Effectiv and Client will be individually referred to as “Party” and collectively as “Parties”.
The parties agree as follows:
1.1 “Affiliate” means, with respect to each party, an entity that controls, is controlled by, or is under common control with such party, where “control” means the beneficial ownership of more than fifty percent (50%) of the voting power or other equity interest with voting rights in an entity.
1.2 “Applicable Law” means any and all applicable laws, directives, rules, regulations and ordinances of any federal, state, local, or other governmental or regulatory authority that relate to the applicable party, the Services or this Agreement, including but not limited to the Gramm-Leach-Bliley Act (15 U.S.C. 6801 et seq.), Equal Credit Opportunity Act (15 U.S.C. 1691 et seq.), Fair Credit Reporting Act (15 U.S.C. 1681 et seq.), and the EU General Data Protection Regulation 2016/679, and their respective implementing regulations and any similar state, federal or non-US requirements.
1.3 “Client Application” means the software applications owned or licensed by Client and used by Client to communicate with and interoperate with the Platform.
1.4 “Client Integrated Service” means a third-party product or service, including the information and data contained in or made available through such product or service, that Client licenses, purchases or otherwise obtains from such third party that Effectiv is permitted to access and use on Client’s behalf, including through an application programming interface that Effectiv integrates with the Platform. For clarification, Client Integrated Services do not include Third-Party Services.
1.5 “Client Marks” means Client’s logos, marks and other promotional designs or graphics.
1.6 “Client Materials” means the Client Applications, Client Marks, Client Output and Customer Data.
1.7 “Client Provider” means a third-party provider or supplier to Client of Client Integrated Services.
1.8 “Client Output“ means the records and other output specifically related to Client that is provided to Client as a result of processing of Customer Data by the Software through the Platform. For avoidance of doubt, Client Output does not include Usage Data.
1.9 “Confidential Information” means any non-public, confidential, or proprietary information of the disclosing party that is clearly marked confidential or reasonably should be assumed to be confidential given the nature of the information or the circumstances of disclosure.
1.10 “Customer” means any current or prospective customer of Client.
1.11 “Customer Data” means the data or information relating to a Customer that is submitted through the Platform by Client or Users for processing by the Software, which may include Personal Data.
1.12 “Documentation” means the user manuals and technical documentation regarding use of the Software that are made available by Effectiv, as may be revised by Effectiv from time to time.
1.13 “Effectiv API” means the Effectiv application programming interface that enables integration of the Software with Client’s application(s) to facilitate access to the Platform through such application(s).
1.14 “Effectiv Materials” means the Effectiv API, Platform, Software, Documentation, Services, Usage Data and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, software and other technologies that are provided, created, developed or used by Effectiv or any subcontractor, agent or representative of Effectiv in connection with the Services, and also including any Feedback (as defined in Section 5.3 below). Effectiv Materials does not include Customer Materials.
1.15 “Fees” means the fees for the Services as set forth in the applicable Order Schedule.
1.16 “Order Schedule” means the written order confirmation issued by Effectiv that specifies Client’s purchase of the right to access and use the Platform, and which may include other details regarding the Permitted Use, in substantially the form of Exhibit A.
1.17 “Permitted Use” means Client’s internal business purposes in detecting and preventing fraud, crime or suspicious activity, including in conducting due diligence or other decision-making activities with respect to Customers, in each case only for the Client use case(s) identified in an Order Schedule along with any other limitations and/or restrictions on use (e.g., number of users, transactions, etc.), if any, and in compliance with Applicable Law, this Agreement (including any applicable Third-Party Terms), and any applicable Client Integrated Service Terms.
1.18 “Personal Data” means any data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of Effectiv, and that is protected by Applicable Law relating to privacy, security and data protection.
1.19 “Platform” means the Effectiv API, Software, and any information, data or other content of Effectiv or any subcontractor, vendor or agent of Effectiv contained in or made available to Client through the forgoing, but excluding the Third-Party Services, Client Integrated Services, Customer Data and Client Output.
1.20 “Professional Services” means any implementation services and/or other professional services provided by Effectiv to Client with respect to Client’s use of the Platform.
1.21 “Services” means, individually and collectively, Effectiv’s provision to Client of access to and use of the Platform, along with the Professional Services and any other services provided by Effectiv pursuant to this Agreement.
1.22 “Software” means the applicable Effectiv fraud operations software product(s) made available by Effectiv to Client as provided in the applicable Order Schedule, including any Updates provided by Effectiv to Client.
1.23 “Subscription Term” means the term of Client’s authorized access and use of the Platform, as in the applicable Order Schedule.
1.24 “Third-Party Provider” means a third-party provider or supplier to Effectiv of Third-Party Services.
1.25 “Third-Party Services” means a product or service provided by a third party, including any information and data contained in or made available through such product or service, together with any related documentation, instructions or other materials (in any form or medium), that Effectiv is authorized to resell, license, sublicense or otherwise make available to Client through the Effectiv Platform. Third-Party Services do not include Client Integrated Services.
1.26 “Updates” means any and all bug fixes, work arounds, updates and other revisions of the Software provided by Effectiv to Client.
1.27 “Usage Data” means (a) any diagnostic and usage-related information from the use, access, performance and operation of the Effectiv Materials by or on behalf of Client or any User, including any end user profile, visit, session, impression, clickthrough or click stream data, and any statistical or other analysis, information or data based on or derived from any of the foregoing; and/or (b) any data that is created or derived by Effectiv, or is the output of processing Customer Data by the Platform or Third-Party Services, and has been anonymized using technical safeguards and business processes designed to prevent reidentification, such that the anonymized data cannot be reasonably linked to a particular Customer.
1.28 “User” means Client’s employees, independent contractors, and other agents authorized by Client to access and use the Platform on Client’s behalf.
The terms “Process”, “Processor” and “Controller” shall have the meaning given to them in the EU General Data Protection Regulation 2016/679.
2.1 Order Schedules. Client may purchase Services from Effectiv pursuant to one or more Order Schedule(s). The initial Order Schedule(s) is/are attached to this Agreement as Order Schedule #1, and subsequent Order Schedule(s) will be numbered sequentially. All Order Schedule(s) that are executed by both parties are expressly made a part of this Agreement as though fully set forth herein.
2.2 Access to the Platform and License Grants. During the applicable Subscription Term, and subject to the terms and conditions of this Agreement, including but not limited to Client’s payment of Fees, Effectiv will make available to Client, and Client may access, the Platform, and any Third-Party Services set forth in the Order Schedule, in each case only within the scope of the Permitted Use. In addition, Effectiv grants Client a non-exclusive, non-transferable license to access and use (a) the Effectiv API solely to develop, maintain and use Client Applications as set forth in the Order Schedule, and (b) the Documentation only in support of Client’s use of the Platform and the Effectiv API and the Permitted Use. Client may make copies of the Documentation for backup/archival purposes (provided that all copies retain all notices of proprietary rights included in the original).
2.3 Restrictions. Unless otherwise expressly provided in the Order Schedule, Affiliates of Client are not authorized to access or use the Platform or any Services. Further, and except as expressly permitted in this Agreement, Client will not (and will not permit any User or third party to): (a) sublicense, resell, rent, lease, distribute or otherwise transfer rights to, or usage of, all or any portion of the Platform or other Effectiv Materials, to anyone else, including without limitation making the Platform available on a timesharing, service bureau, or other similar basis; (b) modify, adapt, translate, create derivative works of, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of, any part of the Platform; (c) remove, modify, or obscure any proprietary rights notices contained in or included with the Platform; (d) attempt to gain unauthorized access to the Platform, or to disrupt, degrade, impair, or violate the integrity, security, or performance of the Platform or other Effectiv Materials; (e) access or use the information provided through the Platform via mechanical, programmatic, robotic, scripted or other automated search means, other than through batch or machine-to-machine applications approved by Effectiv; (f) access or use any Platform or other Effectiv Materials in order to build a competitive product or service; (g) publicly disseminate Platform performance information or analysis (including without limitation benchmarks) except with Effectiv’s prior written consent; (h) use the Platform to store or transmit any viruses or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; (i) take any action that imposes or may impose an unreasonable or disproportionately large load on the Platform or other Effectiv Materials, as determined by Effectiv in its sole discretion; (j) disable or circumvent any monitoring, billing or other technological security mechanism in the Platform; or (k) access or use the Platform in a manner that violates Applicable Law or infringes or violates any third party rights.
2.4 Third Party Software.The Platform may include, or the Effectiv API may be distributed alongside, certain third party and/or open source software, as set forth in more detail in the Documentation or otherwise by Effectiv. Notwithstanding any other provision of this Agreement, (a) use, reproduction and distribution of such software is governed by the third party and/or open source license terms, and (b) Effectiv makes no warranties and will have no obligations or liabilities with respect to such software.
2.5 Certain Client Responsibilities.
(a) Account. Client is responsible for Client’s and Users’ access and use of the Platform and Services, including all activity occurring under Client’s and User’s accounts, and compliance by all Users with this Agreement, including terms relating to Third-Party Services. Client will use (and will require Users to use) reasonable measures to protect the account information and access credentials (including passwords and devices or information used for multi-factor authentication purposes) used by Client and Users to access the Platform. Client will immediately deactivate the account of any User who no longer requires access to the Platform, or for terminated Users on or prior to the date of termination.
(b) Unauthorized Use. Client will ensure that none of its Users obtains or uses any information from the Platform for any personal reasons or reasons other than those specifically permitted by this Agreement or transfers any information received through the Platform to any party except as expressly permitted hereunder. Client will promptly notify Effectiv of any unauthorized account use or other suspected security breach, or unauthorized use, copying, or distribution of the Platform or other Effectiv Materials.
(c) Client Applications. Client shall be capable of receiving data from the Platform where such data is provided utilizing “secure socket layer,” or such other means of secure transmission as is deemed reasonable by Effectiv. Client shall take all reasonable steps to protect its networks and computer environments, or those used to access the Platform, from compromise or unauthorized access. Unless otherwise expressly agreed to by Effectiv and Client under separate terms and conditions for professional services, Client shall be solely responsible for the interoperability and configuration of the Platform with the Client Applications and other software applications, products, system, network or infrastructure that are owned by Client or licensed from a third party by Client and used by Client in connection with the Platform. Effectiv has no responsibility for Client’s ability or inability to use the Client Materials or other Client infrastructure with the Platform.
(d) Review. Effectiv may from time to time review or monitor Client’s and its Users’ access to and use of the Platform and other Effectiv Materials and Third-Party Services to confirm that Client is acting in compliance with this Agreement, including any applicable Third-Party Provider terms.
2.6 Client Subcontractors. If Client wishes to authorize its Platform account access to any third party subcontractor, Client will notify Effectiv in writing, and Effectiv may require such subcontractor to enter into a separate agreement with Effectiv with respect to such access. Client will ensure that its subcontractors are bound by an agreement containing terms that are no less restrictive or protective of Effectiv’s rights than the applicable terms of this Agreement, including those set forth in Section 2.3 (Restrictions) and in Section 4 (Confidentiality), and in any event Client remains responsible for all use of the Platform and other Effectiv Materials by any such subcontractors and for compliance with this Agreement.
2.7 Customer Data. Client is solely responsible for all Customer Data, including but not limited to its accuracy, quality, and legality. Client represents and warrants that it: (a) has the legal rights to provide and use Customer Data in connection with the Platform; and (b) will comply with all Applicable Laws, including laws and regulations relating to the collection, processing and use of Customer Data pursuant to this Agreement. Client is responsible for taking and maintaining appropriate steps to protect the confidentiality, integrity, and security of Customer Data, including but not limited to: (i) controlling access that Client provides to Users; and (ii) backing up Customer Data. Client grants Effectiv a non-exclusive, worldwide, royalty-free license to access and use the Customer Data to perform its obligations ,including to provide, maintain and improve the Services, or prevent or address any technical problems, or at Client’s request in connection with support requests and in accordance with this Agreement and the Data Processing Agreement signed by the Parties, and otherwise exercise its rights under this Agreement.
2.8 Third-Party Services. The Platform may enable Client to access and use Third-Party Services, as provided in the Order Schedule. Effectiv and Client shall enter into a separate addendum which will set out in detail the terms and conditions under which the Client may access and use such Third-Party Services (“Addendums”). Third-Party Services are provided by the Third-Party Provider and, for purposes of this Agreement, are not part of the Platform. Client’s use of Third-Party Services will be subject to the terms and conditions of the Addendum and, except where such Third-Party Providers are identified as sub-processors in the Data Processing Agreement, the privacy policies of Third-Party Providers. Effectiv shall not be liable for the Client’s enablement, access or use of such Third-Party Services, including the Customer Data Processed by such Third-Party Provider, except where such Third-Party Providers are identified as sub-processors in the Data Processing Agreement. The Client should contact that Third- Party Provider for any issues arising in connection with use of such Third-Party Services. Client is solely responsible for complying with the terms of the relevant Addendum, including any separate fees or charges imposed by the Third-Party Provider, as set forth in the applicable Order Schedule. Client agrees that Effectiv may access and use the Third-Party Services on Client’s behalf, and to transmit and provide Customer Data and other Customer Materials in connection with such use of Third-Party Services. Client acknowledges and agrees that, except where such Third-Party Providers are identified as sub-processors in the Data Processing Agreement, Client and Third Party Provider are each independent Controllers to the other with respect to any Personal Data forming part of information and data contained in, made available or accessible to Client through the Third-Party Services, and are each responsible for compliance with their respective obligations under Applicable Laws. In the event of any conflict between the terms of the Addendum and any term of this Agreement, the terms of the Addendum will govern and control with respect to Client’s use of the Third-Party Services.
2.9 Client Integrated Services. If expressly agreed to by Effectiv in the applicable Order Schedule, the Platform may enable Client to access and use Client Integrated Services. Client Integrated Services are provided by the Client Provider and are not part of the Platform, and Effectiv does not control and is not responsible for the Client Integrated Services. Client is solely responsible for complying with any terms of access and use of the Client Integrated Services, including any separate fees or charges imposed by the provider of the Client Provider. Client agrees that Effectiv may access and use the Client Integrated Services on Client’s behalf, and to transmit and provide Customer Data and other Customer Materials in connection with such use of Client Integrated Services. Client acknowledges and agrees that Client and Client Provider are each independent Controllers to the other with respect to any Personal Data forming part of information and data contained in, made available or accessible to Client through the Client Integrated Services, and are each responsible for compliance with their respective obligations under Applicable Laws. Client must have, prior to and for the duration of the applicable Subscription Term, a binding agreement with the Client Provider (“Client Integrated Service Agreement”) that authorizes Client to (a) access and use such Client Integrated Service in connection with the Platform as provided by this Agreement, and (b) permit Effectiv to access and use the Client Integrated Services on Client’s behalf. Client will immediately notify Effectiv and must cease using the Client Integrated Service(s) if the Client Integrated Service Agreement terminates for any reason. Client will provide the Client Integrated Service Agreement to Effectiv prior to the Subscription Term as part of the discussion of the Order Schedule, and promptly upon notice of any updates or modifications throughout the Subscription Term. If the Client Integrated Service Agreement imposes any material restriction, limitation or condition on Effectiv’s access to or use of the Client Integrated Services, Effectiv will notify Client and, without any liability to Client, may cease access and use of the Client Integrated Services unless and until Client is able to resolve the matter to Effectiv’s reasonable satisfaction.
2.10 Service Level Agreement. Subject to the terms and conditions of the Agreement, Effectiv will use commercially reasonable efforts to make the Platform available in accordance with Effectiv’s Service Level Agreement available at https://effectiv.ai/sla.html. EFFECTIV DOES NOT GUARANTEE THAT CLIENT’S USE OF THE PLATFORM WILL BE ERROR-FREE OR UNINTERRUPTED. Client acknowledges and agrees that Effectiv may interrupt access to and use of the Platform as Effectiv deems necessary in order to maintain, repair, restructure or make adjustments to the Platform. Effectiv will use commercially reasonable efforts to perform maintenance during non-business hours and to provide Client prior notice of any prolonged service interruptions. Client acknowledges that, in certain situations, Effectiv may need to perform emergency maintenance without providing prior notice.
2.11 Security Obligations. During the term of this Agreement, Effectiv will use commercially reasonable efforts to do the following:
(a) Effectiv Security Obligations. Effectiv will employ administrative, physical and technical measures in accordance with applicable industry practice designed to protect the Platform and to prevent the accidental loss or unauthorized access, use, modification or disclosure of Customer Data under
Effectiv’s control. Such measures will take into account the nature and types of information made available through the Platform, Third-Party Services and Client Integrated Services.
(b) Compliance Records. Effectiv will maintain records relating to its data protection, privacy and security practices, including applicable policies concerning backup, disaster recovery and other policies, practices or procedures, evidence of insurance coverage, annual penetration testing results, and independent audit reports evidencing Effectiv’s SOC 2 Type 2 certification. Upon Client’s reasonable request, Effectiv will make such records available to Client (as Confidential Information of Effectiv).
(c) Data Breach Response. Effectiv will maintain a written plan to manage and mitigate against the compromise of Effectiv’s environment or systems that results in the unauthorized use or disclosure of Personal Information that is part of Customer Data (“Data Breach”). In the event of a Data Breach, Effectiv will: (i) notify Client promptly (and in any event, within seventy-two (72) hours) after Effectiv’s determination of a Data Breach; (ii) take all reasonable steps to stop and remediate the Data Breach; (iii) promptly notify Client of the corrective actions taken by Effectiv and provide Client with any details known by Effective regarding the Data Breach, upon Client’s reasonable request; and (iv) upon request, provide Client with a single point of contact for communications regarding the Data Breach.
2.12 Modifications. Effectiv reserves the right to modify the Platform and other Effectiv Materials at its discretion, including without limitation modifications, additions or deletions of features, functionalities, and content available through the Platform. Effectiv will use commercially reasonable efforts to notify Client of any material changes which Effectiv reasonably believes will adversely affect Client’s ability to access or use the Platform. If any such change by Effectiv does materially and adversely affect Client’s use of the Platform, and after notice to Effectiv, the parties are unable to resolve the matter within a reasonable period of time (not less than thirty (30) days after Client’s notice to Effectiv), then Client may terminate this Agreement upon at least sixty (60) days’ notice to Effectiv.
2.13 Suspension Right. Effectiv may immediately suspend Client’s or User’s access and use of the Platform or other Client Materials, and/or any Third-Party Services or Client Integrated Services, if: (a) Effectiv believes there is a significant threat to the functionality, security, or integrity to Effectiv, Client, other customers or any third party; (b) Client or User is in violation of Section 2.3 (Restrictions); (c) Client fails to pay the Fees in accordance with this Agreement; (d) continued access or use would violate Applicable Law; or (e) as applicable, the Third-Party Provider or Client Provider suspends, restricts or terminates access or use; or (f) any other third party vendor or provider suspends or terminates its product or service that is necessary for Effectiv to provide the applicable Client Material (in which case Effectiv will use commercially reasonable efforts to obtain a substitute product or service within a reasonable period of time (no less than 10 business days). Effectiv will use reasonable efforts to re-establish access promptly if and when Effectiv determines that the issue causing the suspension has been resolved. Any suspension under this Section will not excuse Client’s payment obligations under this Agreement if Client is able to substantially continue to use the Services.
2.14 Host Provider. Notwithstanding any other provision of this Agreement, Client acknowledges that Effectiv uses a third party provider (currently Google Cloud Platform (GCP)) for data center services with respect to the Platform and/or other Services (“Host Provider”), and Client agrees that the terms of this Agreement, including without limitation those relating to security, insurance requirements, business continuity, disaster recovery, service level commitments and the like do not apply to the Host Provider, except and to the extent the Host Provider has otherwise agreed to any such terms.
2.15 Client Output. Unless otherwise instructed by Client, including Client’s account settings configuration for the Platform, Effectiv will use commercially reasonable efforts in accordance with this Agreement to maintain and make available the Client Output to Client through the Platform during the Subscription Term. Upon any termination of this Agreement, Effectiv will, at Client’s option (of which Client notified Effectiv within ten (10) business days after termination), destroy or (if reasonably practicable) return to Client the Client Output; provided that Effectiv may retain Client Output (a) as necessary to comply with Applicable Law, including compliance with legal or regulatory obligations of Effectiv and/or Third-Party Providers; and (b) as part of its data backup, logs and recovery systems, which Effectiv will delete in its normal course of business. If Client does not notify Effectiv whether to destroy or return Client Output within the 10-business day period, Effectiv may destroy the Client Output without any liability or further obligation to Client.
3.1 Fees and Payment. The Fees owed by Client to Effectiv are set forth on the Order Schedule(s). Client will pay Effectiv the Fees within thirty (30) days of the invoice date in U.S. dollars and via the payment method specified on the invoice, unless otherwise noted in the Order Schedule. Effectiv reserves the right to increase Fees (a) for each Subscription Term upon at least sixty (60) days written notice prior to the commencement of the Subscription Term, and (b) for Third-Party Services and/or Client-Integrated Services at any time, to reflect increased charges imposed by the Third-Party Provider or Client Provider, as applicable. Any Fees not paid when due will be subject to finance charges equal to the lesser of: (a) one and one-half percent (1.5%) per month; or (b) the highest rate permitted by applicable law, determined and compounded daily from the date due until the date paid.
3.2 Committed Fees; Overages. If Client commits to minimum usage or Fees, such minimums apply during the entire applicable Subscription Term and may not be decreased during such Subscription Term without Effectiv’s prior written consent. If Client exceeds any maximum usage of the Platform agreed to in the Order Schedule, Client will be invoiced for and will pay overage Fees at the overage rate set forth in the Order Schedule, unless the parties otherwise agree in writing.
3.3 Taxes. All Fees are exclusive of value added tax and any other federal, state, municipal, or other governmental taxes, duties, licenses, fees, excises, or tariffs, and Client is responsible for paying any taxes assessed based on Client’s purchases under this Agreement. If, pursuant to Applicable Law, Client is required to deduct or withhold any taxes from its payment to Effectiv, Client will such additional amounts so that Effectiv receives from Client the entire Fees owed.
4.1 Confidentiality. Each party acknowledges that it (“Receiving Party”) may have access to Confidential Information of the other party and its Affiliates (“Disclosing Party”) in connection with this Agreement. Effectiv’s Confidential Information includes without limitation performance, technical, pricing and other non-public information regarding the Platform and other Effectiv Materials and the Third-Party Services, and Client’s Confidential Information includes the Customer Data and non-public information regarding other Customer Materials. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of a similar nature but not less than reasonable care. The Receiving Party agrees to (i) not use any Confidential Information for any purpose other than to perform its obligations and exercise its rights under this Agreement, and (ii) restrict disclosure of Confidential Information only to individuals or third parties with a “need to know” such information in furtherance of this Agreement and who are under a substantially similar duty of confidentiality as provided in this Section 4. The Receiving Party may disclose the Disclosing Party’s Confidential Information in any legal proceeding or as required by Applicable Law; provided, however, that to the extent permitted by Applicable Law, the Receiving Party will (1) promptly notify the Disclosing Party before disclosing the Disclosing Party’s Confidential Information; (2) reasonably cooperate with and assist the Disclosing Party, at the Disclosing Party’s expense, in any efforts by the Disclosing Party to contest the disclosure; and (3) disclose only that portion of the Disclosing Party’s Confidential Information that is legally required to be disclosed.
4.2 Confidentiality Exclusions. Notwithstanding the foregoing, a Disclosing Party’s Confidential Information will not include information that: (i) is or becomes a part of the public domain through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure by the Disclosing Party 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 the disclosure; or (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
4.3 Usage Data. In the course of Client’s use of the Platform, Effectiv may collect, access, use, process, transmit and/or store Usage Data in order to provide services to its customers, and for product improvement, research and development and other business purposes. Effectiv retains all intellectual property and proprietary rights in and to such Usage Data and may use and disclose such data at its sole discretion; provided that any such data that is shared with third parties must be aggregated, anonymized, de-identified, or otherwise disclosed in the manner such that it cannot reasonably be linked to an identifiable individual or to Client or Users.
4.4 Security. Effectiv shall use appropriate technical and organizational measures to protect the Customer Data and Client Output. The measures used are designed to provide a level of security appropriate to the risk of Processing the Customer Data and Client Output.
4.5 General Data Protection Regulation. The Parties acknowledge and agree that with respect to the Processing of Personal Data forming part of Customer Data and Client Output, Effectiv is the Processor.
4.6 California Consumer Protection Act. Client acknowledges and agrees that Client is the “Business” and Effectiv is the “Service Provider” with respect to “Personal Information” of “Consumers” (as those terms are understood under the CCPA) forming part of Customer Data and Client Output.
4.7 Disclosure of Customer Data. The Client acknowledges and agrees that Effectiv and its Affiliates may access or disclose information about the Client, the Client’s Account, Users, including Customer Data, in order to (a) comply with the law or respond to lawful requests or legal process; or (b) seek advice from its professional advisors who are subject to confidentiality obligations, to prevent any infringement of Affiliates’ or Effectiv’s customers’ proprietary rights. Further, at Effectiv’s sole discretion, any suspected fraudulent, abusive, or illegal activity by the Client may be referred to law enforcement authorities.
5.1 Client Ownership. Except as expressly provided otherwise in this Agreement, as between Effectiv and Client, Client retains all right, title, and interest in and to Customer Data and other Client Materials.
5.2 Effectiv Ownership. As between Effectiv and Client, Effectiv retains all right, title, and interest, including all intellectual property rights, in and to the Platform and all other Effectiv Materials, including all improvements, enhancements, modifications, derivative works, logos, and trademarks. Effectiv reserves all rights in and to the Platform that are not expressly granted under this Agreement.
5.3 Feedback. Client or Users may provide suggestions, enhancement or feature requests, or other feedback to Effectiv with respect to the Platform, Effectiv API, Software, Documentation, or any Services (“Feedback”). If Client or Users provide Feedback, Client agrees that Effectiv may freely use the Feedback (including incorporating the Feedback into Effectiv’s products and technologies) without restriction and without paying any compensation to Client or Users.
6.1 Authority; Compliance. Effectiv and Client each represent and warrant that (a) it has full legal power to enter into and to perform pursuant to this Agreement; and (b) performance by the party under this Agreement will not conflict with, result in a breach of, constitute a default under, or require the consent of any third party under any obligation (including license, sublicense, lease, contract or agreement) or instrument to which the party is bound. Client warrants that with respect to its Affiliates to whom Client provides access to the Platform, Client has the right to bind such Affiliates, or they are otherwise bound by written agreement, to the terms and conditions of this Agreement, and Client acknowledges and agrees that Effectiv has the same rights and remedies under this Agreement with respect to any default by Affiliates of Client of such terms and conditions as if such default were committed by Client.
6.2 Additional Effectiv Warranties. Effectiv warrants that, during the Subscription Term, the Software will perform substantially in compliance with the corresponding Documentation. The foregoing warranty shall not be valid if Effectiv determines that the defect resulted from (a) modification of the Platform without prior written approval of Effectiv or made pursuant to Client’s instructions, requirements or specifications, (b) hardware failure or failure of hardware to conform with applicable standards, (c) misuse of the Platform, or (d) damage from accident, acts of nature or other cause outside Effectiv’s control. Client’s sole and exclusive remedy for Effectiv’s breach of the foregoing warranty shall be for Effectiv to use reasonable efforts to correct such defect in a timely manner. This warranty is conditioned upon Client providing Effectiv prompt written notice of the Platform’s non-conformity, using the Platform in compliance with this Agreement, and complying with Effectiv’s reasonable instruction with respect to the Platform.
6.3 Additional Client Warranties. Client represents, warrants and covenants that (a) Client will have all right, licenses and consents to provide the Client Materials that Client provides to Effectiv pursuant to this Agreement, including the Customer Data and Client Marks, and that the use of the Client Materials in accordance with this Agreement will comply with all Applicable Law, and (b) Client’s access to and use of the Services and Third-Party Services and Client-Integrated Services will be for the Permitted Use only.
6.4 Warranty Disclaimer. EXCEPT AS EXPRESSLY STATED IN SECTION 6.1 AND 6.2, TO THE EXTENT ALLOWED BY APPLICABLE LAW, EFFECTIV EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY, CONDITION, OR OTHER IMPLIED TERM AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THE PLATFORM AND OTHER EFFECTIV MATERIALS. EFFECTIV MAKES NO WARRANTY OR REPRESENTATION THAT THE PLATFORM OR OTHER EFFECTIV MATERIALS: (A) WILL BE UNINTERRUPTED, COMPLETELY SECURE, ERROR-FREE, OR FREE OF VIRUSES; OR (B) WILL MEET CLIENT’S BUSINESS REQUIREMENTS OR OPERATE WITH CLIENT MATERIALS. EFFECTIV IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION, OR SECURITY OF THE PLATFORM THAT ARISE FROM CLIENT MATERIALS, CLIENT INTEGRATED SERVICES, THIRD-PARTY SERVICES, OR ANY OTHER TECHNOLOGIES, SERVICES OR OTHER MATERIALS PROVIDED BY THIRD PARTIES. EFFECTIV DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY INTERCEPTION OR INTERRUPTION OF ANY COMMUNICATIONS THROUGH THE INTERNET, NETWORKS, OR SYSTEMS OUTSIDE EFFECTIV’S CONTROL.
7.1 Disclaimer of Consequential Damages. IN NO EVENT WILL EFFECTIV OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUES, BUSINESS, PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), OR DATA IN CONNECTION WITH THIS AGREEMENT OR THE PLATFORM, EVEN IF THE DAMAGES WERE FORESEEABLE OR EFFECTIV HAD BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
7.2 Liability Cap. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EFFECTIV OR ITS AFFILIATES FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PLATFORM EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO EFFECTIV UNDER THIS AGREEMENT DURING THE APPLICABLE SUBSCRIPTION TERM.
7.3 NO THIRD-PARTY PROVIDER LIABILITY. IN NO EVENT WILL ANY THIRD-PARTY PROVIDER BE LIABLE FOR ANY LOSS, INJURY OR DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO EFFECTIV’S OR ITS AFFILIATES’ ACTS OR OMISSIONS IN PROVIDING THE SERVICES, PERFORMING PRUSUANT TO THIS AGREEMENT, OR OTHERWISE DELIVERING THE SERVICES OR ACCESSING THE THIRD-PARTY SERVICES THROUGH THE PLATFORM.
7.4 Scope of Limited Liability. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION 7.1 APPLY (A) WHETHER SUCH CLAIMS ARISE UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), EQUITY, STATUTE, OR OTHERWISE, AND (B) NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. NOTHING IN THIS AGREEMENT LIMITS OR EXCLUDES ANY LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW.
8.1 Indemnification by Effectiv.
(a) Effectiv will defend and indemnify Client from any third party claim, action, suit, or proceeding alleging that Client’s access and use of the Platform in accordance with this Agreement infringes such third party’s patent, trademark, or copyright (“IP Claim”). Effectiv will pay Clients’ reasonable attorney’s fees and costs actually and necessarily incurred prior to tendering defense of the IP Claim to Effectiv, and will pay any damages finally awarded against Client by a court of competent jurisdiction or agreed to by Effectiv in a settlement. If an IP Claim is made or appears likely to be made, Effectiv, in its sole discretion, may: (i) procure the right for Client to continue accessing or using the Platform under the terms of this Agreement; or (ii) modify or replace the Platform to be non-infringing without material decrease in functionality. If Effectiv, in its sole discretion, determines that neither of the foregoing options is reasonably feasible, Effectiv may terminate Client’s subscription to the Platform upon written notice, and provide a pro rata refund of the fees paid by Client to Effectiv for the remainder of the applicable Subscription Term. The foregoing shall be Effectiv’s entire obligation and liability, and Client’s exclusive remedy, in connection with any IP Claim.
(b) Effectiv will have no indemnity obligation for any claim to the extent such IP Claim, in whole or in part, is based on: (i) a modification of the Platform by Client or a third party; (ii) access or use of the Platform in a manner that violates the terms and conditions of this Agreement; (iii) technology, designs, instructions, or requirements provided by Client or a third party on Client’s behalf; (iv) combination, operation, or use of the Platform with non-Effectiv products, software, services, or business processes, if a claim would not have occurred but for such combination, operation, or use; or (v) Client Materials or Third Party Services.
(c) Client will: (i) promptly notify Effectiv in writing of any indemnifiable claim; (ii) give Effectiv all reasonable assistance, at Effectiv’s expense; and (iii) give Effectiv sole control of the defense and settlement of the claim. Any settlement of a claim will not include a specific performance obligation (other than the obligation to cease using the Service or the payment of money), or an admission of liability by Client, without Client’s consent. Client may join in the defense of an indemnifiable claim with counsel of its choice at its own expense but may not settle or compromise the claim without Effectiv’s prior express written consent.
8.2 Indemnification by Client.
(a) Client will defend and indemnify Effectiv from any third party claim, action, suit, or proceeding relating to (i) Client’s (including any User’s) breach of this Agreement, including any part of Section 2.5 or any applicable Third-Party Provider terms or Client Provider terms; (ii) the Customer Data, including Effectiv’s use of the Customer Data as permitted under this Agreement; (iii) the Client Integrated Services; or (iv) any action taken by Effectiv in accordance with Client’s (including its Users’) instructions. Client will pay Effectiv’s reasonable attorney’s fees and costs actually and necessarily incurred prior to tendering defense of the claim to Client, and will pay any damages finally awarded against Effectiv by a court of competent jurisdiction or agreed to by Client in a settlement.
(b) Effectiv will: (i) promptly notify Client in writing of any indemnifiable claim; (ii) give Client all reasonable assistance, at Client’s expense; and (iii) give Client sole control of the defense and settlement of the claim. Any settlement of a claim will not include a specific performance obligation other than payment of money, or an admission of liability by Effectiv, without Effectiv’s consent. Effectiv may join in the defense of an indemnifiable claim with counsel of its choice at its own expense but may not settle or compromise the claim without Client’s prior express written consent.
9.1 Term. This Agreement is effective as of the Effective Date and will remain in effect until the earlier of (a) expiration of the applicable Subscription Term, or other termination, of all Order Schedules under this Agreement, or (b) termination of this Agreement in accordance with its terms.
9.2 Termination of Subscription. Either party may terminate this Agreement and any then-current applicable Order Schedule if the other party (i) materially breaches its obligations under this Agreement and does not cure the breach within thirty (30) days after receipt of written notice of the breach; or (ii) files or has filed against it, any proceeding in bankruptcy or for the appointment of a receiver or any other proceedings under any law for the relief of debtors, or ceases to do business in the ordinary course.
9.3 Effect of Termination. Upon termination or expiration of this Agreement: (a) all Client rights under this Agreement relating to the Platform will immediately terminate; (b) Client is no longer authorized to access or use the Platform, including Client’s account on the Platform, and other Effectiv Materials; and (c) Client promptly must destroy any and all copies of the Effectiv API, Documentation and other Effectiv Materials within Client’s possession or under its control, and provide Effectiv with written certification of such destruction. Upon any termination by Client for Effectiv’s uncured material breach of the Agreement, Effectiv will provide or authorize a pro rata refund of the Fees paid by Client to Effectiv as applicable to the Subscription Term after termination. Upon any termination by Effectiv for Client’s uncured material breach of the Agreement, Client will pay any Fees covering the remainder of the then-current Subscription Term if such Fees have not already been paid to Effectiv (and if they already had been prepaid, Effectiv will be entitled to retain such Fees).
9.4 Disposition of Customer Data and Client Output upon Termination. Subject to Section 2.15, after termination or expiration of this Agreement, Client agrees that Effectiv has no obligation to Client to retain Customer Data or Client Output, which may thereafter be permanently deleted by Effectiv. Effectiv will protect the confidentiality of Customer Data and Client Output residing in the Service for as long as such information resides in the Service.
9.5 Termination of Addendum. An Addendum may be terminated by either Party in accordance with the terms specified therein. Termination of an Addendum shall not affect the continuity of this Agreement. The termination of this Agreement shall result in the termination of all existing Addendums signed between the Parties.
10.1 General. Each party agrees to comply with all Applicable Laws applicable to such party’s performance under this Agreement.
10.2 Export Licenses. The Platform and other Effectiv Materials that may be provided to Client are subject to U.S. export control laws and regulations, and Client is solely responsible for ensuring that its compliance with all such laws and regulations. Client is responsible for obtaining any licenses or authorizations required to export, reexport, transfer or import the Platform and the output created using the Platform. In particular, the Platform may not, in the absence of authorization by U.S. and local law and regulations, as required, be used by or exported or reexported to (i) any U.S. sanctioned or embargoed country, or to nationals or residents of such countries; or (ii) any person, entity, organization or other party identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons List, or the Department of State’s Denied Persons List or Entity List, as published and revised from time to time; or (iii) any party engaged in proliferation activities or geospatial imagery analysis. Client agrees that Effectiv has no obligation to provide the Platform where Effectiv believes the provision of the Platform could violate any applicable export control or sanctions laws.
11.1 Assignment. Neither party may assign or transfer this Agreement without the other party’s prior written consent; provided that, without such consent, each party may assign and transfer this Agreement and its rights or obligations under this Agreement, to an Affiliate or in connection with a transfer of the majority of its stock or all or substantially all of its assets, by merger, acquisition or similar transaction. Effectiv may in its sole discretion use third parties as subcontractors under this Agreement and otherwise may delegate to a third party any of its obligations under this Agreement. In that event, Effectiv will remain responsible for performance of such obligations under this Agreement.
11.2 Notices. Effectiv may provide Client with notice (a) if applicable to the Platform, by means of a general notice on the Effectiv portal, on the Effectiv.com website, or any other website used as part of the Platform, and (b) if specific to the Client, by electronic mail to the e-mail address in Effectiv’s records. All notices to Effectiv concerning this Agreement should be addressed to Effectiv at [email protected], with a copy to Legal Department at Attn: Legal Department, Abra Innovations, Inc., d/b/a Effectiv, 850 New Burton Road, Suite 201, City of Dover, DE 19904.
11.3 Waiver. Failure by either party to enforce any term or condition of this Agreement will not be construed as a waiver of any of its rights under it.
11.4 Severability. If any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement will remain in force to the fullest extent permitted by law.
11.5 Force Majeure. Neither party will be liable to the other for any delay or failure to perform hereunder, except for Client’s payment obligations, due to circumstances beyond such party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, pandemics, acts of war, strikes or other labor problems, or other industrial disturbances, systemic electrical, telecommunications, or other utility failures.
11.6 Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, U.S.A, notwithstanding its conflicts of law principles, and all claims arising out of or relating to this Agreement shall be brought exclusively in the federal or state courts located in Kent County, Delaware, U.S.A. The parties agree that the UN Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
11.7 Survival. The following sections, together with any other terms necessary for the interpretation or enforcement of this Agreement, will survive termination or expiration of this Agreement: 1 (Definitions), 2.3 (Restrictions), 2.5 (Certain Client Responsibilities), 2.15 (Client Output), 3 (Payment; Taxes), 4 (Confidentiality), 5 (Ownership Rights), 6.4 (Warranty Disclaimer), 7 (Limitation of Liability), 8 (Indemnification), 9.3 (Effect of Termination), 9.4 (Disposition of Customer Data and Client Output upon Termination), and 11 (General).
11.8 Independent Parties. Effectiv and Client are independent contractors, and nothing in this Agreement will create a partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.
11.9 Entire Agreement. This Agreement, the Order Schedule(s) and any other documents referenced in this Agreement, including Addendums, constitute the entire agreement between the parties with respect to the Platform and supersede all prior or contemporaneous oral or written communications, agreements, or representations with respect to the Platform. Except as otherwise expressly provided in this Agreement, any modification to the terms and conditions of this Agreement requires a written amendment to this Agreement signed by authorized representatives of both parties.