This SixFifty Master Subscription Agreement (this “Agreement”) is made and entered into between SixFifty Technologies, LLC, a Delaware limited liability company (“SixFifty”) and Customer (defined below). This Agreement sets forth the terms pursuant to which Customer will be permitted to use and receive access to certain Products (defined in Section 2(a)) identified in one or more Order Forms (defined in Section 2(a)). SixFifty and Customer are each individually referred to as a “Party” and are collectively referred to as the “Parties.”

        BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BUTTON INDICATING YOUR ACCEPTANCE, EXECUTING THIS AGREEMENT, EXECUTING AN ORDER FORM OR OTHER DOCUMENT THAT REFERENCES THIS AGREEMENT, USING (OR MAKING ANY PAYMENT FOR) A PRODUCT (DEFINED IN SECTION 2(a)), OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU: (A) AGREE TO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (“CUSTOMER”); AND (B) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER AND ITS AFFILIATES (DEFINED IN SECTION 4(a)) TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND ARE NOT AUTHORIZED TO ACCESS OR USE THE PRODUCTS.

  1. Disclaimer. Customer understands and agrees to the legal disclaimer located at https://www.sixfifty.com/terms/legal-disclaimer. Without limiting such disclaimer, or the additional disclaimers set forth in Section 10 of this Agreement, Customer agrees as follows:
    1. Not a Law Firm. SixFifty is not a law firm and does not provide legal advice or represent Customer in any way. Use of the Products does not create an actual or potential client relationship with SixFifty, any of its employees, any Affiliate of SixFifty, including any affiliated law firm or attorney, or constitute legal advice.
    2. No Attorney-Client Privilege. Customer agrees that any information Customer provides to SixFifty is not protected by attorney-client privilege or as attorney work product. Such information is not a substitute for the advice of an attorney. SixFifty disclaims all liability in respect of actions taken, or not taken, based on any or all materials made available to Customer by SixFifty, to the fullest extent permitted by law. Customer understands that it should not act or refrain from acting upon information provided by SixFifty without seeking professional legal counsel.
    3. Customer Responsibility. Customer understands that Customer’s compliance with applicable laws and regulations may be dependent on circumstances unique to Customer and not contemplated within the Products, and Customer agrees that the Products may not be sufficient, alone or in combination, to ensure compliance with any law, regulation, or contractual or professional obligation. Customer understands and agrees that SixFifty does not: (a) review Customer’s documents or any information provided by Customer for accuracy or legal sufficiency; (b) draw legal conclusions; (c) provide legal advice; or (d) apply the law to the facts of Customer’s particular situation. Customer understands and agrees that SixFifty does not and cannot ensure that the documents generated through use of the web application will be enforceable or valid in all jurisdictions, or adequately address Customer’s needs.
    4. Customer Inputs. Customer is solely responsible for providing correct, complete, and up-to-date information to SixFifty. SixFifty does not verify the accuracy or completeness of any information provided by Customer. Customer acknowledges that the Products depend on Customer performing its obligations under this Agreement. SixFifty shall not be liable for any loss arising from Customer’s failure to fulfil its obligations under this Agreement.
    5. Customer Personal Data. In respect of any personal data shared with SixFifty by Customer, SixFifty assumes that Customer has the necessary authority to permit SixFifty to use and transfer such personal data in accordance with this Agreement, including consent where applicable or required by law. In no event shall Customer disclose sensitive personal data to SixFifty, absent express written amendment to this Agreement. Customer is solely liable for assessing risk with respect to the use, disclosure, storage, transfer, and other processing of such data.

     

  2. Structure
    1. Products and Services; Order Forms. This Agreement sets forth the terms and conditions on which SixFifty will make available to Customer the SixFifty software-as-a-service legal document automation platform, including its related services and solutions (the “Online Service”), and certain related Delivered Materials (defined in Section 3(c)) and Implementation Services (defined in Section 3(d)) (the Online Service and such related products and services, collectively, the “Products”), as expressly identified in a quote, proposal, order form, statement of work, or other physical or digital ordering form that (a) is accepted by the Parties and (b) expressly references and incorporates these Master Terms (defined in Section 2(c)) (each, an “Order Form”). Each Order Form is subject to the terms of, and is deemed incorporated into, this Agreement.
    2. Order Form Term. Unless earlier terminated in accordance with this Agreement or the applicable Order Form, each Order Form will continue for the initial term specified in such Order Form (“Initial Order Form Term”) and, if such Order Form provides for automatic renewal, then, unless either Party provides the other with timely notice of non-renewal, upon the date of expiration of the then-current term, such Order Form will automatically renew for successive terms (each, a “Renewal Term”) equal in length to the Initial Order Form Term unless otherwise specified in the Order Form (the Initial Order Form Term and each Renewal Term, if any, collectively, the “Order Form Term” of such Order Form). Notice of non-renewal of an Order Form must be provided by a Party at least 30 days prior to the end of the Initial Order Form Term or then-current Renewal Term, as applicable. Renewal of any Order Form may be conditioned on and subject to Customer’s agreement to the then-current version of these Master Terms (defined in Section 2(c)). Termination of this Agreement will terminate all Order Form Terms then in effect. Customer acknowledges that its access to the Products may be automatically disabled upon expiration of the applicable Order Form Term.
    3. Order of Precedence. Any conflict between an Order Form and Sections 1 through 12 of this Agreement (the “Master Terms”) will be resolved according to the following order of precedence: (1) the Order Form; and (2) the Master Terms.

     

  3. Online Service; Accounts; Delivered Materials
    1. Access to Services; Modules. The Online Service includes multiple bundles of features and functionalities to which subscriptions may be purchased by Customer (each such bundle, a “Module”). Subject to Customer’s timely payment of all fees in accordance with Section 6, Customer may access and use the Online Service and those Module(s) for which Customer has purchased a subscription under one or more Order Forms, solely in accordance with the restrictions set forth in this Agreement. Customer acknowledges that not all of the features or functionalities of the Online Service may be available to Customer at all times, irrespective of whether any such feature or functionality is described in the Service Documentation, and that access to such features or functionality may require Customer to subscribe to additional Modules.
    2. Accounts. To use the Online Service, Customer must register an administrator account on the Online Service. During the account registration process, Customer will be asked to provide certain information, which may include personal information, contact information, and details concerning Customer’s business. Customer represents and warrants that all such information is accurate at the time first provided to SixFifty by Customer, and Customer will keep such information up-to-date at all times during the Term (defined in Section 7(a)). Customer is responsible for maintaining the confidentiality of its account and password for the Online Service. If Customer believes that Customer’s account is no longer secure, then Customer will immediately notify SixFifty. Customer may be permitted to designate additional authorized users (“Registered Users”) in connection with its use of certain Modules, including Modules that include training or request tracking features. Such Registered Users will be required to configure individual accounts on the Online Service and accept SixFifty’s then-current online terms of service. Customer will ensure that each such Registered User: (a) is an employee, contractor, or agent of Customer who has a need to access the Online Service consistent with the purpose of this Agreement; and (b) uses the Online Service in compliance with this Agreement. Customer accepts responsibility for all activities that occur under Customer’s administrator account and each Registered User’s account. Customer acknowledges that SixFifty collects, stores, and uses certain data about visitors to its websites and users of the Online Service (including Registered Users), as further described in SixFifty’s Privacy Policy available at https://www.sixfifty.com/terms/privacy-notice.
    3. Delivered Materials. As part of the Online Service, SixFifty will make available to Customer certain (a) question-and-answer walkthroughs, information summaries, generated legal documents, and other output resulting from Customer’s interaction with the Online Service (“Output”), (b) documentation, help articles, and other visual or written information related to the Online Service (“Service Documentation”), and API functionality or code snippets (“Integration Code”), each as may be applicable. The Output, Service Documentation, and Integration Code are, together, the “Delivered Materials.” SixFifty hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right and license (i) to use the Output solely for Customer’s internal business purposes, subject to the terms of this Agreement; (ii) to use the Service Documentation solely in connection with Customer’s exercising its rights in the Products during the Term; and (iii) to use the Integration Code to enable integration between the Online Service and one or more Customer-owned or Customer-controlled websites or digital properties during the Term.
    4. Implementation Support. At SixFifty’s discretion, or as may be agreed to in writing between the Parties, SixFifty may provide Customer with certain services to assist Customer with its implementation of the Online Service (“Implementation Services”). Customer will make available in a timely manner all information and resources reasonably requested by SixFifty to enable SixFifty to perform the Implementation Services. Customer understands and agrees that Implementation Services do not constitute legal advice or guidance.

     

  4. Restrictions; Unauthorized Use
    1. Fair Use; Use Restrictions. SixFifty is providing the Products to the Customer for normal, fair, and reasonable use. Customer may not resell or otherwise commercially distribute the Products to third-parties except as may be expressly authorized by SixFifty in an Order Form. Customer acknowledges and agrees that any mass downloading of Products outside of Customer’s ordinary course of business is prohibited. Except as otherwise expressly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: rent, lease, or otherwise permit third parties (or other persons not authorized by this Agreement) to use a Product; use a Product to provide services to third parties (e.g., as a service bureau); use a Product for any benchmarking purpose or in connection with the development of any product that is competitive with, or derivative of, a product of SixFifty or its Affiliates; circumvent or disable any security or other technological features or measures of the Online Service or use the Online Service in a manner that SixFifty reasonably believes poses a threat to the security of SixFifty-controlled computer systems; modify, translate, reverse engineer, decompile, disassemble, or otherwise derive the source code or the underlying ideas, algorithms, structure, or organization from the Online Service (except to the extent that applicable law prevents the prohibition of such activities); use or access the Online Service in any manner that materially impacts or burdens SixFifty or SixFifty’s servers and other computer systems, or that interferes with SixFifty’s ability to make available any Product to any third party; use a Product in violation of any acceptable use policy applicable to such Product and made available by SixFifty to Customer, as may be updated from time to time; remove any attributions or other similar markings from a Product (e.g., copyrights notices); or provide SixFifty with personal data unless required pursuant to an Order Form, or expressly requested by SixFifty. Customer will use the Products in compliance with all applicable laws and regulations, and will comply with all applicable data protection laws and regulations in relation to any personal data (or equivalent term as defined under applicable law) shared by Customer with SixFifty pursuant to this Agreement. “Affiliate” means any corporation, partnership, joint venture, or other entity: (i) as to which a Party owns or controls, directly or indirectly, stock or other interest representing more than 50% of the aggregate stock or other interest entitled to vote on general decisions reserved to the stockholders, partners, or other owners of such entity; (ii) if a partnership, as to which a Party or another Affiliate is a general partner; or (iii) that a Party otherwise is in common control with, controlled by, or controls in matters of management and operations.
    2. Protection against Unauthorized Use. Customer will prevent any unauthorized use of the Products and Delivered Materials and will immediately notify SixFifty in writing of any unauthorized use of which Customer becomes aware, including by Registered Users. Customer will immediately terminate any unauthorized use by persons having access to a Product through Customer.

     

  5. Ownership; Intellectual Property Rights
    1. Ownership. As between the Parties, Customer acknowledges that SixFifty owns all right, title, and interest, including all intellectual property rights, in and to the Products (collectively, “SixFifty IP”) and SixFifty reserves all rights not expressly granted to Customer under this Agreement. To the extent that Customer has or obtains any ownership interest in any SixFifty IP, Customer hereby assigns to SixFifty all right, title, and interest, including all intellectual property rights, in and to the SixFifty IP. Customer will not undertake any act or omission that would impair SixFifty’s (or its licensors’) rights in any SixFifty IP or any other materials, information, processes, or subject matter owned by SixFifty or its licensors.
    2. Customer Data. As between SixFifty and Customer, Customer retains all right, title, and interest, including all intellectual property rights, in and to: (a) any data or information that Customer uploads or inputs into a Product or otherwise makes available to SixFifty, including in connection with Customer’s use of a Product; and (b) data that is generated and made available to Customer by any Product through use of the data described in part (a) above ((a) and (b) collectively, “Customer Data”). Customer hereby grants SixFifty a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, irrevocable license to use, process, transmit, store, and disclose the Customer Data: (a) during the Term, for the purpose of exercising SixFifty’s rights and performing its obligations under this Agreement; and (b) in perpetuity, in a form that does not identify Customer as the source thereof, for its business purposes, including to develop and improve SixFifty’s and its Affiliates’ products and services. Customer represents and warrants that Customer has all rights necessary to grant SixFifty the licenses set forth in this section and to enable SixFifty to exercise its rights under the same without violation or infringement of the rights of any third party. As between the Parties, SixFifty owns all right, title, and interest, including all intellectual property rights, in and to the Products, and any improvements to any SixFifty products or services made as a result of SixFifty’s use, processing, or generation of Customer Data. Customer understands that SixFifty uses third-party vendors to process certain data, and that SixFifty may transfer Customer Data to such third-party vendors, including in connection with data storage and processing.
    3. Feedback. If Customer provides any feedback to SixFifty concerning the functionality, characteristics, or performance of a Product (including identifying potential errors and improvements), Customer hereby assigns to SixFifty all right, title, and interest in and to the feedback, and SixFifty is free to use the feedback without payment or restriction.
    4. Promotional Materials. Customer authorizes SixFifty to use its name, logo, or trademark without notice or consent in connection with promotional materials that SixFifty may disseminate to the public. Such materials may include, but are not limited to, brochures, internet websites, press releases, and other advertising relating to the fact that SixFifty provides services to Customer. Such materials may be developed, disseminated, and distributed without Customer’s review. Nothing herein obligates SixFifty to use Customer’s name, logo, and/or trademark in any promotional materials. Parties shall not, and shall not permit their Affiliates to, issue and press release or other public disclosure, that discloses any Customer Data owned by Customer or the details of the financial aspects of this Agreement.

     

  6. Fees and Payment
    1. Fees and Payment Terms. Customer will pay SixFifty the fees and any other amounts owing under this Agreement as specified in the applicable Order Form. Unless otherwise specified in such Order Form, Customer will pay all amounts due within 30 days after the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by SixFifty to collect any amount that is not paid when due. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason.
    2. Recurring Payments. Customer acknowledges that its subscription may include automatically recurring payments for periodic charges, and to the extent indicated in an Order Form authorizes SixFifty to periodically charge, on a going-forward basis and until cancellation of Customer’s account, those periodic charges. Customer will be charged automatically on the Order Effective Date, and on the first day of each billing cycle thereafter, for all applicable fees and taxes for the applicable subscription period. The subscription will continue unless and until Customer’s account or subscription is canceled. Customer must cancel its subscription before the notice of non-renewal deadline to avoid billing of the next periodic charge. SixFifty will bill the periodic charges to the payment method Customer provides to SixFifty during registration (or to a different payment method if Customer updates its payment information). Customer may cancel its subscription by contacting help@sixfifty.com.
    3. Taxes. Other than net income taxes imposed on SixFifty, Customer will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from this Agreement. Customer will pay any additional Taxes as are necessary to ensure that the net amounts received by SixFifty after all such Taxes are paid are equal to the amounts to which SixFifty would have been entitled in accordance with this Agreement if such additional Taxes did not exist.

     

  7. Term and Termination
    1. Term. This Agreement will remain in effect until terminated in accordance with this section (the “Term”).
    2. No Order Form. At any time when no Order Form is in effect, either Party may terminate this Agreement upon 30 days’ advance written notice to the other Party.
    3. Early Termination Fee. Early termination of an Order Form by Customer in violation of the terms of this Agreement or the Order Form will be subject to an early termination fee equal to 50% of the subscription cost of the Initial Order Form Term or a Renewal Term, whichever is greater. The early termination fee will be due and payable by Customer in accordance with the terms of Section 6.
    4. Termination for Material Breach. Either Party may terminate this Agreement or one or more Order Forms if the other Party does not cure its material breach of this Agreement or the applicable Order Form(s) within 30 days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this subsection will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the 30-day cure period. Notwithstanding the foregoing, SixFifty may immediately terminate this Agreement upon notice to Customer if SixFifty reasonably believes that Customer has violated Section 4(a), has attempted to assign or sublicense any right granted by this Agreement except as expressly permitted herein, or has otherwise taken any actions that threaten or challenge SixFifty’s intellectual property rights, including rights in and to any Product. Without limiting any other provision of this subsection, if Customer fails to timely pay any fees, SixFifty may, without limitation to any of its other rights or remedies, suspend Customer’s access to all Products until it receives all amounts due.
    5. Termination for Bankruptcy or Insolvency. Either Party may terminate this Agreement if the other Party ceases to do business in the ordinary course, or is declared bankrupt, or is the subject of any liquidation or insolvency proceeding which is not dismissed within 120 days, or makes any assignment for the benefit of creditors.
    6. Post-Termination Obligations. If this Agreement is terminated for any reason, Customer will pay to SixFifty any fees or other amounts that have accrued prior to the effective date of the termination, any and all liabilities accrued prior to the effective date of the termination will survive, and Customer will provide SixFifty with a written certification signed by an authorized Customer representative certifying that all use of Products by Customer has been discontinued and that all Confidential Information of SixFifty (defined in Section 8(b) below) in Customer’s possession or control has been returned or destroyed.
    7. Survival. Notwithstanding anything to the contrary herein, Sections1, 2, 3(c)(i) and (ii), 4, 5, 6, 7(f), 8, 9, 10, 11, and 12 will survive termination or expiration of this Agreement.

     

  8. Confidentiality
    1. Definition. As used herein, “Confidential Information” means all confidential information disclosed by or otherwise obtained from a Party (“Disclosing Party”) to or by the other Party (“Receiving Party”), whether orally, visually, or in writing, that is designated as confidential. Without limiting the foregoing, the Confidential Information of SixFifty includes all Service Documentation and Output, and the technical characteristics of the Online Service, and the Confidential Information of Customer includes all non-public information shared with SixFifty concerning Customer’s storage, system, and network architectures. However, “Confidential Information” does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
    2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will: (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (b) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such 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 such Confidential Information.

     

  9. Warranties and Disclaimer
    1. Mutual Warranties. Each Party represents and warrants to the other that: this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; and no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement.
    2. General Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION OR AN ORDER FORM, SIXFIFTY MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. SIXFIFTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. SIXFIFTY DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PRODUCTS. SIXFIFTY DOES NOT WARRANT THAT THE PRODUCTS ARE ERROR-FREE OR THAT OPERATION OF THE PRODUCTS WILL BE SECURE OR UNINTERRUPTED. SIXFIFTY DOES NOT WARRANT THAT ANY INFORMATION PROVIDED BY OR IN CONNECTION WITH A PRODUCT IS ACCURATE OR COMPLETE OR THAT ANY SUCH INFORMATION WILL ALWAYS BE AVAILABLE. SIXFIFTY EXERCISES NO CONTROL OVER, AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF, CUSTOMER’S USE OF THE PRODUCTS, AS FURTHER SET FORTH IN SECTION 1 OR OTHERWISE HEREIN.

     

  10. Indemnification
    1. Defense by SixFifty. SixFifty will, at its expense, either defend Customer from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Customer alleging that the Online Service infringes or misappropriates any patent, copyright, or trademark if: Customer gives SixFifty prompt written notice of the Claim; Customer grants SixFifty full and complete control over the defense and settlement of the Claim; Customer provides assistance in connection with the defense and settlement of the Claim as SixFifty may reasonably request (at SixFifty’s expense); Customer complies with any settlement or court order made in connection with the Claim; and Customer takes all commercially reasonable steps to mitigate losses which would otherwise be indemnified under this Agreement. Customer will not defend or settle any Claim subject to indemnification under this subsection without SixFifty’s prior written consent. Customer will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but SixFifty will have sole control over the defense and settlement of the Claim.
    2. Indemnification by SixFifty. SixFifty will indemnify Customer from and pay all damages, costs, and attorneys’ fees finally awarded against Customer in any Claim under Section 10(a); all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Customer in connection with the defense of a Claim under Section 10(a) (other than attorneys’ fees and costs incurred without SixFifty’s consent after SixFifty has accepted defense of the Claim); and all amounts that SixFifty agrees to pay to any third party to settle any Claim under Section 10(a).
    3. Exclusions from Obligations. SixFifty will have no obligation under this section for any infringement or misappropriation to the extent that it arises out of or is based upon any of the following (the “Excluded Claims”): use of the Online Service in combination with other products or services not provided by SixFifty if such infringement or misappropriation would not have arisen but for such combination; any customizations to the Online Service made to comply with designs, requirements, or specifications required by or provided by Customer, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; use of the Online Service by Customer for purposes prohibited by, not intended by, or outside the scope of, the license granted to Customer; or Customer’s failure to use the Online Service in accordance with instructions provided by SixFifty, if the infringement or misappropriation would not have occurred but for such failure.
    4. Remedy. If SixFifty becomes aware of, or anticipates, a Claim subject to indemnification under Sections 10(a) and 10(b), then SixFifty may, at its option (a) modify the Online Service so that it becomes non-infringing; (b) obtain a license to the third-party intellectual property rights giving rise to the Claim; or (c) terminate the affected Order Form(s) on written notice to Customer and refund to Customer any pre-paid but unused fees.
    5. Limited Remedy. Sections 10(a), 10(b), 10(c), and 10(d) state SixFifty’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property right by the Online Service.
    6. Defense by Customer. Customer will defend SixFifty from any actual or threatened third-party Claim arising out of or based upon Customer’s use of a Product, provision of the Customer Data, or breach of any of the provisions of this Agreement, or any Claim that is an Excluded Claim, if: SixFifty gives Customer prompt written notice of the Claim; SixFifty grants Customer full and complete control over the defense and settlement of the Claim; SixFifty provides assistance in connection with the defense and settlement of the Claim as Customer may reasonably request (at SixFifty’s expense); and SixFifty complies with any settlement or court order made in connection with the Claim. SixFifty will not defend or settle any Claim subject to indemnification under this section without Customer’s prior written consent. SixFifty will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Customer will have sole control over the defense and settlement of the Claim.
    7. Indemnification by Customer. Customer will indemnify SixFifty from and pay all damages, costs, and attorneys’ fees finally awarded against SixFifty in any Claim under Section 10(f); all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by SixFifty in connection with the defense of a Claim under Section 10(f) (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of the Claim); and, all amounts that Customer agrees to pay to any third party to settle any Claim under Section 10(f).

     

  11. Limitation of Liability
    1. Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, SIXFIFTY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS OF PROFITS, BUSINESS, CONTRACTS, ANTICIPATED SAVINGS, GOODWILL, OR REVENUE, OR ANY WASTED EXPENDITURE, IN EACH CASE ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF SIXFIFTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL SIXFIFTY BE LIABLE FOR ANY LOSS OR CORRUPTION OF DATA STORED IN, OR IN CONNECTION WITH, THE ONLINE SERVICE.
    2. Cap on Liability. UNDER NO CIRCUMSTANCES WILL SIXFIFTY’S AGGREGATE LIABILITY OF ALL KINDS FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO SIXFIFTY FOR THE APPLICABLE PRODUCT UNDER THE ORDER FORM WITH RESPECT TO WHICH THE LIABILITY AROSE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION). CUSTOMER UNDERSTANDS THAT THIS AGREEMENT IS ENTERED INTO BETWEEN CUSTOMER AND SIXFIFTY AND THAT AFFILIATES OF SIXFIFTY ARE NOT PARTIES TO THIS AGREEMENT. ACCORDINGLY, CUSTOMER AGREES THAT UNDER NO CIRCUMSTANCES WILL ANY AFFILIATE OF SIXFIFTY BE LIABLE TO CUSTOMER FOR ANY DAMAGES RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT.
    3. Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY SIXFIFTY TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

     

  12. General
    1. Relationship. SixFifty will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement.
    2. Assignability. Customer may not assign its right, duties, or obligations under this Agreement without SixFifty’s prior written consent, which consent will not be unreasonably withheld or delayed, except that Customer may assign this Agreement to an Affiliate or a successor (including a successor by way of Change of Control or operation of law), or in connection with the sale of all of the assets or business to which this Agreement relates so long as the successor agrees in writing to be bound by the terms of this Agreement. A Change of Control shall be deemed to cause an assignment of this Agreement. “Change of Control” means a merger, acquisition, divestiture, sale of assets or equity, or similar transaction.
    3. Export. Customer will comply with all applicable export and import laws, rules, and regulations in connection with Customer’s activities under this Agreement. Customer acknowledges that it is Customer’s responsibility to obtain any required licenses to export and re-export Products. The Products, including technical data, are subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer represents and warrants that the Products are not being and will not be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals and persons on the Table of Denial Orders, the Entity List or the List of Specifically Designated Nationals, unless specifically authorized by the U.S. Government for those purposes.
    4. Subcontractors. SixFifty may utilize subcontractors or other third parties to perform its duties under this Agreement so long as SixFifty remains responsible for all of its obligations under this Agreement.
    5. Notices. Customer consents to receiving electronic communications from SixFifty. These communications may include notices about Customer’s account and information concerning or related to the Products. Customer agrees that any notices, agreements, disclosures, or other communications sent electronically by SixFifty to the email address associated with Customer’s account will satisfy any legal communication requirements, including that such communications be in writing. Except as otherwise provided herein, Customer will provide any notices required or permitted to be given in accordance with this Agreement in writing and sent by certified or registered mail, or overnight courier, return receipt requested, with the appropriate postage affixed, to the SixFifty’s address included on the most recent invoice or statement sent by SixFifty to Customer, unless otherwise noticed by SixFifty.
    6. Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement (except for failure to make payments when due) on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that Party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
    7. Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Santa Clara County, California in connection with any action arising out of or in connection with this Agreement.
    8. Waiver. The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
    9. Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of a Product under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use Products will immediately terminate.
    10. Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation;”; (b) the words “such as”, “for example” “e.g.” and any derivatives of those words will mean by way of example and the items that follow these words will not be deemed an exhaustive list; (c) the word “or” is used in the inclusive sense of “and/or” and the terms “or,” “any,” and “either” are not exclusive; (d) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (e) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (f) whenever the context may require, any pronouns used in this Agreement will include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns will include the plural, and vice versa. The headings set forth in this Agreement are for convenience of reference purposes only and will not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof. References to “$” and “dollars” are to the currency of the United States of America. Any law defined or referred to herein means such law as from time to time amended, modified or supplemented, including (in the case of statutes) by succession of comparable successor laws.
    11. Entire Agreement. This Agreement, including all exhibits, together with SixFifty’s Privacy Policy, is the final and complete expression of the agreement between these Parties regarding the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any nondisclosure or comparable agreement between the Parties executed prior to this Agreement being executed. No employee, agent, or other representative of SixFifty has any authority to bind SixFifty with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. Subject to Section 2(b), this Agreement may be changed only by a written agreement signed by an authorized agent of the Party against whom enforcement is sought. SixFifty will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any receipt, acceptance, confirmation, correspondence, or otherwise, unless SixFifty specifically provides a written acceptance of such provision signed by an authorized agent of SixFifty.

 
 
 
Last Updated: April 28, 2023