Master Subscription Agreement

THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.

IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES OR FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES.

BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE; BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT; OR, FOR FREE SERVICES, BY USING SUCH SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU   ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN   WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT  HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT  THIS AGREEMENT AND MAY NOT USE THE SERVICES.

You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement was last updated on January 1, 2018. It is effective between You and Us as of the date of Your accepting this

Agreement.

 

Table of Contents

Definitions

Free Trial

Our Responsibilities

Use of the Services and Content

Non-SFDC Providers

Fees and Payment for PurchasedServices Proprietary Rights and Licenses Confidentiality

Representations, Warranties, Exclusive Remedies and Disclaimers

Mutual Indemnification Limitation of Liability Term and Termination

Who You Are Contracting With, Notices, Governing Law and Jurisdiction

General Provisions

 

  1. 1. DEFINITIONS

 

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.  “Control,”  for purposes of this  definition,  means  direct  or indirect  ownership  or  control of more  than

50% of the voting interests of the subject entity. “Agreement” means this Master Subscription Agreement.

“Beta Services” means SFDC services or functionality that may be made available to You to try at Your option at no additional

 

charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.

 

“Content” means information obtained by SFDC from publicly available sources or third party content providers and made available to You through the Services, Beta Services or pursuant to an Order Form, as more fully  described in the Documentation.

 

“Malicious  Code”  means  code,  files,  scripts,  agents  or  programs  intended  to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

 

“Non-SFDC Application” means a Web-based, mobile, offline or other software process or functionality that is provided  by You or a third party and interoperates with a Service, including, for example, an application that is developed by or for You, is listed on a Marketplace, or is identified as IdeaSwim or by a similar designation.

 

“Order  Form”  means  an  ordering  document or online order specifying  the  Services  to  be  provided  hereunder  that  is entered into between You and Us or any of Our Affiliates, including any addenda and supplements  thereto. By entering  into an Order  Form  hereunder,  an  Affiliate  agrees to  be  bound by the  terms  of  this  Agreement  as  if it  were an  original party hereto.

 

“Free Services” means Services that SFDC makes available to You free of charge.  Free Services exclude Services offered as a free trial and Purchased Services.

 

“Purchased Services” means Services that You or Your Affiliate purchase under an Order Form, as distinguished  from

Free Services or those provided pursuant to a free trial.

 

“Services” means the products and services that are ordered by You under an Order Form or provided to You free of charge (as applicable) or  under a  free  trial,  and  made  available  online  by  Us,  including  associated  SFDC  offline  or mobile components, as  described in the Documentation. “Services” exclude Content and Non-SFDC Applications.

 

“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity,  an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or  in the case of any Services provided by Us without charge, for whom a Service has been provisioned), and to whom  You   (or,  when  applicable, We at Your request) have supplied a user identification and password (for Services utilizing  authentication). Users may include, for example, Your employees, consultants,  contractors and agents, and third parties with which You transact business.

 

“We,”  “Us” or  “Our”  means  the  IdeaSwim.com (IdeaSwim Co) company  described  in  Section  13  (Whom  You  Are  Contracting  With, Notices, Governing Law and Jurisdiction).

 

“You” or “Your” means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which you are accepting this Agreement, and Affiliates  of that company or entity which have entered into Order Forms.

 

“Your Data” means electronic data and information submitted by or for Y o u to the Services, excluding Content  and Non- SFDC Applications.

 

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  1. 2. FREE TRIAL AND FREE SERVICES

 

2.1        Free Trial. If You register on Our website for a free trial or contact us for a free trial, We will make one or more Services available to You on a trial basis free of charge  until  the  earlier  of  (a)  the  end  of the  free  trial  period  for  which  You  registered  to  use  the applicable  Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s), or (c)  termination by Us in our sole discretion. Additional trial terms and conditions may appear on the trial registration web page.  Any  such  additional  terms  and  conditions  are  incorporated  into  this  Agreement  by  reference  and  are legally binding.

 

ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A  SUBSCRIPTION TO  THE  SAME  SERVICES  AS THOSE  COVERED  BY  THE  TRIAL,  PURCHASE  APPLICABLE  UPGRADED SERVICES, OR  EXPORT  SUCH  DATA,  BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT  TRANSFER DATA  ENTERED  OR  CUSTOMIZATIONS  MADE  DURING  THE  FREE TRIAL  TO  A  SERVICE  THAT  WOULD  BE  A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM ENTERPRISE EDITION  TO  PROFESSIONAL EDITION); THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A  DOWNGRADE FROM THAT COVERED  BY  THE  TRIAL, YOU  MUST  EXPORT  YOUR DATA  BEFORE  THE  END  OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.

 

NOTWITHSTANDING SECTIONS 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS) AND       10.1 (INDEMNIFICATION   BY   US),   DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND SFDC   SHALL   HAVE   NO   INDEMNIFICATION   OBLIGATIONS   WITH   RESPECT   TO   THE   SERVICES FOR   THE   FREE   TRIAL PERIOD.  WITHOUT LIMITING THE FOREGOING, SFDC AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 11.1 (LIMITATION OF LIABILITY), YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO SFDC AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.

 

Please  review  the  applicable  Service’s  Documentation  during  the  trial  period  so  that  You  become  familiar  with  the features and functions of the Services before You make Your purchase.

 

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2.2        Free Services.   IdeaSwim may make Free Services available to You. Use of Free Services is subject to the terms and conditions of this Agreement.  In the event of a conflict between this Section 2.2 (Free Services) and any other portion of this Agreement, this section shall control.  Please note that Free Services are provided to you without charge up to certain limits as described in the Documentation. Usage over these limits requires your purchase of additional resources or services. You agree that SFDC, in its sole discretion and for any or no reason, may terminate your access to the Free Services or any part thereof. You agree that any termination of your access to the Free Services may be without prior notice, and you agree that SFDC will not be liable to you or any third party for such termination. You are solely responsible for exporting Your Data from the Free Services prior to termination of Your access to the Free Services for any reason, provided that if We terminate your account, except as required by law We will provide you a reasonable opportunity to retrieve Your Data.

 

NOTWITHSTANDING SECTIONS 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS) AND       10.1 (INDEMNIFICATION BY US), THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND SFDC SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE FREE SERVICES.  WITHOUT LIMITING THE FOREGOING, SFDC AND ITS

 

AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE FREE SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 11.1 (LIMITATION OF LIABILITY), YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO SFDC AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE FREE SERVICES, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.

 

  1. 3. OUR RESPONSIBILITIES

 

3.1        Provision of Purchased Services. We will (a) make the Services and Content available to You pursuant to  this Agreement and any applicable Order Forms, (b) provide applicable SFDC standard support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for:  (i) planned downtime (of which We shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-SFDC Application, or denial of service attack.

 

3.2        Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Documentation. Those safeguards will  include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by  Our  personnel except (a) to provide the Purchased Services and prevent or address service or technical problems.

 

3.3        Our  Personnel.  We  will be  responsible  for  the performance  of  Our  personnel  (including  Our  employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.

 

3.4        Beta Services. From time to time, We may make Beta Services available to You at no charge. You may choose   to try such Beta Services or  not in Your  sole discretion. Beta Services are intended  for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered “Services”  under this Agreement, however, all restrictions, Our reservation of rights and Your obligations concerning the Services,   and use of any related Non-SFDC Applications and Content, shall apply equally to Your use of Beta Services.  Unless   otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or  the   date that a version of the Beta Services becomes generally available without the applicable Beta Services  designation.    We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.

 

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  1. 4. USE OF SERVICES AND CONTENT

 

4.1        Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying

 

subscriptions.

 

4.2        Usage Limits. Services and Content are subject to usage limits, including, for example, the quantities specified in Order Forms and Documentation. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and   the Service  or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing one who will no longer use the Service or Content. If You exceed a  contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If,  notwithstanding Our efforts, You are unable or unwilling to  abide  by  a  contractual  usage limit,  You  will  execute  an Order Form for additional quantities of the  applicable Services or Content  promptly upon  Our request, and/or  pay any invoice for excess usage in accordance with Section 6.2 (Invoicing and Payment).

 

4.3        Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Your Data, the means by which You acquired  Your Data and Your use of Your Data with our Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content,   and notify Us promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with  this Agreement, Documentation, Order Forms and applicable laws and government regulations, and (e) comply with  terms of service of any Non-SFDC Applications with which You use Services or Content.

 

4.4        Usage Restrictions. You will not (a) make any Service or Content available to anyone other than Users, or use any Service or Content for   the benefit of,  anyone other than You, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content,   or include any Service or Content in a  service  bureau  or  outsourcing offering,  (c)  use  a  Service  or  Non-SFDC  Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit   material  in violation  of third-party  privacy rights, (d) use a Service or Non-SFDC Application to store or transmit  Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained  therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit  direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, or to access or use any of Our intellectual property except as permitted under this Agreement, an Order Form, or the Documentation,  (h)  m o d ify , copy, or create derivative works based on  a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of   any  Service  or Content,  other   than   framing   on   Your  own   intranets or otherwise for Your own   internal business   purposes  or  as permitted in the  Documentation, o r  (k) disassemble, reverse engineer, or decompile a Service or Content, or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service or (4) determine whether the Services are within the scope of any patent.  Any use of the  Services in  breach  of  this  Agreement,  Documentation or Order Forms, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may  result  in Our  immediate suspension of the Services, however We will  use  commercially  reasonable  efforts  under the circumstances  to  provide You  with  notice  and  an  opportunity  to remedy such violation or threat prior to such suspension.

 

4.5        Removal of Content and Non-SFDC Applications. If We are required by a licensor to remove  Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may   so notify You and in such event You will promptly remove such Content from Your systems. If You do not take required action in accordance with the above, We may disable the applicable Content, Service and/or Non-SFDC Application until the potential violation is resolved.

 

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  1. 5. NON-SFDC PROVIDERS

 

5.1        We or third parties may make available (for example, through a Marketplace or otherwise) third-party products  or services, including, for example, Non-SFDC Applications and implementation and other consulting services. Any acquisition by You of such products or services, and any exchange of data between You and any Non-SFDC provider,   product or service is solely between You and the applicable Non-SFDC provider. We do not warrant or support Non-SFDC Applications or other Non-SFDC products or services, whether or not they are designated by Us as “certified” or   otherwise, unless expressly provided otherwise in an Order Form.

 

5.2        Non-ideaswim.com Applications and Your Data. If You choose to use a Non-SFDC Application with a Service, You grant Us permission to allow the Non-SFDC Application and its provider to access Your Data as required for the interoperation of that Non-SFDC Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by such Non-SFDC Application or its provider.

 

5.3        Interoperation with  Non-SFDC  Applications. The  Services  may  contain  features  designed  to  interoperate  with Non-SFDC Applications. To use such features, You may be required to obtain access to such Non-SFDC Applications  from their providers, and may be required to grant Us access to Your account(s) on such Non-SFDC Applications.  We  cannot guarantee the continued availability of such Service features, and may cease providing them without entitling   You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-SFDC  Application ceases  to  make  the  Non-SFDC  Application  available  for  interoperation  with  the  corresponding  Service  features in a manner acceptable to Us.

 

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  1. 6. FEES AND PAYMENT FOR PURCHASED SERVICES

 

6.1        Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order  Form,(i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are  non- cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.

 

6.2        Invoicing  and  Payment.  You  will  provide  Us  with valid  and  updated  credit  card  information,  or with a  valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial  subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased  Subscriptions).  Such charges shall be made in advance, either annually or in accordance with any different billing  frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other   than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless  otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.

 

6.3        Overdue Charges.  If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per  month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription  renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).

 

6.4        Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for  Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us  to charge to  Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee  obligations under such agreements so that all such obligations become immediately due and payable, and suspend   Our services to You until such amounts are paid in full. Other than for customers paying by credit card or direct  debit whose payment has been declined, We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section

 

13.2 (Manner of Giving Notice) for billing notices, before suspending services to You.

 

6.5        Payment Disputes. We will not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are  cooperating diligently to resolve the dispute.

 

6.6        Taxes.  Our  fees  do  not  include  any taxes,  levies, duties or  similar  governmental  assessments  of any  nature, including,   for   example,   value-added,   sales,   use   or withholding   taxes,   assessable   by   any   jurisdiction   whatsoever (collectively, “Taxes”).  You are responsible for paying all Taxes associated with Your purchases hereunder.  If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 6.6, We will invoice  You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the  appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against  Us based on Our  income, property and employees.

 

6.7       Future Functionality. You agree that Your  purchases are not contingent on the delivery of any future functionality or features,  or dependent on any oral or written public comments made by Us regarding future functionality or features.

 

6.8      Payment Processor. You agree that you understand and are using IdeaSwim’s payment processor partner, Stripe whose current rates are 2.9% + 30 cents per transaction.

 

6.9       Platform Security Fee. You agree that Your charges on all fundraisers (i.e. online donation forms, crowdfunding, peer-to-peer, and mobile giving)   are subjected to a flat 5.0% security fee on all transactions.

 

 

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  1. 7. PROPRIETARY RIGHTS AND LICENSES

 

7.1        Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our Affiliates, Our licensors and Content Providers reserve all of Our/their right, title and interest in and to the Services and Content, including  all   of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set  forth herein.

 

7.2        Access to and Use of Content. You have the right to access and use applicable Content subject to the terms  of applicable Order Forms, this Agreement and the Documentation.

 

7.3        License to   Host   Your Data   and   Applications.   You   grant   Us,   Our Affiliates   and   applicable   contractors   a worldwide, limited-term license to host, copy, display and use any Non-SFDC Applications and  program code created by or for You using a Service or for use by You with the Services, and Your Data, each as reasonably necessary for  Us   to provide, and ensure proper operation of, our Services a n d associated systems in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to any of Your Data, Non-SFDC Application or such program code.

 

7.4        License to Use Feedback. You grant  to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our and/or Our Affiliates’ services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our or Our Affiliates’ services.

 

 

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  1. 8. CONFIDENTIALITY

 

8.1       Definition of Confidential Information. “Confidential Information” means all information disclosed by a  party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as  confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.  Your Confidential  Information includes Your Data; Our Confidential Information includes   the  Services  and Content;  and  Confidential  Information  of  each  party  includes  the  terms  and  conditions  of  this   Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical   information,  product plans and designs,  and business processes  disclosed by  such  party.  However, Confidential  Information does not include any information that (i) is or becomes generally known to the public without breach of  any  obligation  owed  to  the Disclosing  Party, (ii) was  known to  the  Receiving  Party prior to  its  disclosure  by the  Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

 

8.2        The  Receiving  Party  will  use  the  same  degree  of  care  that  it  uses  to  protect  the  confidentiality  of  its  own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the  Disclosing Party  in  writing,  limit  access  to  Confidential  Information  of  the  Disclosing  Party  to  those  of  its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who  have   signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the  Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to  any  third party other than its Affiliates, legal counsel and accountants without the other party’s prior written  consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will  remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality”  section.  Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Order Form to a  subcontractor or Non-SFDC Application Provider to the extent necessary to perform Our obligations to You under this   Agreement, under terms of confidentiality materially as protective as set forth herein.

 

8.3        Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing   Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s  Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is   not  contesting the  disclosure,  the  Disclosing  Party  will  reimburse  the  Receiving  Party  for  its  reasonable  cost  of   compiling and providing secure access to that Confidential Information.

 

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  1. 9. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

 

9.1        Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

 

9.2        Our Warranties. We warrant that during an applicable subscription term (a) this Agreement, the Order Forms and the   Documentation  will  accurately  describe  the  applicable   administrative,  physical,  and  technical   safeguards  for protection of the  security, confidentiality  and  integrity of  Your  Data,  (b)  We  will  not  materially  decrease  the  overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and

(d) subject to the “Integration with Non-SFDC Applications” section above, We will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Your exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.

 

9.3        Disclaimers. EXCEPT AS  EXPRESSLY PROVIDED  HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY  KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL  IMPLIED WARRANTIES,  INCLUDING  ANY  IMPLIED  WARRANTY  OF  MERCHANTABILITY,  FITNESS FOR  A  PARTICULAR  PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA  SERVICES ARE PROVIDED  “AS  IS,”  EXCLUSIVE  OF  ANY  WARRANTY  WHATSOEVER.  EACH  PARTY  DISCLAIMS ALL   LIABILITY AND INDEMNIFICATION  OBLIGATIONS  FOR  ANY  HARM  OR DAMAGES  CAUSED  BY  ANY  THIRD-PARTY  HOSTING PROVIDERS.

 

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  1. 10. MUTUAL INDEMNIFICATION

 

10.1      Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Our warranties under “SFDC Warranties” above, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that our Services are the basis of the Claim Against You; (2) a Claim Against You arises from the use or combination of our Services or any part thereof with software, hardware, data, or processes not provided by Us, if our Services or use thereof would not infringe without such combination; (3) a Claim Against You arises from Services under an Order Form for which there is no charge; (4) a Claim against You is based on traditional online storefront commerce functionality that is or was in general use in the industry; or (5) a Claim Against You arises from Content, a Non-SFDC Application or Your use of the Services in violation of this Agreement, the Documentation or applicable Order Forms.

 

10.2      Indemnification  by  You.  You will  defend  Us and Our Affiliates  against  any  claim,  demand,  suit  or proceeding made or brought against Us by a third party alleging that (a )  any of Your Data or Your use of Your Data with our Services, (b) a Non-SFDC Application provided by You, or (c) the combination of a Non-SFDC Application provided by You and used with Our Services, infringes or misappropriates such third party’s intellectual  property rights, or arising from Your use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form (each a “Claim Against Us”), and You will indemnify Us from any damages, attorney fees  and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by  You  in writing of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You  sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us  unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Yourexpense.

 

10.3      Exclusive Remedy. This Section 10 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 10.

 

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  1. 11. LIMITATION OF LIABILITY

 

11.1      Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL  OF ITS AFFILIATES ARISING OUT OF OR RELATED  TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID  BY YOU  AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS  PRECEDING THE  FIRST  INCIDENT  OUT  OF  WHICH  THE  LIABILITY  AROSE.  THE  FOREGOING  LIMITATION  WILL  APPLY   WHETHER  AN

 

ACTION  IS  IN  CONTRACT OR TORT  AND REGARDLESS OF THE THEORY OF LIABILITY,  BUT WILL NOT  LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.

 

11.2      Exclusion of Consequential and Related Damages.  IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES   HAVE ANY  LIABILITY  ARISING  OUT  OF  OR  RELATED  TO  THIS  AGREEMENT  FOR  ANY  LOST  PROFITS,  REVENUES,  GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF  A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS  AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY  TO THE EXTENT PROHIBITED BY LAW.

 

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  1. 12. TERM AND TERMINATION

 

12.1  Term  of  Agreement.  This  Agreement  commences  on  the   date  You  first  accept  it  and  continues  until  all subscriptions hereunder have expired or have been terminated.

 

12.2      Term of Purchased Subscriptions. The term of each subscription shall be  as specified in the applicable Order Form.  Except  as  otherwise  specified  in an  Order  Form,  subscriptions  will automatically  renew  for  additional  periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice  of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any  renewal term will increase by up to 7% above the applicable pricing in the prior term, unless We provide You notice of  different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable  Order Form, renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the   time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for   any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.

 

12.3      Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party   becomes the  subject  of  a petition  in  bankruptcy  or any  other  proceeding relating  to  insolvency,  receivership,   liquidation or assignment for the benefit of creditors.

 

12.4      Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section

12.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after   the effective date of termination. If this Agreement is terminated by Us in accordance with Section 12.3, You will pay  any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of  Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.

 

12.5      Your  Data  Portability  and  Deletion.   Upon  request  by  You made  within 30 days  after  the  effective  date  of termination  or  expiration  of  this  Agreement,  We  will  make  Your  Data  available  to  You  for  export  or  download  as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide any Your  Data, and as provided in the Documentation will thereafter delete or destroy all copies of Your Data in Our systems or

otherwise in Our possession or control, unless legally prohibited.

 

12.6      Surviving Provisions. The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and  Licenses,” “Confidentiality,”  “Disclaimers,”  “Mutual  Indemnification,”  “Limitation  of  Liability,”  “Refund  or  Payment upon Termination,”  “Your  Data  Portability  and  Deletion,”  “Removal  of  Content  and  Non-SFDC  Applications,”  “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.

 

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  1. 13. WHOM YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION

 

13.1      General.  Who  You  are  contracting  with  under  this  Agreement,  who  You  should  direct  notices  to  under  this Agreement, what law will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and  which courts have jurisdiction over any such dispute or lawsuit, depend on where You are domiciled.

 

 

 

If  You  are  domiciled  in: You are contracting with: Notices should be   addressed

to:

The governing

law is:

The                    courts

having   exclusive jurisdiction are:

The     United     States    of

America, Mexico or a Country  in  Central  or South America or the Caribbean

IdeaSwim Company,                              an

Ohio corporation

2000 Auburn Drive, Beachwood Ohio 44122  attn: VP,  Worldwide  Sales Operations,    with   a   copy   to attn: General Counsel. Ohio   and

controlling United   States federal law

Cleveland, Ohio, U.S.A.

 

13.2      Manner of Giving   Notice.   Except   as   otherwise   specified   in   this   Agreement,   all   notices   related   to  this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after  mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly  be  identifiable as Legal Notices, the day of sending by email. Billing-related notices to You will be addressed to the  relevant billing contact designated by You. All other notices to You will be addressed to the relevant Services system  administrator designated by You.

 

13.3      Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above  without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.

 

13.4      No Agency. For the avoidance of doubt, We are entering into this Agreement as principal and not as agent for  any other ideaswim.com company. Subject to any permitted Assignment under Section 14.4, the obligations owed by Us under this Agreement shall be owed to You solely by Us and the obligations owed by You under this Agreement shall be owed solely to Us.

 

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  1. 14. GENERAL PROVISIONS

 

14.1      Export Compliance. The Services, Content, other technology We make available, and derivatives thereof  may   be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is  not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service or Content in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of   any U.S. export law or regulation.

 

14.2     Anti-Corruption. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement.  Reasonable gifts and  entertainment provided in the ordinary course of business do not violate the   above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at support@ideaswim.com.

 

14.3      Entire  Agreement  and  Order  of  Precedence.  This  Agreement  is  the  entire  agreement  between  You  and  Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals  or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, 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. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2)   this Agreement, and (3) the Documentation.

 

14.4      Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law   or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees allocable  to the remainder of the term of all subscriptions for the period after the effective date of such termination.  Subject   to  the  foregoing,  this  Agreement  will bind and inure  to the benefit of the parties, their respective successors and  permitted assigns.

 

14.5      Relationship  of  the  Parties.  The  parties  are  independent  contractors.  This  Agreement  does  not  create  a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

 

14.6      Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.

 

14.7      Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver  of that right.

 

14.8       Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to  law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

 

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