeCandy Platform, Platform-Based Services or PipeCandy Insights or permit the PipeCandy Platform, Platform-Based Services or PipeCandy Insights to be used to perform any services for a third party on a service provider, hosted, services bureau, time sharing or other basis, (ii) use the PipeCandy Platform, Platform-Based Services and PipeCandy Insights or permit the PipeCandy Platform, Platform-Based Services and PipeCandy Insights to be used (1) in violation of any access or use restrictions contained in the PipeCandy Insights or otherwise communicated in writing to Customer, (2) for any purpose that is illegal, infringing, libelous, tortious, fraudulent or deceptive, or (3) to cause abuse, harm, harassment, distress, torts or violation of any rights of any persons, (iii) use the PipeCandy Insights for the purpose of compiling, supplementing or amending any mailing list, business directory, or like compilation of information that is distributed to a third party, (iv) use the PipeCandy Insights to market products or services of any kind to individual consumers, (v) use the PipeCandy Insights in evaluating any consumer with respect to credit worthiness, a financial, insurance or employment decision, or with respect to eligibility for any government-granted license or benefit, (vi) knowingly upload or permit the PipeCandy Platform to be used to upload any software viruses or other harmful or deleterious computer code, files or programs such as trojan horses, worms, time bombs or cancelbots, (vii) knowingly use or permit the use of any software, hardware, application or process that interferes with the PipeCandy Platform, interferes with or disrupts machines or networks connected to the PipeCandy Platform, or violates the regulations, policies or procedures of such machines or networks, (viii) intentionally tamper with or breach the security of the PipeCandy Platform, (ix) release the results of any evaluation of the PipeCandy Platform or Platform-Based Services to any third party without prior written approval of PipeCandy, or (x) use manual or automated methods (including scraping to copy or export or screengrab insight records or search results from PipeCandy Platform) other than those specified in the order form (downloads or API hits as the case may be).
    5. Prohibited Data. Customer agrees that its data (including the Customer Data), which is transmitted through the PipeCandy Platform, shall not include any: (i) data that was obtained in violation of any applicable law, rule or regulation, (ii) "personal health information" as defined under the U.S. Health Insurance Portability and Accountability Act, (iii) financial account information, including bank account numbers, (iv) payment card data, including credit card or debit card numbers (other than Customer's payment card data for licensing the PipeCandy Platform), or (v) "personal identifiable information" as defined under applicable U.S. privacy laws.
    6. No Transfer. Customer agrees not to copy, distribute, publicly display, sublicense, lease, loan, rent, sell, resell or otherwise transfer the PipeCandy Platform, Software or Documentation, the Platform-Based Services or the PipeCandy Insights to any third party, including any data broker, ad network, ad exchange, or other advertising or monetization–related party, except that Customer may make copies of the Software, Documentation and PipeCandy Insights solely for the internal business use of Customer and its wholly owned subsidiaries in accordance with this Agreement, but no more than the amount reasonably necessary.
    7. No Modifications. Customer agrees not to modify, port, adapt, translate or create any derivative work based upon, the PipeCandy Platform, Software or Documentation.
    8. No Reverse Engineering. Customer agrees not to reverse engineer, decompile, disassemble or otherwise derive or attempt to derive the source code of the PipeCandy Platform, except for any non-waivable right to decompile the Software expressly permitted by applicable mandatory law.
    9. Compliance. During the Term and for 90 days thereafter, upon at least ten business days' prior written notice, PipeCandy may audit Customer's use of the PipeCandy Platform and Platform-Based Services to confirm compliance with this Agreement and the Order Document(s) on a confidential basis. Any audit will be conducted during regular business hours at Customer's facilities, will not unreasonably interfere with Customer's business activities and will be in compliance with Customer's reasonable security procedures. PipeCandy may conduct no more than one audit in any 12 month period. Customer agrees to reasonably cooperate with PipeCandy and any third party auditor of PipeCandy. Customer will promptly reimburse PipeCandy for all reasonable costs of the third party auditor if the audit reveals underpayment of more than five percent of Fees (as defined below) payable by Customer for the period audited.
  4. PipeCandy Insights. As between PipeCandy and Customer, Customer retains all right, title and interest in and to the Customer Data. Customer, and not PipeCandy, is solely responsible for the content, accuracy, reliability, quality and legality of the Customer Data, including the means by which Customer obtained the Customer Data. Customer hereby grants PipeCandy a non-exclusive, royalty-free, fully paid up, irrevocable, perpetual, transferable, worldwide license (with the right to sublicense) (i) to use the Customer Data for performing this Agreement and providing PipeCandy's products and services to Customer, (ii) to use the Customer Data with PipeCandy's PipeCandy Insights database to validate the PipeCandy Insights, (iii) to use the Customer Data with PipeCandy's PipeCandy Insights database to derive industry specific, context specific and other insights about prospects, and (iv) to use the Customer Data with PipeCandy's PipeCandy Insights database to conduct analytics on an aggregated and anonymized basis across the PipeCandy Platform, which insights and analytics PipeCandy may provide to its customers, including Customer. Customer acknowledges that any interactions with any prospects of Customer are solely between Customer and such prospects. Customer, and not PipeCandy, is solely responsible for any claim, damage, dispute, injury, liability, loss or expense arising or resulting from any such interactions. If there is a dispute between Customer and any prospect, Customer acknowledges that PipeCandy is under no obligation to assist in the resolution of or to resolve such dispute. If a third party provider of data contained in the PipeCandy Insights provides access or use restrictions for its data or requires PipeCandy to discontinue use of its data, PipeCandy may in turn direct Customer, as applicable, to access or use such data in accordance with such restrictions, or cease using such data and expunge such data from Customer's machines and networks, and Customer agrees to comply promptly with any such direction.
  5. Confidentiality. PipeCandy agrees not to disclose the Customer Data to any other customer of PipeCandy, to protect the Customer Data from unauthorized disclosure in the same manner as PipeCandy protects its own confidential information of a similar nature but with no less than reasonable care, and to store and transmit the Customer Data securely in accordance with industry standard measures. PipeCandy's obligation with respect to Customer Data does not apply if such information (i) was already known to PipeCandy at the time of disclosure by Customer free from any obligation of confidence, (ii) was disclosed to PipeCandy by a third party who had the right to make such disclosure without any confidentiality restriction, (iii) is, or through no fault of PipeCandy or with Customer's permission, has become, generally available to the public or (iv) was independently developed by PipeCandy. PipeCandy shall not share, sell or transfer any data or information regarding Customer's use of the PipeCandy Platform or Platform-Based Services to any third party.
  6. Ownership. The PipeCandy Platform, any Software backup copies that Customer makes, the Platform-Based Services and the Documentation are the intellectual property of and are owned by PipeCandy and its licensors, and are the confidential information of PipeCandy, which confidentiality Customer agrees to preserve and protect in the same manner as Customer protects its own confidential information of a similar nature but with no less than reasonable care. As between PipeCandy and Customer, PipeCandy retains title to and ownership of all right, title and interest in and to the PipeCandy Platform, Software, Platform-Based Services and Documentation, including all intellectual property and other proprietary rights therein and thereto, and subject to the limited licenses expressly granted by PipeCandy to Customer in Section 2, Customer does not have any right, title or interest in or to the PipeCandy Platform, Software, Platform-Based Services or Documentation. To the extent that the PipeCandy Platform contains or may be provided with components that are offered under an open source license, PipeCandy agrees to make that license available to Customer and the provisions of that license may expressly override some of the terms set forth in this Agreement for such component. All rights not expressly granted in this Agreement are reserved by PipeCandy and its licensors.
  7. Payment Terms. Customer agrees to pay PipeCandy the fees for the PipeCandy Platform licensed by Customer, Platform-Based Services, Insight Records purchased by Customer and support provided to Customer as set forth in the Order Document(s) (the "Fees"). Fees are in the currency set forth in the Order Document(s). All payment obligations are non-cancellable, and all Fees paid to PipeCandy are non-refundable except as expressly set forth in this Agreement. All Fees will be invoiced in advance in accordance with the Order Document(s). Unless otherwise set forth in the Order Document(s), all Fees are due and payable when invoiced and if not paid, PipeCandy may withhold providing the PipeCandy Platform license, Platform-Based Services, PipeCandy Insights and/or Insight Records to Customer. A Fee that is not paid by its respective due date shall be assessed a 1.5% late payment charge (or, if less, the highest legal rate under applicable law) for each month the Fee is not paid. Customer will reimburse PipeCandy for all reasonable costs incurred by PipeCandy for collecting any overdue amounts. Fees do not include any taxes, duties, fees or other amounts assessed or imposed by any government authority. Customer is solely responsible for paying all such taxes, duties, fees and other amounts, other than taxes imposed on PipeCandy's income. Customer will pay or reimburse PipeCandy for all such amounts upon demand, or provide evidence of payment or exemption. In the case of any withholding requirement, Customer will pay any required withholding itself and will not reduce the amount payable to PipeCandy on account thereof.
  8. Limited Warranty.
    1. Limited Warranty. PipeCandy warrants that the Software powering the PipeCandy Platform and Platform-Based Services will perform substantially in accordance with the Documentation during the Term when used in accordance with this Agreement and the Documentation. THIS LIMITED WARRANTY DOES NOT APPLY TO EVALUATION, PILOT OR TRIAL LICENSES, WHICH ARE MADE AVAILABLE "AS IS" AND WITHOUT WARRANTY FROM PIPECANDY, AND ANY USE THEREOF IS ENTIRELY AT CUSTOMER'S OWN RISK. This limited warranty is void if failure of the PipeCandy Platform has resulted from installation, use, maintenance or support not in accordance with the Documentation, modification by Customer or its Authorized Users, or a third party not authorized by PipeCandy, force majeure, or any breach of this Agreement by Customer or its Authorized Users. In the event of a warranty claim, Customer's sole and exclusive remedy and PipeCandy's entire obligation and liability shall be to re-perform, repair or replace the PipeCandy Platform, or if PipeCandy is unable to re-perform, repair or replace the PipeCandy Platform so that it complies with its warranty, to terminate this Agreement and to refund Customer a pro-rated amount of the applicable Fees for licensing the PipeCandy Platform pre-paid by Customer covering the whole months that would have remained, absent such early termination, in the Term following the effective date of such early termination. Any re-performed, repaired or replaced version of the PipeCandy Platform will be warranted for the remainder of the warranty period. All warranty claims must be made to PipeCandy in writing within such warranty period.
    2. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1, THE PIPECANDY PLATFORM, SOFTWARE, DOCUMENTATION, PLATFORM-BASED SERVICES AND PIPECANDY INSIGHTS ARE PROVIDED "AS IS" AND (i) PIPECANDY SPECIFICALLY disclaims ANY AND ALL warranties, whether express, implied, STATUTORY OR otherwise, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PIPECANDY DOES NOT WARRANT THAT THE PIPECANDY PLATFORM OR USE THEREOF WILL BE ERROR FREE, UNINTERRUPTED OR VIRUS FREE. PIPECANDY DOES NOT WARRANT THAT THE PIPECANDY PLATFORM, PLATFORM-BASED SERVICES, PIPECANDY INSIGHTS OR USE THEREOF WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS. PIPECANDY DOES NOT WARRANT THE CONTENT, ACCURACY, COMPLETENESS, RELIABILITY, QUALITY OR TIMELINESS OF THE PIPECANDY INSIGHTS, OR ANY OUTCOMES OR RESULTS FOLLOWING USE OF THE PIPECANDY INSIGHTS.
  9. Indemnification.
    1. Intellectual Property Infringement. PipeCandy, if notified promptly in writing and given authority, control, information and assistance at PipeCandy's expense for defense and settlement of same, shall defend Customer against any third party action, suit or proceeding brought against Customer so far as it is based on a claim that the use of the Software powering the PipeCandy Platform and Platform-Based Services infringes a United States patent or copyright that has been issued as of Customer's first date of use. In connection with such defense obligation, PipeCandy shall be solely responsible for (i) all attorneys' fees, and court or tribunal costs incurred by PipeCandy with respect to defense and settlement of such third party claim, (ii) any judgments, fines, costs and penalties awarded by any court or tribunal against PipeCandy and/or its customers, including Customer, for such third party claim and (iii) any amounts paid in settlement of such third party claim as mutually agreed by PipeCandy and the third party in such claim. If PipeCandy reasonably believes that Customer's use of the Software is likely to be enjoined, or if the Software is held to infringe such patent or copyright and all use of such Software by Customer is thereby enjoined, PipeCandy shall, at its expense and at its sole option, (i) procure for Customer the right to continue using the PipeCandy Platform, (ii) replace the PipeCandy Platform with other non-infringing services or software of substantially equivalent functionality or (iii) modify the PipeCandy Platform so that there is no infringement, provided that such modified services or software provides substantially equivalent functionality. If, in PipeCandy's reasonable opinion, the remedies above are infeasible or commercially impracticable, PipeCandy may, in its sole discretion, terminate this Agreement and refund Customer a pro-rated amount of the applicable Fees for the PipeCandy Platform pre-paid by Customer covering the whole months that would have remained, absent such early termination, in the Term following the effective date of such early termination. Customer shall not settle any matter without the prior written approval of PipeCandy.
    2. Exceptions. The indemnification obligation in this Section 9 will not apply to the extent the infringement is caused by any of the following: (i) the PipeCandy Platform is modified in an unauthorized manner by Customer or its Authorized Users, or a third party not authorized by PipeCandy, (ii) the PipeCandy Platform is combined by Customer or its Authorized Users with other software, hardware, application or process not authorized by PipeCandy, (iii) the PipeCandy Platform is used by Customer or its Authorized Users in violation of this Agreement or the Documentation, (iv) any third party deliverables or components contained within the PipeCandy Platform that are not provided by PipeCandy or (v) any materials, data or information, including the Customer Data, provided by Customer. THE INDEMNIFICATION OBLIGATION IN THIS SECTION 9 DOES NOT APPLY TO EVALUATION, PILOT OR TRIAL LICENSES, AND ANY USE THEREOF IS ENTIRELY AT CUSTOMER'S OWN RISK.
    3. Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND PIPECANDY'S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.
  10. Limitation of Liability. EXCEPT FOR BREACH OF CONFIDENTIALITY AND CUSTOMER'S MISAPPROPRIATION OF PIPECANDY'S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, BUSINESS, GOODWILL, REVENUE, USE OR OTHER ECONOMIC ADVANTAGE OR BUSINESS INTERRUPTION) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE PipeCandy Platform, SOFTWARE, DOCUMENTATION, PLATFORM-BASED SERVICES, PIPECANDY INSIGHTS OR USE THEREOF OR THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE EXCLUSIONS SET FORTH IN THE PRECEDING SENTENCE AND PIPECANDY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, EACH PARTY'S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID AND PAYABLE BY CUSTOMER FOR THE PipeCandy Platform AND PLATFORM-BASED SERVICES FOR THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. FOR CLARITY, THE ABOVE LIMITATIONS SHALL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER SECTION 7. No claim against PipeCandy may be brought more than one year after the facts giving rise to such claim have arisen. The limitations of liability and exclusions of damages in this Section 10 form an essential basis of the bargain between the parties and shall survive and apply even if any remedy specified in this Agreement is found to have failed its essential purpose.
  11. Marketing. Neither party may disclose the specific terms of this Agreement or issue a public statement or press release regarding this Agreement without the other party's prior written consent, but PipeCandy may identify Customer with its name and logo as its customer on PipeCandy's website and other marketing materials.
  12. Suspension; Termination.
    1. Suspension. In the event of any actual or threatened breach of this Agreement by Customer or its Authorized Users (including non-payment of fees), without limiting PipeCandy's other rights and remedies and notwithstanding anything in this Agreement to the contrary, PipeCandy may immediately suspend Customer's use of the PipeCandy Platform and/or Platform-Based Services.
    2. Termination. This Agreement may be terminated by a party upon written notice to the other party (i) if the other party breaches a material term of this Agreement that is uncured within 30 days (or, in the case of non-payment, five days) after delivery of notice of such breach, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors not dismissed within 30 days. PipeCandy may immediately terminate this Agreement upon any breach by Customer of Sections 3 or 5.
    3. Fees. Upon expiration of this Agreement, Customer will pay PipeCandy any unpaid amounts that are owed to PipeCandy for the Term. Upon termination of this Agreement based on Customer's breach (following any applicable cure period), Customer will pay PipeCandy any unpaid amounts that would have been owed to PipeCandy for the remainder of the then-current Term if such early termination had not occurred as well as any other amounts owed to PipeCandy under this Agreement, without limiting PipeCandy's other rights and remedies. Upon termination of this Agreement based on PipeCandy's breach (following any applicable cure period), PipeCandy will refund Customer any amounts pre-paid pursuant to this Agreement for the remaining full calendar months in the then-current Term.
    4. Effect. Upon expiration or termination of this Agreement, (i) the licenses granted by PipeCandy to Customer pursuant to this Agreement will cease immediately, (ii) Customer will immediately cease all use of the PipeCandy Platform, Software and Documentation, and Platform-Based Services, and delete or destroy (or, at PipeCandy's request, return) all Software, Documentation and other PipeCandy confidential information in its possession or control, and (iii) PipeCandy will have no further obligation to maintain or provide access to the Customer Data and will thereafter delete the Customer Data stored through the PipeCandy Platform.
    5. Survival. Sections 2.5, 3 through 7, 8.2, 9, 10, 12 and 13 will survive any expiration or termination of this Agreement.
  13. General.
    1. Parties. PipeCandy and Customer are independent contractors. Nothing in this Agreement shall be deemed to constitute a joint venture or partnership between the parties, nor constitute any party as the agent of the other party for any purpose, or entitle any party to commit or bind the other party in any manner. Except as expressly provided in this Agreement, nothing in this Agreement, express or implied, is intended to confer any rights or obligations upon any person or entity other than the parties hereto, PipeCandy's licensors and their respective successors and permitted assigns, and if this Agreement is governed by Singapore law, a person who is not a party to this Agreement (other than PipeCandy's licensors and their respective successors and assigns) has no right under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore, to enforce any term or condition of this Agreement or any Order Document.
    2. Governing Law, Arbitration and Attorneys' Fees. This Agreement shall be governed by the laws of: (i) Singapore if Customer's principal executive office as of the Effective Date is located in Asia (other than the India subcontinent), (ii) India if Customer's principal executive office as of the Effective Date is located in the India subcontinent, (iii) England if Customer's principal executive office as of the Effective Date is located in Europe or the Middle East, or (iv) California, United States if Customer's principal executive office as of the Effective Date is located in any other jurisdiction(s) not listed above. This Agreement shall not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any dispute regarding this Agreement will, upon written demand of a party, be resolved exclusively by final and binding arbitration. Arbitration will be conducted before a single neutral arbitrator exclusively in: (i) Singapore by the Singapore International Arbitration Centre pursuant to its rules of arbitration then in effect when Singapore law applies, (ii) Bangalore, India by arbitrators appointed pursuant to this Section pursuant to the Arbitration and Conciliation Act, 1996 then in effect when India law applies, (iii) England by the International Chamber of Commerce pursuant to its rules of arbitration then in effect when England law applies, or (iv) San Francisco, California, United States by the Judicial Arbitration and Mediation Service ("JAMS") pursuant to the United States Arbitration Act, 9 U.S.C., Section 1 et seq, and the Comprehensive Arbitration Rules and Procedures of JAMS then in effect when California law applies. The arbitration will be conducted and all evidence will be submitted in the English language. Each party shall bear its own costs and expenses, and the two parties will share equally the fees and costs of the arbitrator. The award rendered in the arbitration may be enforced in any court of competent jurisdiction. Notwithstanding anything in this Agreement to the contrary, PipeCandy shall have the right, at its election, to seek injunctive or other equitable relief in any court of competent jurisdiction in order to protect its proprietary or confidential information and to enforce or obtain compliance with the licenses granted under this Agreement without first submitting such matter to arbitration, which remedy will be cumulative and not exclusive. The parties hereby waive their respective rights to trial by jury in any action or proceeding regarding this Agreement. If any action is pursued to enforce this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs.
    3. Export Control Laws. Customer acknowledges that the PipeCandy Platform and Platform-Based Services may be controlled by the laws of one or more countries governing technology use and transfer, including U.S. Export Administration Regulations, and that diversion contrary to such laws is prohibited. Customer will not use or transfer any technology or data in violation of such laws. Customer represents that it is not, and is not acting on behalf of, (i) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions, or (ii) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and Customer will not permit the PipeCandy Platform and Platform-Based Services to be used for any purposes prohibited by law.
    4. Entire Agreement; Amendment; Waiver. This Agreement, together with the Order Document(s), is the parties' entire agreement with respect to its subject matter, and supersedes any prior communications, discussions, understandings or agreements. Any use of Customer's pre-printed forms, such as purchase orders, are for convenience only, and any pre-printed terms and conditions set forth in Customer's pre-printed forms that are in addition to, inconsistent or in conflict with, or different than, this Agreement shall be given no force or effect. Neither commencement of performance, nor failure to object to any additional or different terms and conditions from Customer, nor delivery, by, in each case, PipeCandy shall constitute an acceptance of any terms and conditions proposed by Customer that are in addition to, inconsistent or in conflict with, or different than, this Agreement. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived with the written consent of duly authorized representatives of the parties.
    5. Severability. If any provision of this Agreement is held to be unenforceable, the unenforceable provision shall be replaced by an enforceable provision that comes closest to the parties' intentions underlying the unenforceable provision, and the remaining provisions of this Agreement shall remain in full force and effect.
    6. Subcontracts; Assignment. PipeCandy may subcontract the PipeCandy Platform hosting to its authorized subcontractor without Customer's consent and without providing notice, provided that PipeCandy will remain responsible for its subcontractor's compliance with this Agreement. PipeCandy may assign or transfer this Agreement, in whole or in part, to any Affiliate or in connection with any acquisition, consolidation, merger, reorganization, transfer of all or substantially all of its assets or other business combination, or by operation of law without Customer's consent and without providing notice. Customer may assign or transfer this Agreement in whole to an Affiliate or by business combination, operation of law or otherwise without PipeCandy's prior written consent and with written notice to PipeCandy. Subject to the foregoing, this Agreement will bind and benefit the parties and their respective successors and permitted assigns.
    7. Force Majeure. PipeCandy shall not be liable for its inadequate performance caused by any condition beyond the reasonable control of PipeCandy, including accidents, acts of God or nature, government acts, civil unrest, acts of war or terrorism, strikes or other labor problems, failures in computer, hardware, telecommunications, internet service provider or hosting facilities, power shortages and denial of service attacks.
    8. Notices. All notices shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or: (i) when sent, if sent by email during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient's next business day, (ii) 10 days after having been sent by registered or certified mail, return receipt requested, postage prepaid, from one country to another country, or three days after having been sent by registered or certified mail, return receipt requested, postage prepaid, within the same country, or (iii) five business days after deposit with an internationally recognized express courier, freight prepaid, with written verification of receipt, from one country to another country, or one business day after deposit with an internationally recognized express courier, freight prepaid, with written verification of receipt, within the same country. All notices shall be sent to the parties at their respective address in the Order Document(s), or to such other address as subsequently notified in accordance with this Section 13.8.