Pypestream Cloud Service Terms and Conditions
These Cloud Service Customer Terms and Conditions (this “Agreement”) is made effective as of the date (the “Effective Date”) on which you click a button or check a box acknowledging your acceptance of this Agreement or you execute an order form or complete Pypestream’s online ordering process (each an “Order”) by and between Pypestream Inc., a Delaware corporation, with offices at 1177 Avenue of the Americas 5th Floor, New York, NY 10036 (“Pypestream”) and the entity on whose behalf the individual accepting this Agreement accepts this Agreement (“Customer”). Pypestream and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.
1. Access and Use
- Provision of Access to the Cloud Service; Use of Documentation. Subject to and conditioned on Customer’s compliance with this Agreement, during the Term, Customer may: (i) access and use Pypestream’s proprietary conversational AI-based customer engagement solution currently known as “Pypestream” (the “Cloud Service”) solely within the scope of use defined in one or more separate Orders and in any event solely for Customer’s internal business purposes; and (ii) use Pypestream’s generally available end-user documentation relating to the Cloud Service that Pypestream makes available to Customer from time to time (the “Documentation”) solely in support of Customer’s authorized access to and use of the Cloud Service. The Cloud Service may only be accessed by employees and other agents of Customer who have been authorized by Customer to access and use the Cloud Service hereunder and for whom access to the Cloud Service has been purchased under an Order (“Authorized Users”). Each Authorized User must have its own unique account on the Cloud Service and Authorized Users may not share their account credentials with one another or any third party. Customer is responsible for use of Cloud Service by any user who accesses the Cloud Service with any Authorized User’s account credentials, including employees and other agents of Customer, whether an Authorized User or otherwise. Without limiting the generality of the foregoing, Customer is responsible for all Authorized Users’ use of the Cloud Service and their compliance with this Agreement.
- Use Restrictions. Customer may not: (i) use the Cloud Service in violation of applicable laws; (ii) send to or store in the Cloud Service infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (iii) send or store viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs to or in the Cloud Service; (iv) interfere with or disrupt performance of the Cloud Service or the data contained therein; (v) attempt to gain access to the Cloud Service or its related systems or networks in a manner not permitted in the Documentation; (vi) modify or copy the Cloud Service or Documentation or create any derivative works based on the Cloud Service or Documentation; (vii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Cloud Service or Documentation available to any third party, other than to Authorized Users inside Customer’s Enterprise as permitted herein; (viii) reverse engineer or decompile any portion of the Cloud Service or Documentation; (ix) access the Cloud Service or Documentation in order to build any commercially available product or service, including combining Cloud Service with Customer’s value add to create a commercially available Customer branded solution for which Customer charges a fee; (x) copy any features, functions, integrations, interfaces or graphics of the Cloud Service or Documentation; or (xi) use the Cloud Service or Documentation in any jurisdiction for unlawful, obscene, offensive or fraudulent content or activity, such as advocating or causing harm, interfering with or violating the integrity or security of a network or system, evading filters, sending unsolicited, abusive, or deceptive messages, or violating third party rights, as determined by Pypestream in its sole discretion.
- Customer Obligations. Customer will: (i) provide hardware, software and connectivity to access and use the Cloud Service; (ii) have sole responsibility for the accuracy, quality, and legality of all Customer Data; and (iii) prevent unauthorized access to, or use of, the Cloud Service, and notify Pypestream promptly of any such unauthorized access or use. Customer accepts an Order by ordering, enrolling, using, or making a payment for the Cloud Service. Orders may specify additional Customer responsibilities.
- Aggregated Data Use. Notwithstanding anything to the contrary in this Agreement, Pypestream may monitor Customer’s use of the Cloud Service and collect and compile aggregated and statistical data derived from the operation of the Cloud Service (the “Aggregated Data”) for Pypestream’s internal business use. As between Pypestream and Customer, Pypestream owns and may use the Aggregated Data for any lawful purpose. All right, title, and interest in Aggregated Data, and all Intellectual Property Rights therein, belong to and are retained solely by Pypestream.
- Feedback. To the extent Customer provides Pypestream with any feedback relating to the Cloud Service, including without limitation any suggestions or recommendations regarding new or changed features or functionality relating thereto (“Feedback”), Pypestream will own all right, title and interest in and to such Feedback and any enhancements or modifications made to the Cloud Service as a result of such Feedback and may otherwise freely use such Feedback irrespective of any other obligation or limitation between the Parties and, in particular, without any duty to account to Customer.
- Proprietary Rights. Subject to the limited rights expressly granted hereunder, Pypestream or its suppliers and licensors retain all intellectual property rights, including all related common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto (“Intellectual Property Rights”) in the Cloud Service, Aggregated Data, and Documentation. No rights are granted to Customer other than as expressly set forth herein. The Cloud Service, Aggregated Data, and Documentation (including revisions, modifications and enhancements thereto), including all Intellectual Property Rights thereto, shall be the sole and exclusive property of Pypestream or its suppliers, as applicable.
2. Customer Data and Data Security.
- Ownership of Customer Data. As between Pypestream and Customer, Customer retains all rights to the electronic data or information Customer or its Authorized Users submits, authorizes access to, or inputs via the Cloud Service (“Customer Data”).
- Grant of Rights. Customer grants Pypestream a non-exclusive, non-transferable, right to access and use Customer Data that Customer provides to the Cloud Service to provide, improve, and manage the Cloud Service. Unless otherwise described in the applicable Order, Pypestream shall not commingle Customer Data with data from any other customer. By using the Cloud Service, Customer agrees, and agrees to notify its end users who use Customer’s application that Pypestream may access, use, copy, distribute internally, compile, synthesize, and analyze Customer Data for internal purposes, including but not limited to end user’s content and data, to provide, improve, and manage the Cloud Service. With regards to chat (conversation) transcripts, Pypestream may analyze these periodically solely for the purpose of recommending modifications to Customer’s solution based on actual usage in production.
- Additional Customer Commitments Regarding Customer Data. Customer is responsible for obtaining, and represents and warrants to Pypestream that Customer has, all necessary (i) rights (including Intellectual Property Rights) in and to Customer Data, and (ii) permissions to enable, Pypestream to use, provide, store and process Customer Data in the Cloud Service. This includes Customer making necessary disclosures and obtaining consent, if required, before providing individuals’ information, including personal or other regulated information in such Customer Data. If any Customer Data could be subject to governmental regulation or may require security measures beyond those specified by Pypestream for an offering, Customer will not input, provide, or allow such Customer Data unless specifically permitted in the terms of the relevant Order or unless Pypestream has otherwise first agreed in writing to implement additional security and other measures.
3. Service Levels and Support.
Subject to the terms and conditions of this Agreement, Pypestream shall use commercially reasonable efforts to make the Cloud Service available in accordance with the service levels set forth in the Service Level Agreement (the current version of which is made available at https://www.pypestream.com/service-level-agreement/).
4. Fee Payment, Charges & Taxes
- Charge Metrics. Cloud Service offerings are sold in accordance with the following “Charge Metric(s)”:
- Pype is the equivalent of a tenant, and is a dedicated Instance tied to Customer or a particular use case.
- Session A Pypestream session occurs when an end user engages within a conversational interface by entering free text or selecting an option (e.g., button, listpicker or carousel). The session is active until the user ends the session, the user closes the window, or if the session times out due to 30 minutes of inactivity. If a user opens a conversational interface, but does not engage in anyway, a session is not counted.
- Instance is a unit of measure by which the Cloud Service can be obtained. An Instance is access to a specific configuration of the Cloud Service.
Auto-launching the Cloud Service may result in inconsistent tracking of Sessions. Therefore, Customer will not auto-launch the Cloud Service upon loading of a webpage unless mutually determined with Pypestream as a requirement and/or desirable user experience.
- Invoice, Payment, and Pricing. All fees identified in the relevant Order (“Fees”) will be invoiced to Customer in accordance with the relevant Order. Except as otherwise set forth in an Order, Pypestream will invoice annual subscription fees on an annual basis, and the charge for overages on a monthly basis, and all fees due hereunder (except fees subject to good faith dispute) will be due and payable within 15 days of invoice date and are quoted and payable in United States Dollars. Customer will provide Pypestream with complete and accurate billing and contact information including a valid email address for receipt of invoices. Payment may be made electronically to an account specified by Pypestream or by other means agreed to by the Parties. Pricing or any invoice based on the relevant Order may depend on the Charge Metrics (as defined above) listed in the relevant Order. Except as otherwise expressly provided herein, all payment obligations under any and all Orders are non-cancelable and, except as otherwise expressly set forth in this Agreement, all payments made are non-refundable.
- Overdue Payments, Non-Payment and Suspension of Service. If Customer fails to make any undisputed payment when due, without limiting Pypestream’s other rights and remedies, and commencing no earlier than 30 days after notice to the Customer of nonpayment: (i) Pypestream may charge interest as a finance charge on the past due amount at the rate of 2% calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Pypestream for all reasonable costs incurred by Pypestream in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 30 days or more, Provider may suspend Customer’s and its Authorized Users’ access to any portion or all of the Cloud Service upon 30 days written notice, until such amounts are paid in full.
- Taxes and Fees. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments based on the transactions effected by this Agreement, including without limitation all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, or any provincial or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services taxes, excise, use or similar taxes, and all transfer fees, but excluding taxes on Pypestream’s net income (“Transaction Taxes”). If Pypestream has a legal obligation to pay or collect Transaction Taxes for which Customer is responsible hereunder, the appropriate amount will be invoiced to and must be paid by Customer unless Customer provides Pypestream with a valid tax exemption certificate authorized and honored by the appropriate taxing authority.
5. Representations and Warranties.
- Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement and the relevant Order; (iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; (iv) when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (v) each Party will comply with all laws applicable to it related to data privacy, international communications and the transmission of technical or personal data.
- WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PYPESTREAM MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE CLOUD SERVICE AND/OR RELATED DOCUMENTATION, OR NON-INFRINGEMENT, OR ANY IMPLIED WARRANTY ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE OR THAT THE CLOUD SERVICE WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CUSTOMER DATA WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED). THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THE PROVISION OF THE CLOUD SERVICE.
- Confidentiality. As a result of the relationship entered into by the Parties under this Agreement, the Parties acknowledge that they may from time to time require or gain access to information that is confidential or proprietary to one another (collectively, the “Confidential Information”). Confidential Information shall include, but not necessarily be limited to, (a) any software utilized by Pypestream in the provision of the Cloud Service and its respective source code; (b) each Party’s business or technical information, including but not limited to the Documentation, training materials, any information relating to software plans, designs, costs, prices, marketing plans, business opportunities, personnel, research, development or know-how that is designated by the disclosing Party as “confidential” or “proprietary” or the receiving Party knows or should reasonably know is confidential or proprietary; (c) the terms, conditions and pricing of this Agreement (but not its existence or parties); and (d) information that by its nature or under the circumstances of its disclosure should reasonably be understood to be confidential, is referred to herein as Confidential Information. For purposes of clarity, Pypestream’s obligations with respect to Customer Data are solely as set forth in Section 2 and, accordingly, Customer Data shall not be considered Confidential Information hereunder. A Party will not disclose or use any Confidential Information of the other Party except as reasonably necessary to perform its obligations or exercise its rights pursuant to this Agreement except with the other Party’s prior written permission. Each Party will protect the Confidential Information of the other Party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care.
- Compelled Disclosure. A Party may disclose the Confidential Information of the other Party to the extent required by law provided the Party so compelled promptly provides the other Party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other Party’s cost, if the other Party wishes to contest the disclosure. In the event that the receiving Party or any of its representatives is requested pursuant to, or become compelled by, any applicable law, regulation, or legal process to disclose any Confidential Information, the receiving Party shall provide the disclosing Party with prompt written notice thereof so that the disclosing Party may seek a protective order or other appropriate remedy or, in the disclosing Party’s sole and absolute discretion, waive compliance with the terms hereof. In the event that no such protective order or other remedy is obtained, or the disclosing Party waives compliance with the terms hereof, the receiving Party shall furnish only that portion of such Confidential Information, which the receiving Party is advised in writing by its counsel that is legally required, and cooperate with the disclosing Party, at the disclosing Party’s sole cost and expense, in its efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential Information. Notwithstanding the foregoing, regardless of whether disclosing Party waives compliance with the terms hereof, receiving Party will not be in breach of this Agreement in the event that it makes disclosure of Confidential Information that is required by law, regulation or legal process, in the event that the Parties hereto are unsuccessful in obtaining a protective order.
- Remedies. If a Party discloses or uses (or threatens to disclose or use) any Confidential Information of the other Party in breach of confidentiality protections hereunder, the other Party will have the right, in addition to any other remedies available, to injunctive relief to enjoin such acts, it being acknowledged by the Parties that any other available remedies are inadequate.
- Exclusions. The foregoing restrictions shall not apply to Confidential Information that (i) is or becomes publicly available through no wrongful act or omission of the receiving Party; (ii) was in the receiving Party’s lawful possession prior to the disclosure, and had not been obtained by the receiving Party either directly or indirectly from the disclosing Party; (iii) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; (iv) is independently developed by the receiving Party without reference to or reliance on the Confidential Information; or (v) that the disclosing Party agrees in writing is free of such restrictions.
- By Pypestream. Pypestream will defend, indemnify and hold Customer harmless from and against any loss, damage or costs (including reasonable attorneys’ fees) (“Losses”) arising in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by an unaffiliated third party alleging that the use of the Cloud Service as authorized hereunder infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of such third party. Pypestream will not be required to indemnify Customer for the foregoing to the extent the Claim relates to any: (i) modification of the Cloud Service by Customer or Authorized Users in conflict with Customer’s obligations or as a result of any prohibited activity as set forth herein; (ii) use of the Cloud Service in a manner inconsistent with the Documentation or this Agreement; (iii) use of the Cloud Service in combination with any other product or service not provided by Pypestream; or (iv) use of the Cloud Service in a manner not otherwise contemplated by this Agreement. If Customer is enjoined from using the Cloud Service or Pypestream reasonably believes it may be enjoined, Pypestream may, at its sole option, obtain for Customer the right to continue use of the Cloud Service or to replace or modify the Cloud Service so that it is no longer infringing. If neither of the foregoing options is reasonably available to Pypestream, then use of the Cloud Service may be terminated at Pypestream’s option and Pypestream’s sole liability will be to refund any prepaid fees for the Cloud Service that were to be provided after the effective date of termination.
- By Customer. Customer will defend, indemnify and hold harmless Pypestream, its affiliates, vendors and licensors, and each of their respective employees, officers, directors and representatives from and against any Claims and Losses arising out of or relating to: (a) use of the Cloud Service by Customer or Customer Users not in accordance with this Agreement or any Order; (b) a material breach of this Agreement or any Order, or violation of applicable law by Customer, Authorized Users or in relation to the Customer Data; or (c) an allegation that the Customer Data or its permitted use hereunder infringes, misappropriates, or otherwise violates any third party’s Intellectual Property Rights or privacy rights.
- Indemnification Procedures. The foregoing indemnification obligations are conditioned upon the indemnified Party: (i) promptly giving written notice of the Claim to the indemnifying Party; (ii) giving the indemnifying Party sole control of the defense and settlement of the Claim (provided that the indemnifying Party may not settle any Claim without the prior consent of the indemnified Party, such consent to not be unreasonably withheld or delayed); and (iii) providing to the indemnifying Party, at indemnifying Party’s sole cost and expense, all reasonable assistance. Notwithstanding the foregoing, the indemnified Party may choose, at its option, to participate in the defense and settlement of the Claim at its sole cost and expense.
8. Limitation of Liability.
- Limitation of Liability. EXCEPT AS PROVIDED IN THIS SECTION 8 AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCLUDING EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6, OR RECKLESS OR WILLFUL MISCONDUCT AND/OR FRAUD, OR GROSS NEGLIGENCE, NEITHER PARTY’S AGGREGATE LIABILITY WILL BE LIMITED IN ANY EVENT TO ACTUAL DIRECT DAMAGES UP TO THE AMOUNT PAID AND/OR PAYABLE TO PYPESTREAM DURING THE PRECEDING 12 MONTHS FOR THE SPECIFIC PRODUCT OR SERVICE THAT DIRECTLY RELATES TO SUCH DAMAGE (OR, FOR A CLAIM ARISING BEFORE THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE, THE AMOUNT PAID FOR THE FIRST 12 MONTH PERIOD).
- Exclusion of Damages. EXCEPT AS PROVIDED IN THIS SECTION 8 AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCLUDING EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6, OR RECKLESS OR WILLFUL MISCONDUCT AND/OR FRAUD, OR GROSS NEGLIGENCE, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE CLOUD SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE CLOUD SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. DAMAGES RESULTING FROM THE INTERRUPTION OF, OR INABILITY TO USE THE CLOUD SERVICE SHALL BE DERIVED FROM THE SERVICE LEVEL AGREEMENT.
9. Term and Termination.
- Term of Agreement. The term (the “Term”) of this Agreement commences on the Effective Date and shall continue for the Initial Term specified in an Order, and the Term shall automatically renew for successive 12-month periods (unless either Party provides the other written notice of non-renewal at least 30 days prior to the start of a new period); provided, that if any Order remains in effect as of the end of the Term, the Term of the Agreement shall automatically extend until the expiration of the Term of the last Order. The Term of the last Order shall control over the Term of the Agreement.
- Termination. This Agreement shall terminate the earliest of:
30 days after written notice from one Party to the other of the defaulting Party’s failure to perform according to its obligations hereunder, which failure is not cured within
- 30 days of receipt of notice of such failure to perform;
- immediately upon notice to the Customer by Pypestream for Customer’s material breach of terms in this Agreement or Order if such breach remains uncured at the expiration of such notice period; or
- immediately upon written notice by either Party hereto if the other Party (a) becomes insolvent; (b) files a petition, or has a petition filed against it, under any laws relating to insolvency, and the related insolvency proceedings are not dismissed within 60 days after the filing of such petition; (c) enters into any voluntary arrangement for the benefit of its creditors; or (d) appoints, or has appointed on its behalf, a receiver, liquidator or trustee of any of such Party’s property or assets.
- Effect of Termination. Upon any termination of this Agreement, Customer will, as of the date of such termination, immediately cease accessing and otherwise utilizing the applicable Cloud Service (except as permitted under Section 1.d) and Pypestream Confidential Information). Termination for any reason will not relieve Customer of the obligation to pay any fees accrued or due and payable to Pypestream prior to the effective date of termination and termination for any reason other than for uncured material breach by Pypestream will not relieve Customer of the obligation to pay all future amounts due under all Orders. Upon termination for cause by Pypestream, all future amounts due under all Orders will be accelerated and become due and payable immediately. Each Party shall return or destroy (at the disclosing Party’s election) the Confidential Information of the disclosing Party upon the expiration or termination of this Agreement.
- Retrieval of Customer Data. Upon request by Customer made within 30 days after any expiration or termination of this Agreement, Pypestream will make Customer Data available to Customer through the Cloud Service on a limited basis solely for purposes of Customer retrieving Customer Data for a period of up to 30 days after such request is received by Pypestream. After such 30 day period, Pypestream will have no obligation to maintain or provide any Customer Data and will thereafter, unless legally prohibited, delete all Customer Data by deletion of Customer’s instance of the Cloud Service; provided, however, that Pypestream will not be required to remove copies of the Customer Data from its backup media and servers until such time as the backup copies are scheduled to be deleted, provided further that in all cases Pypestream will continue to protect the Customer Data in accordance with this Agreement. The foregoing deletion obligation will be subject to any retention obligations imposed on Pypestream by law. During the Term, Customer may extract Customer Data using the Cloud Service’s related features and functionality.
- Survival. Sections 1.e, 1.f, 1.g, 2.a, 4, 5.b, 6, 8, 9.c, 9.d, 9.e, and 10 shall survive any expiration or earlier termination of this Agreement, as applicable.
- Termination. This Agreement shall terminate the earliest of:
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. There are no third-party beneficiaries to this Agreement.
- Notices. All notices under this Agreement will be in writing and will be deemed to have been given upon: (i) personal delivery; (ii) the third business day after first class mailing; (iii) the second business day after sending by facsimile with telephonic confirmation of receipt; or (iv) upon delivery of an email with direct reply confirmation from the other Party, in each case to the addresses for delivery specified in an Order.
- Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Pypestream’s or Customer’s employees or contractors, respectively), and/or, where Pypestream is in compliance with its security and backup obligations under this Agreement, computer attacks or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
- Assignment. Neither Party may assign, delegate, or otherwise transfer any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (which consent will not be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Orders) without consent of the other Party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets so long as the assignee agrees to be bound by all of the terms of this Agreement and all past due Fees are immediately paid in full; provided that in no event will Customer have the right to assign this Agreement to a direct competitor of Pypestream. Any attempt by a Party to assign its rights or obligations under this Agreement other than as permitted by this section will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns.
- Governing Law; Arbitration; Waiver of Jury Trial.
- Governing Law. This Agreement and all matters arising out of or relating hereto are governed by the laws of the State of New York without regard to its conflict of laws principles. Customer and Pypestream agree that any and all disputes, claims or controversies arising out of or relating to this Agreement must be submitted for arbitration in accordance with the procedures set forth in Section 10.e(ii).
- Procedures for Arbitration. In the event of a dispute between the Parties relating to this Agreement, duly authorized representatives of the Parties will use commercially reasonable efforts designed to resolve the dispute. If the dispute is not resolved within fifteen (15) calendar days of its initiation, either Party may seek to resolve the dispute in binding arbitration before JAMS, Inc. (“JAMS”) before a single arbitrator reasonably agreeable to both Parties. If the Parties cannot agree on a single arbitrator within ten (10) business days after the commencement of the arbitration, each Party shall select a neutral arbitrator who is not employed by or a consultant to either Party, and the two (2) selected arbitrators shall select a neutral third arbitrator. All arbitrators must have reasonable training and industry experience relevant to the particular dispute. The arbitration shall be held in accordance with JAMS’ Streamlined Arbitration Rules & Procedures in New York, NY unless otherwise mutually agreed. The decision shall be binding on the Parties and shall be final and nonappealable. Except with respect to actions (a) concerning a Party’s violation of the other Party’s intellectual property rights, (b) to enforce any arbitration award between the Parties, or (c) for claims of equitable relief, the dispute resolution process set forth in this Section 10.e(ii) sets forth each Party’s sole and exclusive remedy for resolving disputes (“Permitted Court Actions”).
- Jury Trial Waiver. EACH PARTY ACKNOWLEDGES THAT, BY SIGNING THIS AGREEMENT, SUCH PARTY IS KNOWINGLY AND VOLUNTARILY WAIVING ANY RIGHT THAT SUCH PARTY MAY HAVE TO A JURY TRIAL OR A COURT TRIAL OF ANY COVERED CLAIM OTHER THAN PERMITTED COURT ACTIONS.
- Export. Each Party will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Cloud Service. Without limiting the generality of the foregoing, Customer will not make the Cloud Service available to any person or entity that: (i) is located in a country that is subject to a U.S. government embargo; (ii) is listed on any U.S. government list of prohibited or restricted parties; or (iii) is engaged in activities directly or indirectly related to the proliferation of weapons of mass destruction.
- Entire Agreement; Order of Precedence. This Agreement, including all exhibits and addenda hereto, constitutes the entire agreement between the Parties with respect to the subject matter hereof. In the event of a direct conflict, the provisions of an Order will take precedence over provisions of the body of this Agreement. This Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
- Modifications, Amendments, and Waivers; Severability. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted. If any provision of this Agreement is held by a panel or court of competent jurisdiction to be contrary to law, the provision will be modified by the panel or court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument. The Parties hereby consent to the use of electronic signatures in connection with the execution of this agreement, and further agree that electronic signatures to this agreement will be legally binding with the same force and effect as manually executed signatures.
- Marketing. Neither Party shall issue or release any announcement, statement, or press release relating to this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Pypestream may, without Customer’s consent, include Customer’s name and other indicia in Pypestream’s lists of current or former customers and reference account list in promotional and marketing materials in print and digital. Each Party retains the right to require the other to withdraw any use of the Party’s name and trademark where the Party reasonably considers that such use of such name or trademark is derogatory, defamatory or detrimental to the Party or in any way damages the Party’s business or reputation.