Last Updated: May 12, 2021
Thank you for choosing to use our Services.
This Agreement sets forth the terms on which Litmus will provide the Services to Customer, and describes how the Services may be accessed and used.
THIS AGREEMENT IS SUBJECT TO ARBITRATION PURSUANT TO SECTION 11.9 (DISPUTES; ARBITRATION) BELOW
All capitalized terms in this Agreement not defined in this Section shall have the meanings set forth in the Sections of this Agreement in which they are defined.
1.1. “Affiliate” means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a Party. For purposes of this definition “control” means the direct possession of a majority of the outstanding voting securities of an entity.
1.2. “Agreement” means this Governing Subscription Agreement, including any applicable Order Forms.
1.3. “Content” means text, images, documents, materials, photos, audio, video, and all other forms of data or communication.
1.4. “Customer” means the customer accepting this Agreement and identified on the applicable Order Form.
1.5. “Customer Content” means all Content made available or provided by or on behalf of Customer to Litmus, or generated and collected by Litmus on behalf of Customer, in connection with the provision of the Services.
1.6. “Documentation” means the documentation for the Services generally supplied by Litmus to assist its customers in the use of the Services, including user and system administrator guides and manuals and other written materials.
1.7. “Feedback” means any comments, reports or other correspondence provided by Customer, in any form or format, about any errors, problems, or defects in, or suggestions for changes or improvements to, the Services.
1.8. “Litmus” means Litmus Software, Inc., a Delaware corporation, located at 675 Massachusetts Ave., 10th Floor, Cambridge, MA 02139, U.S.A.
1.9. “Litmus Content” means all Content made available by Litmus to Customer in connection with Customer’s use of the Services (excluding Customer Content).
1.10. “Order Form” means each Litmus ordering document signed by each Party’s duly authorized representative that references this Agreement, identifies the specific Services being ordered by Customer, describes the fees to be paid by Customer and any other applicable terms and conditions.
1.11. “Party” means either Litmus or Customer, as applicable, and Parties collectively means Litmus and Customer.
1.12. “Services” means the proprietary subscription-based email creation, testing, analytics, and collaboration Software-as-a-Service (SaaS) solution made available by Litmus to Customer pursuant to the terms and conditions of this Agreement and any related services provided by Litmus pursuant to Section 2.1 (Services).
1.13. “User” means an individual eighteen years of age or older who has been supplied a unique username and password and is authorized by Customer to access and use the Services. Unless otherwise agreed by the Parties in writing, a User shall consist of an employee or individual independent contractor of Customer or its Affiliate(s).
1.14. “Volume Limitations” means the number of Users and other metrics specific to the Services purchased by Customer and set forth on an applicable Order Form.
2.1. Services. Litmus shall provide Customer with the specific Services at the designated Volume Limitations set forth in the applicable Order Form. Any conflict between the terms and conditions set forth in this Agreement and any Order Form shall be resolved in favor of this Agreement, unless the Order Form expressly references the provision of this Agreement that it is to control over. Customer agrees that purchases hereunder are based upon the Services set forth in each applicable Order Form, and are neither contingent on the delivery of any future functionality or features outside the scope of the applicable Order Form, nor dependent on any oral or written comments made by Litmus regarding any future functionality or features.
2.2. License Grant. Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees set forth on the applicable Order Form, Litmus hereby grants to Customer, solely during the term of the applicable Order Form, a non-exclusive, non-transferable (except as set forth in Section 11.2 (Assignment)) license to access and use the Services solely for Customer’s internal business purposes. This license is restricted to use by Customer, its Affiliates, and their Users, and does not include the right to use the Services on behalf of any third party. Customer is responsible for procuring and maintaining the network connections, hardware, software and other ancillary services necessary for Customer to connect to and otherwise use the Services. Customer agrees: (a) that only authorized Users are permitted to use the Services; (b) that it is responsible for determining which feature permissions are granted to each User; (c) that it is responsible for the acts or omissions of its Users in connection with activities contemplated under this Agreement; (d) that it is responsible for all access and/or use of the Services through the usernames and passwords assigned to its Users, shall strictly prohibit the sharing of usernames and passwords, and shall promptly notify Litmus of any actual or suspected unauthorized access and/or use of the Services under such usernames and passwords; (e) to promptly remove access of any individuals who are no longer authorized by Customer to access and use the Services on its behalf; and (f) to otherwise take all commercially reasonable steps to protect the Services and the Documentation from unauthorized use and/or access.
2.3. Licensed Volume. Customer acknowledges that access and use of the Services is licensed to Customer for use up to the Volume Limitations specified in the applicable Order Form. If usage of the Services exceeds the Volume Limitations, Customer shall be obligated to pay Litmus for such overages at the rates set forth in the Order Form or, if no such overage rates are specified in the Order Form, at the then-current rates for such Services. If, during the subscription term of an Order Form, Customer incurs overages or otherwise elects to license additional Volume Limitations and/or Services offered by Litmus, the Parties will enter into a new or amended Order Form specifying such additional Volume Limitations and/or Services, as well as any applicable fees to be paid by Customer. The subscription term of any mid-term upgrade will renew or terminate on the same date as the Order Form for the underlying subscription.
2.4. Subscription Term. The initial term of each subscription is set forth in the applicable Order Form. Except as expressly set forth in the Order Form, the subscription shall automatically renew at the end of the subscription term for additional periods equal to one (1) year, unless either Party gives written notice of non-renewal at least thirty (30) days prior to the end of the then-current subscription term.
2.5. Affiliates. Subject to the terms of the applicable Order Form, Customer may make access and use of the Services available to its Affiliates; provided that all licensing restrictions are complied with in each instance by each such Affiliate, and that Customer shall be liable for any breach of the terms and conditions of this Agreement and the applicable Order Form by any of its Affiliates. Any license restrictions and/or Volume Limitations set forth on an Order Form shall be deemed to apply collectively to both Customer and its Affiliates. By way of example, if an Order Form limits use of the Services to five (5) Users, then use by Customer and its Affiliates, when aggregated together, shall not exceed a total of five (5) Users.
2.6. Changes to Services. Customer acknowledges that the Services are evolving. As a result, Litmus may modify, change and/or improve the Services, including any features, functionality or components of the Services, from time to time; provided, however, that such changes shall not materially diminish the Services.
3. FEES; PAYMENT TERMS
3.1. Fees. Customer agrees to pay Litmus for the Services provided and expenses incurred on the basis and at the rates specified in each Order Form. Unless otherwise set forth on the Order Form, payment shall be due within thirty (30) days from date of invoice, shall be made in US Dollars, and are based on rights acquired to access and use the Services and not actual usage. All payment obligations under any Order Form are non-cancelable and, unless otherwise provided in this Agreement, are non-refundable. Customer agrees to pay a late charge of one and one-half percent (1.5%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts, not subject to a good faith dispute, and not paid when due.
3.2. Disputed Charges. If Customer disputes any charge or amount on any invoice and such dispute cannot be resolved promptly through good faith discussions between the Parties, Customer shall pay the amounts due under the applicable Order Form less the disputed amount, and the Parties shall proceed in good faith to promptly resolve such disputed amount. An amount will be considered disputed in good faith if (a) Customer delivers a written statement to Litmus on or before the due date of the invoice, describing in detail the basis of the dispute and the amount being withheld by Customer, (b) such written statement represents that the amount in dispute has been determined after due investigation of the facts and that such disputed amount has been determined in good faith, and (c) all other amounts due from Customer that are not in dispute have been paid as and when required hereunder.
3.3. Taxes. Fees are exclusive of taxes. Customer shall be responsible for the payment of all sales, use and similar taxes arising from or relating to the Services rendered hereunder, except for taxes related to the net income of Litmus and any taxes or obligations imposed upon Litmus under federal, state and local wage laws. Any withholding amount or deduction imposed on the payment to be made to Litmus shall be the sole responsibility of Customer, and any payments or fees due to Litmus shall not be decreased in any manner by such withholding amount. If Litmus has the legal obligation to pay or collect taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Litmus with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.1. Confidential Information. During the term of this Agreement, each Party will regard any information provided to it by the other Party that is designated in writing or verbally as proprietary or confidential, or that a reasonable person familiar with the disclosing Party’s business and the industry in which it operates would consider to be of a confidential or proprietary nature (“Confidential Information”). The receiving Party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, consultant, agent, subcontractor, subprocessor or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving Party and who are bound by a duty of confidentiality no less protective of the disclosing Party’s Confidential Information than this Agreement. The receiving Party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing Party. Each Party accepts responsibility for the actions of its Representatives and shall protect the other Party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. The Parties expressly agree that the terms and pricing of this Agreement are Confidential Information and Customer further agrees that it shall not use the Services for the purposes of conducting comparative analysis, evaluations or product benchmarks with respect to the Services and will not publicly post any analysis or reviews of the Services without the prior written approval of Litmus. A receiving Party shall promptly notify the disclosing Party upon becoming aware of an actual or reasonably suspected breach hereunder, and shall cooperate with any reasonable request of the disclosing Party in enforcing its rights.
4.2. Exclusions. Information will not be deemed Confidential Information hereunder if such information: (a) is known prior to receipt from the disclosing Party, without any obligation of confidentiality, (b) becomes known to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party, (c) becomes publicly known or otherwise publicly available, except through a breach of this Agreement, or (d) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information. The receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing Party reasonable prior written notice (if permissible) to permit the disclosing Party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
4.3. Injunctive Relief. Notwithstanding any other provision of this Agreement, both Parties acknowledge that any use of the disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both Parties agree that, in addition to any other remedy to which the disclosing Party may be entitled hereunder, at law or in equity, the disclosing Party shall be entitled to seek an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.
5.1. Service Warranty. Litmus warrants that during the term of any Order Form, the Services will conform, in all material respects, with the Documentation. Litmus does not warrant that it will be able to correct all reported defects or that use of the Services will be uninterrupted or error free. Litmus makes no warranty regarding features, services or Content provided by third parties. For any breach of the above warranty, Litmus will, at no additional cost to Customer, provide remedial services necessary to enable the Services to conform to the warranty. Customer will provide Litmus with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. If Litmus is unable to fix the deficiency, Customer’s sole and exclusive remedy for breach of warranty contained in this Section shall be to terminate the applicable Order Form and have Litmus refund to Customer a pro rata unused portion of any prepaid fees. Such warranty shall only apply if the Services have been utilized by Customer in accordance with this Agreement.
5.2. Harmful Code. Each Party represents and warrants that it will use industry standard precautions to ensure that: (a) with respect to Litmus, the Services, and (b) with respect to Customer, the Customer Content, do(es) not contain any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data.
5.3. No Other Warranty. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 5 (WARRANTIES) AND AS PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED TO CUSTOMER STRICTLY ON AN “AS-IS” BASIS. LITMUS DOES NOT REPRESENT THAT THE SERVICES WILL BE ERROR-FREE, THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT ALL ERRORS IN THE SERVICES WILL BE CORRECTED. THE WARRANTIES STATED IN THIS SECTION 5 ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY LITMUS. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES ARE ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES AND THAT CUSTOMER’S PROPOSED USE OF THE SERVICES COMPLIES WITH APPLICABLE LAWS IN CUSTOMER’S JURISDICTION(S).
6. LIMITATION OF LIABILITY
6.1. Disclaimer of Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL A PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE PERFORMANCE OF THE SERVICES AND/OR THE PERFORMANCE OF ANY OTHER OBLIGATIONS UNDER THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT, INTENDED CONDUCT OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES RELATING TO LOSS OF PROFITS, GOODWILL, OR BUSINESS INFORMATION AND/OR DATA, COSTS INCURRED AS A RESULT OF DECISIONS MADE IN RELIANCE OF THE SERVICE, LOSS OF USE OF THE SERVICE, BUSINESS INTERRUPTION, COST OF SUBSTITUTE SOFTWARE, SERVICES OR DATA, EVEN IF SUCH PARTY IS AWARE OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES.
6.2. Limitation of Liability. THE TOTAL CUMULATIVE LIABILITY OF EACH PARTY FOR ANY AND ALL CLAIMS AND DAMAGES UNDER THIS AGREEMENT, WHETHER ARISING BY STATUTE, CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO LITMUS UNDER THE ORDER FORM FOR THE SERVICES THAT FORM THE SUBJECT OF THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH ANY CLAIM IS MADE (“GENERAL CAP”). NOTWITHSTANDING THE FOREGOING, THE TOTAL AGGREGATE LIABILITY FOR ANY DAMAGES CAUSED BY LITMUS FOR A BREACH OF THE CONFIDENTIALITY OBLIGATIONS UNDER SECTION 4 (CONFIDENTIALITY) OR ANY DATA SECURITY OBLIGATIONS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED TWO TIMES (2X) THE AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH ANY CLAIM IS MADE (“ENHANCED CAP”). THE PROVISIONS OF THIS AGREEMENT FAIRLY ALLOCATE RISKS BETWEEN THE PARTIES. THE PRICING SET FORTH IN EACH ORDER FORM REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
6.3. Exceptions. THE LIMITATIONS OF LIABILITY IN THIS SECTION 6 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO ANY CLAIMS RELATED TO (A) INDEMNIFICATION OBLIGATIONS, (B) GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR INTENTIONAL FRAUD, (C) CUSTOMER’S OBLIGATION TO PAY ANY UNDISPUTED FEES OR INVOICES, OR (D) BREACH BY CUSTOMER, ITS AFFILIATES OR THEIR USERS OF SECTION 8.3 (CUSTOMER OBLIGATIONS & RESTRICTED USE).
7.1. Term. The term of this Agreement will commence on the effective date of the applicable Order Form (the “Effective Date”) and will continue in effect until the expiration of all underlying Order Forms between the Parties, or until otherwise terminated in accordance with Section 7.2 (Termination) below.
7.2. Termination. Notwithstanding the foregoing, either Party may terminate this Agreement and/or any Order Form (a) immediately in the event of a material breach of this Agreement or any such Order Form by the other Party that is not cured within thirty (30) days of written notice from the other Party, or (b) immediately if the other Party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, which is not dismissed within sixty (60) days of filing. Termination of this Agreement shall result in the termination of all underlying Order Forms between the Parties. Termination of an Order Form hereunder, however, shall not be deemed a termination of any other Order Form(s), unless expressly stated in such notice of termination. All rights and obligations of the Parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement.
7.3. Effect of Termination. Upon any termination or expiration of this Agreement and/or any applicable Order Form, Litmus shall no longer provide the Services set forth in the applicable Order Form to Customer and Customer shall promptly cease, and cause its Users to promptly cease, using such Services. Customer shall pay Litmus for all fees that had accrued prior to the termination date. In the event that Customer terminates any Order Form for uncured material breach, Customer shall be entitled to a pro rata refund of any prepaid fees attributable to the remainder of the Term. Except as expressly provided herein, termination of this Agreement by either Party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such Party. Upon written request, each Party shall promptly return or destroy all Confidential Information of the other Party in its possession. Customer may retrieve the Customer Content up through the date of termination. After such period, Litmus will have no further obligation to store and/or make available the Customer Content and may delete the same.
7.4. Suspension. Litmus shall have the right to suspend Customer’s access to the Services for breach of this Agreement at any time upon the provision of written notice (email shall suffice), without liability to Customer. Upon suspension, the Parties shall meet and confer in good faith to address the issue.
8. OWNERSHIP; USE OF CONTENT; OBLIGATIONS; RESTRICTED USE
8.1. Services. Customer acknowledges and agrees that, as between Litmus and Customer, all right, title and interest in and to the Services (excluding any Customer Content) and including all modifications, enhancements and configurations, all Litmus Content and all proprietary technology of Litmus, including, without limitation, all software, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information made available to Customer by Litmus in providing the Services and all derivatives thereof are and shall remain with Litmus or its licensors. Litmus shall have the right to collect, use and distribute aggregated information, analysis, statistics, related benchmarking algorithms and other data generated by the Services (or derived from Customer’s use of the Services); provided, however, that Litmus shall not disclose any such data to a third party (excluding third party service providers engaged by Litmus to process such data in connection with the provision of services by such service provider to Litmus) unless such data is in an aggregated form that would not permit such third party to identify the data as associated with Customer, its Affiliates, or their Users or email recipients. The Litmus name, all Litmus logos, and the product names associated with the Services are trademarks of Litmus or third parties, and no right or license is granted to use them. Customer shall not remove any Litmus trademark or logo from the Services or Documentation. During the term of this Agreement, Litmus grants to Customer a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 11.2 (Assignment)), royalty-free right to use, display, transmit, and distribute the Litmus Content solely in connection with Customer’s permitted use of the Services. If Customer provides Litmus with Feedback, Customer hereby grants to Litmus an irrevocable, fully-paid up, non-exclusive, royalty-free, perpetual and worldwide license to use, reproduce, reformat, modify, create derivative works of, excerpt, translate, publish, display, transmit, perform, and distribute such Feedback in any medium or format, whether now known or later developed.
8.2. Customer Content. Customer retains ownership of all right, title and interest in and to all Customer Content. Customer is solely responsible for all Customer Content, including the accuracy, quality, appropriateness and legality thereof. Customer represents and warrants that it possesses all rights necessary to provide the Customer Content, grant the licenses to Litmus set forth herein, and direct Litmus to collect, generate and process Customer Content on Customer’s behalf as set forth in this Agreement. Without limiting the generality of the foregoing, Customer shall provide all notices to, and obtain any consents from, any data subject as required by any applicable law, rule or regulation in connection with the processing of any Customer Content that constitutes personally identifiable information of such data subjects via the Services by Customer or Litmus. During the term of this Agreement, Customer hereby grants to Litmus: (a) a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 11.2 (Assignment)), royalty-free right to use, reproduce, reformat, modify, create derivative works of, excerpt, translate, publish, display, transmit, perform and distribute the Customer Content solely as necessary to provide the Services to Customer, (b) a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, sub-licensable and transferrable right to use, reproduce, reformat, modify, create derivative works of, excerpt, translate, publish, display, transmit, perform and distribute the Customer Content only in an aggregated form that would not permit a third party to identify the data as associated with Customer, its Affiliates, or their Users or email recipients, to improve and/or market the Services; and (c) if Customer, its Affiliates or their Users elect to post Customer Content to any Litmus-hosted forum, a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, sub-licensable and transferrable right to use, reproduce, reformat, modify, create derivative works of, excerpt, translate, publish, display, transmit, perform and distribute the Customer Content posted to such forum.
8.3. Customer Obligations & Restricted Use. Customer is responsible for all activities conducted under its User logins, and for its Affiliates and their Users’ compliance with this Agreement. Unauthorized use, resale or commercial exploitation of the Services in any way is expressly prohibited. Customer, its Affiliates, and their Users shall not (and shall not allow any third party to): (a) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Services or access the Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Services, (b) except as expressly permitted in this Agreement, copy, license, sell, transfer, make available, lease, time-share, distribute, or assign this license to the Services to or for the benefit of any third party (including in any service bureau arrangement or otherwise), (c) use the Services to send, upload or otherwise transmit any Customer Content that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, (d) upload to or otherwise transmit, display or distribute via the Services any Customer Content that infringes any intellectual property or other rights of any person, (e) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment, (f) interfere with or disrupt the Services or networks connected to the Services, (g) access or use the Services in a way intended to avoid incurring fees or exceeding Volume Limitations, (h) attempt to breach any security or authentication measures implemented by Litmus, whether by passive or intrusive techniques, or (i) violate any applicable law or regulation (including, without limitation, the CAN-SPAM Act of 2003 and any rules adopted under such act, and any United States trade or export restrictions). In addition to any other remedies of Litmus hereunder, Litmus reserves the right upon notice to Customer (email notice shall suffice) to terminate any User’s right to access the Services if such User has violated any of the restrictions contained in this Agreement.
9.1. Litmus Indemnification. Subject to Section 9.3 (Indemnification Procedure) below, Litmus will defend Customer, its Affiliates and their respective officers, directors, employees and agents (collectively, the “Customer Indemnitees”), against any claim, demand, suit or proceeding made or brought against any of the Customer Indemnitees by a third party alleging that the Services infringe or misappropriate such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify the Customer Indemnitees from any damages, reasonable attorney fees and costs finally awarded against any of the Customer Indemnitees as a result of, or for amounts paid under a court-approved settlement of a Claim Against Customer. If a Claim Against Customer is brought, or is likely to be brought in the sole opinion of Litmus, Litmus will, at its option and expense: (a) obtain the right for Customer to continue using the Services, (b) replace or modify the affected Services so that they become non-infringing, or (c) upon notice to Customer, terminate this Agreement, any applicable Order Form(s), and/or Customer’s use of the affected Services, provided that Litmus promptly refunds to Customer a pro rata portion of any unearned fees pre-paid under the applicable Order Form(s) for the affected Services. The obligations of Litmus in this Section 9.1 do not cover third party claims to the extent such claims arise from: (i) any products, services, technology, materials or data not created or provided by Litmus (including without limitation any Customer Content), (ii) any part of the Services made in whole or in part in accordance to Customer specifications, (iii) any modifications made after delivery by Litmus, (iv) any combination with other products, processes or materials not provided by Litmus (where the alleged damages, costs or expenses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Services is not strictly in accordance herewith.
9.2. Customer Indemnification. Subject to Section 9.3 (Indemnification Procedure) below, Customer will defend Litmus, its Affiliates, and their officers, directors, employees and agents (collectively, the “Litmus Indemnitees”) against any claim, demand, suit or proceeding made or brought against any or all of the Litmus Indemnitees by a third party: (a) alleging that the Customer Content, or any use thereof, infringes the intellectual property rights or proprietary rights of others, or has caused harm to a third party, or (b) arising out of Customer’s breach of Section 8.3 (Customer Obligations & Restricted Use) above (a “Claim Against Litmus”), and will indemnify the Litmus Indemnitees from any damages, reasonable attorney fees and costs finally awarded against the Litmus Indemnitees as a result of, or for any amounts paid under a court-approved settlement of a Claim Against Litmus.
9.3. Indemnification Procedure. Each Party’s obligation to indemnify the other Party is conditioned on the Party seeking indemnification to: (a) promptly notify the indemnifying Party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is prejudiced thereby, (b) allow the indemnifying Party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying Party shall not settle any claim that without the prior written consent (such consent not to be unreasonably withheld or delayed) of the indemnified Party if such settlement exposes the indemnified Party to any liability, and (c) give the indemnifying Party reasonable assistance in the defense and settlement of any claim, suit or proceeding for which indemnity is claimed.
9.4. Sole Remedy. This Section 9 (Indemnification) states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of claim described in this Section 9.
Litmus shall maintain in full force and effect during the term of any Order Form the following insurance: (a) Workers’ Compensation insurance with limits to conform with amounts required by applicable law; (b) Commercial General Liability insurance with limits not less than One Million US Dollars ($1,000,000) per occurrence and Two Million US Dollars ($2,000,000) in aggregate; and (c) Professional Liability/Errors and Omissions (including Cyber Liability) with limits not less than One Million US Dollars ($1,000,000) per claim and in aggregate for all claims each policy year.
11.1 Entire Agreement. This Agreement, including all Order Forms and data protection agreement (if any), contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating thereto and is binding upon the Parties and their permitted successors and assigns. Only a written instrument that refers to this Agreement or the applicable Order Form and that are duly signed by each Party’s authorized representatives may amend this Agreement or such Order Form. Any inconsistent or conflicting terms and conditions contained in any purchase order, acceptance notice or other similar document issued by Customer shall be of no force or effect, even if such document is accepted by Litmus. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the Party drafting this Agreement in construing or interpreting the provisions hereof.
11.2. Assignment. This Agreement shall be binding upon and for the benefit of Litmus, Customer and their permitted successors and assigns. Either Party may assign this Agreement, including all Order Forms, as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Except as expressly stated in this Agreement, neither Party may otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other Party, and any attempted assignment or delegation without such consent will be void. Litmus may use subcontractors to assist in the delivery of Services; provided, however, that Litmus shall remain liable for the acts or omissions of such subcontractors and for the payment of their compensation.
11.3. Waiver and Severability. Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by an authorized representative of the other Party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either Party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.
11.4. Relationship of the Parties. Litmus and Customer are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither Party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other Party’s name or on its behalf.
11.5. No Third Party Beneficiaries. Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a Party to any such person.
11.6. Force Majeure. Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party.
11.7. Notices. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes: (a) on the delivery date if delivered personally to the Party to whom the same is directed, (b) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt, or (c) five (5) business days after the mailing date whether or not actually received, if sent by U.S. certified mail, return receipt requested, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available, to (x) Litmus at Litmus Software, Inc., 675 Massachusetts Ave., 10th Floor, Cambridge, MA 02139, USA, Attn: CFO, with copy to Attn: General Counsel, or (y) Customer at the address set forth on the applicable Order Form. Either Party may change its address by giving written notice of such change to the other Party.
11.8. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA without regard to its conflict of law provisions. Except as otherwise permitted below in Section 11.9 (Dispute; Arbitration), for all purposes of this Agreement, the Parties consent to exclusive jurisdiction and venue in the federal and state courts sitting in Boston, Massachusetts.
11.9. DISPUTES; ARBITRATION. ANY DISPUTES BETWEEN THE PARTIES ARISING OUT OF THIS AGREEMENT SHALL BE RESOLVED AS FOLLOWS: MEMBERS OF THE SENIOR MANAGEMENT OF BOTH PARTIES SHALL MEET AND CONFER IN GOOD FAITH TO ATTEMPT TO RESOLVE SUCH DISPUTES. IF A DISPUTE CANNOT BE RESOLVED WITHIN FIFTEEN (15) DAYS, EITHER PARTY MAY MAKE A WRITTEN DEMAND FOR BINDING ARBITRATION IN THE VENUE SPECIFIED IN SECTION 11.8 (GOVERNING LAW; VENUE), USING THE ENGLISH LANGUAGE IN ACCORDANCE WITH THE STREAMLINED ARBITRATION RULES AND PROCEDURES OF JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC. (“JAMS”) THEN IN EFFECT, BY ONE (1) COMMERCIAL ARBITRATOR WITH SUBSTANTIAL EXPERIENCE IN RESOLVING INTELLECTUAL PROPERTY AND COMMERCIAL CONTRACT DISPUTES, WHO SHALL BE SELECTED FROM THE APPROPRIATE LIST OF JAMS ARBITRATORS IN ACCORDANCE WITH THE STREAMLINED ARBITRATION RULES AND PROCEDURES OF JAMS. JUDGMENT UPON THE AWARD SO RENDERED MAY BE ENTERED IN ANY COURT HAVING JURISDICTION, OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE. NOTWITHSTANDING THE FOREGOING, EACH PARTY SHALL HAVE THE RIGHT TO INSTITUTE AN ACTION IN ANY COURT OF PROPER JURISDICTION FOR INJUNCTIVE OR OTHER EQUITABLE RELIEF PENDING A FINAL DECISION BY THE ARBITRATOR.
11.10. Trials or Promotional Offerings. Notwithstanding anything to the contrary herein, any access or use of the Services under a trial or other promotion that provides Customer with free or discounted access to the Services (“Trial”), is subject to the terms of this Agreement and such offer, and must be used within the specified time period of such offer. Customer may cancel the Trial at any time during the Trial period. The Trial and this Agreement shall terminate upon expiration or termination of the Trial. ALL SERVICES MADE AVAILABLE VIA A TRIAL ARE PROVIDED TO CUSTOMER “AS IS” AND “AS AVAILABLE” WITHOUT ANY REPRESENTATIONS, WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE) OR INDEMNITIES BY LITMUS, AND MAY BE MODIFIED, DISCONTINUED, OR CANCELLED AT ANY TIME FOR ANY REASON AT THE SOLE DISCRETION OF LITMUS.
11.11. Beta Services. From time to time, Litmus may make new features, functionalities, services, software and/or documentation available for use. Those Services will be marked as “beta,” “pre-release,” “preview,” “early access,” or “evaluation” (or with similar words or phrases, collectively “Beta Services”). Any use of Beta Services by Customer must be made in accordance with the specifications provided by Litmus. At the end of the Beta Services period, Customer’s use of the applicable Beta Services will expire. ALL SERVICES PROVIDED AS BETA SERVICES ARE PROVIDED TO CUSTOMER “AS IS” AND “AS AVAILABLE” WITHOUT ANY REPRESENTATIONS, WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE) OR INDEMNITIES, AND MAY BE MODIFIED, DISCONTINUED, OR CANCELLED AT ANY TIME FOR ANY REASON AT THE SOLE DISCRETION OF LITMUS.
11.12. Interaction with Third Party Services. The Services may contain links to third party websites or services (collectively, “Third Party Websites”) that are not owned or controlled by Litmus (e.g., links contained in third party postings to Litmus-hosted forums). Any access of Third Party Websites is at Customer’s own risk. Litmus has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of, or opinions expressed in any Third Party Websites. In addition, Litmus will not and cannot monitor, verify, censor or edit the content of any Third Party Websites. Litmus shall have no liability arising from Customer’s use of any Third Party Websites.
11.13. Subscription Bundling Restrictions. Except as expressly authorized by Litmus in writing, Customer shall not, and shall not permit its Users to, subscribe to, combine usage of, or otherwise bundle multiple individual subscriptions to the Services (whether via Order Form(s), online plans or a combination thereof) for impermissible purposes, including without limitation to circumvent entering into a single subscription plan for Services, avoid fees, or avoid identification of such use as associated with Customer’s activities (“Unauthorized Bundling”), as determined in the sole discretion of Litmus. Unauthorized Bundling constitutes material breach of this Agreement.
11.14. Changes. Notwithstanding anything to the contrary, Litmus may make non-material changes to this Agreement at any time by posting revised terms on the website and providing notice of such changes within the application, which is viewable via Customer’s account. A non-material change is any modification that does not have a substantive adverse impact on Customer or the Services pursuant to this Agreement. Customer is responsible for regularly reviewing its account to obtain timely notice of such amendments. Unless Customer notifies Litmus of its good faith objection to such change(s) within ten (10) days after such amended terms and conditions, and notification via the application, have been posted, the amended terms and conditions shall be effective immediately and apply to any continued or new use of the Services. If Litmus does not agree to waive the amended terms and conditions to which Customer objects, either Party shall have the right to immediately terminate this Agreement and/or any Order Form(s) without penalty.
11.15. Publicity. Customer hereby grants Litmus a non-exclusive license solely during the term of this Agreement to list Customer’s name and display Customer’s logo in the customer section of the Litmus website and to use Customer’s name and logo in the customer lists of Litmus, but only to the extent that other customers of Litmus are also listed on such list. Any other use by Litmus of Customer’s name, logos or trademarks requires Customer’s prior written consent.
11.16. California Consumer Privacy Act. To the extent the California Consumer Privacy Act of 2018, as amended (the “CCPA”), applies to the Services that Litmus provides to Customer, this provision shall be effective as of the Effective Date of this Agreement. Litmus does not receive any Personal Information from Customer as consideration for Customer’s access to and use of the Services. Litmus shall not: (a) have, derive, or exercise any rights or benefits regarding Customer’s Personal Information, (b) Sell Customer’s Personal Information, or (c) collect, retain, share or use the Personal Information Customer provides to Litmus, except as necessary for the specific business purpose of performing the Services pursuant to the Agreement or otherwise as permitted by the CCPA. Litmus shall refrain from taking any action that would cause transfer of Customer’s Personal Information to or from Litmus that would qualify as a Sale of Personal Information under the CCPA. For the purposes of this Section, Litmus is a Service Provider and the terms “Personal Information,” “Sell,” “Sale,” and “Service Provider” shall have the same meaning as set forth in the CCPA.
11.17. Headings. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
11.18. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original as against any Party whose signature appears thereon, but all of which together shall constitute but one and the same instrument. Signatures to this Agreement transmitted by facsimile, by electronic mail in “portable document format” (“.pdf”), or by any other electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical delivery of the paper document bearing the original signature.
11.19. Contact. If Customer has any questions or complaints with respect to the Services, Customer may contact Litmus by mail at Litmus Software, Inc., 675 Massachusetts Ave, Suite 10, Cambridge, MA 02139, U.S.A., email at email@example.com, or by phone at +1 (866) 787-7030, 9:00 AM – 6:00 PM EST, Monday through Friday (excluding Litmus holidays).