This Gild Service Subscription Agreement and any and all Orders (together, the “Agreement”) between Gild, Inc. (“Gild”) and customer (“you”) contain the terms and conditions that govern your, and your employees’, agents and contractors’, access to and use of the Services and is effective as of the date that the Order Form is signed by you.
a. “Affiliate” means any entity that controls, is controlled by or is under common control with a party, where “control” means beneficial ownership (direct or indirect) of more than fifty percent (50%) of the shares of such entity entitled to vote in the election of directors (or in the case of an entity that is not a corporation, for the election of the corresponding managing authority).
b. “Authorized User” means a named employee or Contractor of your company for whom you have created a unique Gild user name and password.
c. “Claim” means any actual or threatened third party claim, proceeding or suit arising out of or related to: (i) Your Content; (ii) use of the Services by you or any Authorized Users, to the extent such claim, proceeding or suit was not caused by the negligence or willful misconduct of Gild; or (iii) breach of any of the provisions of this Agreement by you or any Authorized Users.
d.“Confidential Information” means any information disclosed by one party to the other party, pursuant to this Agreement, which is in written, graphic, machine readable or other tangible form and is marked “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature. Confidential Information may include oral information disclosed by one party to the other and information disclosed visually (e.g., as a result of access to the other party’s premises or property), provided that such information is designated as confidential at the time of disclosure or access and reduced by the disclosing party within thirty (30) days of its disclosure to a written summary that is marked in a manner to indicate its confidential nature and delivered to the receiving party. Confidential Information does not include Your Content to the extent that it has been anonymized, encoded or otherwise stripped of its identifiers to ensure that you cannot be directly identified.
e. “Content” means software, data, text, audio, video, images or other content.
f. “Contractors” means a party’s contractors, consultants or agents.
g. “Feedback” means any feedback, suggestions, modifications, or improvements related to or in connection with the Services provided to Gild by you or any Authorized User.
h. “Order” means an ordering document specifying the Services to be provided hereunder that is entered into between you and Gild, including any addenda and supplements thereto.
i. “Services” means the web-based services described in an Order.
j. “Taxes” means sales, use, withholding, excise, value-added or other taxes, duties, or assessments imposed by a governmental authority in any jurisdiction, including any related penalties or interest.
k. “Third Party Content” means Content made available to you or any Authorized Users by a third party through or in conjunction with the Services.
l. “Your Content” means Content (other than Content provided by Gild or Third Party Content) you or any Authorized Users provide that (i) runs on the Services, (ii) interfaces with the Services, or (iii) is uploaded to the Services or otherwise transferred, processed, use or stored in connection with the Services.
2. Services and License Grant
a. Use of the Services. During the term of your subscription to the Services (including any free trial) as specified in an Order and subject to your and all Authorized Users’ compliance with this Agreement, Gild grants you a limited license to use and access the Services. You may permit your Authorized Users to access and use the Services solely on your behalf, subject to Section 2(b) (Your Responsibilities). The Services are subject to usage limits specified in the applicable Order, and the Services may not be accessed by more than the number of Authorized Users specified in such Order. If you exceed any usage limits specified in an Order, you will execute an Order to increase your usage limits and pay the related invoice for any such past excess usage and for any such future increased usage limits in accordance with Section 3(b) (Invoicing and Payment). Any use of the Services beyond the limits specified in an Order constitutes a material breach of the Agreement.
b. Your Responsibilities. You will access and use, and ensure that all Authorized Users access and use, the Services only in accordance with the Agreement and the applicable Order and other access requirements consistent with these terms. You will ensure that no Authorized Users disclose their user names or passwords to any other person, including any other employee or Contractor. You will use reasonable efforts to prevent unauthorized access to or use of the Services and promptly notify Gild of any such unauthorized access or use. You are solely responsible for: (i) Your Content, including ensuring that you have a right to provide access to and use of Your Content by Gild, compliance of Your Content with this Agreement and any claims relating to Your Content; (ii) ensuring all Authorized Users comply with this Agreement; (iii) complying with all applicable laws, including all laws relating to privacy and employment discrimination; and (iv) without limiting Gild’s obligations under Section 7 (Security), properly configuring and using the Services and taking steps to maintain appropriate security, protection and backup of Your Content.
c. Usage Restrictions. You will not, directly or through any Affiliate, employee, Contractor, or other third party:
i. decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architectures, structures or other elements of any Services, in whole or in part (except to the extent that the laws of your jurisdiction make such restrictions unenforceable);
ii. make any Services available to anyone other than you and your Affiliates and Authorized Users, or use any Services for the benefit of anyone other than you and your Affiliates, including selling, reselling, distributing, hosting, leasing, renting, licensing or sublicensing, in whole or in part, any Services, or using any Services for hosting or time sharing services, or as part of a service bureau or outsourcing offering;
iii. use any Services (a) to determine a person’s eligibility for: (i) credit or insurance for personal, family, or household purposes; or (ii) a government license or benefit or (b) in any way that is prohibited by law;
iv. use any Services to provide recruiting, consulting, or other services to third parties other than Affiliates;
v. provide any services to any third party using the Services where such third party’s use of the Services would, if undertaken by you or any of your Affiliates, violate any term or condition of this Agreement;
vi. prepare any derivative work of any Services, or any other program based upon any Services (it being understood that this restriction will not prevent you from independently developing applications to use with the Services as expressly permitted herein);
vii. reproduce (except as expressly permitted herein), modify, adapt, translate or otherwise make any changes to any Services or any part thereof;
viii. copy, disclose, or distribute any data available on the Services in any medium, including without limitation, by any automated or non-automated “scraping;”
ix. interfere with, circumvent or disable any security or other technological features or measures of the Services or attempt to gain unauthorized access to any Services or its related systems or networks;
x. make unsolicited offers, advertisements, or proposals, or send junk mail or spam to other users of the Services (including, but not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures);
xi. use bots or other automated methods to: access the Services, download profiles, contacts or any other information, send or redirect messages or perform any other activities through the Services; or
xii. use the Services for any unlawful or inappropriate activities, such as gambling, obscenity, pornography, violence, discrimination, transmission of deceptive messages, or harassment.
d. Modifications to the Services. Gild may make modifications or updates to the Services from time to time in its sole discretion.
e. Third Party Content. You may access Third Party Content while using the Services. You understand that Third Party Content is not under the control of Gild and agree that Gild is not responsible for Third Party Content. Gild provides access to Third Party Content as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Content. You use the Services and all Third Party Content at your own risk and assume full responsible for any such use. When you use or otherwise link to Third Party Content, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You agree that you will not rely on the Services, including any Third Party Content obtained through the Services, in determining a person’s eligibility for employment, and you should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third Party Content.
3. Fees; Invoicing and Payment
a. Fees. You will pay all fees specified in any Orders or otherwise invoiced by Gild (the “Fees”). All Orders are non-cancelable, and all Fees paid to Gild are non-refundable, except as expressly provided otherwise in this Agreement or an applicable Order.
b. Invoicing and Payment. Fees are invoiced by Gild upon execution of each Order, and thereafter at least thirty (30) days prior to your subscription renewal date. All Fees are due and payable in U.S. dollars upon receipt of Gild’s electronic invoice. Gild’s invoices will be deemed received by you upon delivery to the email address of the Billing and Payment Contact specified on your Order. You may not offset any amounts due to Gild hereunder against amounts due to you from Gild under this Agreement. You will reimburse Gild for all costs incurred (including reasonable attorneys’ fees) in collecting past due amounts. Any amount which is past due will be subject to interest at the rate of 1.5% of the outstanding balance per month or the highest lawful rate, whichever is lower.
The Fees do not include any Taxes. You are responsible for paying all Taxes associated with your purchases and use of the Services hereunder, excluding those based on Gild’s net income. If Gild is obligated to collect or pay Taxes for which you are responsible, Gild will invoice you and you will pay such Taxes unless you provide Gild with a timely and valid tax exemption certificate authorized by the appropriate taxing authority.
5. Your Content; Feedback
As between you and Gild, Gild owns all right, title, and interest, including all intellectual property rights, in and to the Services, and you acquire only the rights to access and use the Services as expressly set forth in this Agreement. As between you and Gild, you own all right, title and interest, including all intellectual property rights, in and to Your Content. You consent to Gild’s use and disclosure of Your Content (a) to provide the Services to you and any Authorized Users and (b) for any other purpose so long as Your Content has been anonymized, encoded or otherwise stripped of its identifiers to ensure that you cannot be directly identified. Gild shall own all right, title and interest in any Feedback and shall be free to use it without restriction or the payment of any additional consideration hereunder to you, any Authorized User or any other party, including the right to make modifications to any Services based on such Feedback.
Without limiting Section 8 (Representations and Warranties; Disclaimers) or your obligations under Section 2(b) (Your Responsibilities), Gild will implement reasonable measures designed to help protect Your Content from unauthorized access or disclosure while in Gild’s possession and control.
8. Representations and Warranties; Disclaimers
a. Representations and Warranties. Each party represents and warrants that when executed and delivered, this Agreement and each Order will constitute a legal, valid and binding agreement enforceable against such party in accordance with its terms. Gild warrants that Gild will provide the Services using reasonable care and skill.
b. DISCLAIMERS. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8 (REPRESENTATIONS AND WARRANTIES; DISCLAIMERS), GILD DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, SATISFACTORY QUALITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. GILD MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS (OTHER THAN ANY SPECIFIC SERVICE LEVEL REQUIREMENTS PROVIDED BY GILD) OR BE ERROR-FREE, UNINTERRUPTED OR SECURE. The foregoing limitations shall apply even if the above-stated warranties fail of their essential purpose.
You will defend Gild and its Affiliates and Contractors (the “Indemnified Parties”) from or settle any Claims and pay all losses, damages, and expenses (including attorneys’ fees) arising from or related to such Claims.
10. LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS (EXCLUDING AMOUNTS PAYABLE TO GILD HEREUNDER), REVENUE, BUSINESS, VALUE, GOODWILL, ANTICIPATED SAVINGS, OR DATA, OR COST OF COVER ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. GILD’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY YOU HEREUNDER DURING THE 12-MONTH PERIOD BEFORE THE DATE THE EVENT GIVING RISE TO LIABILITY AROSE. THE FOREGOING DISCLAIMER AND LIMITATION WILL NOT APPLY TO DAMAGES ARISING OUT OF OR RELATED TO BREACH OF SECTION 6 (CONFIDENTIALITY) OR PAYMENTS UNDER SECTION 9 (INDEMNIFICATION). THIS SECTION 10 (LIMITATION OF LIABILITY) WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT, AND ALSO APPLIES TO GILD’S AFFILIATES AND CONTRACTORS.
11. Term; Termination
a. Term. This Agreement commences as of the date an Order is executed by both parties and continues until all subscriptions hereunder have expired or have been terminated. The initial term of each subscription will be specified in the applicable Order. Unless otherwise agreed in an Order, your subscription will automatically renew for twelve (12) month periods, unless either party gives at least 30 days’ written notice before the start of the subsequent twelve (12) month period. . Gild will electronically invoice you for each renewal period at Gild’s then-current Services fee rates upon expiration of your then current subscription term. Failure to make prompt payment will result in termination of the Services.
b. Termination; Suspension. A party may terminate this Agreement or any Order if (i) the other party is in material breach of the Agreement and fails to cure such breach within thirty (30) days of written notice from the other party (or within five (5) days of such written notice if the material breach is a failure to pay fees due to Gild hereunder)(a “Breach”); or (ii) the other party ceases its business operations or becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Gild may, without limitation to any of Gild’s other rights or remedies, immediately suspend your or any Authorized User’s right to access or use any portion or all of the Services for any of the foregoing reasons or if you or any Authorized User violates any of the restrictions set forth in Section 2. Fees will continue to accrue for the Services during any suspension.
c. Effect of Termination. If you terminate an Order for any reason other than in accordance with Section 11.b prior to the end of the agreed term of such Order, such termination will not relieve you of your obligation to pay the fees due to Gild for the remainder of the term of that Order. Upon termination or expiration of any Order or this Agreement, you will cease using the applicable Services. Upon request, within 10 days thereafter, you will securely destroy or return all of Gild’s Confidential Information at your expense, and deliver to Gild a written certification, signed by your authorized officer, that you have returned or securely destroyed all of Gild’s Confidential Information. Termination will not limit either party from pursuing other remedies such as injunctive relief, nor relieve you of any payment or other obligation that arose prior to termination. You will not be entitled to any refund of subscription or other fees paid prior to the termination date except as specifically provided in this Section 11(c). Your sole and exclusive remedy in connection with a breach by Gild shall be to terminate this Agreement and any outstanding Order and to receive a pro-rata refund of any Fees paid for the remaining term of the then current subscription. Sections 1 (Definitions), 3 (Fees; Invoicing and Payment), 4 (Taxes), 5 (Your Content; Feedback), 6 (Confidentiality), 8(b) (Disclaimers), 9 (Indemnification), 10 (Limitation of Liability), 11(c) (Effect of Termination), 12 (Compliance Review), and 13 (General) will survive termination or expiration of this Agreement or any Order.
12. Compliance Review
Upon Gild’s written request, but not more frequently than annually, you will furnish Gild with a signed statement verifying that the Services are being used in full compliance with the provisions of this Agreement, including any usage limitations. If, at any time, Gild identifies any use of the Services that is not in compliance with the terms of this Agreement (including any use of the Services beyond the term of the subscription or in excess of the limits set forth in any Order), you will promptly cure such noncompliance and pay Gild any additional fees as may be due and owing with respect to any such non-compliant use.
a. Compliance with Laws. In performing its obligations or exercising its rights under this Agreement, each party shall comply with all applicable laws and government regulations at all times, including but not limited to any applicable laws and regulations of the United States and other jurisdictions relating to export or re-export of technology, consumer protection, and privacy.
b. Publicity. Gild may use your company name and logo and briefly describe your business in Gild’s marketing materials and website, solely to identify you as a Services user. Any other use of your company name or logo must be pre-approved in writing by you.
c. Force Majeure. Notwithstanding any provision contained in this Agreement, neither party shall be liable to the other to the extent fulfillment or performance of any terms or provisions of this Agreement are delayed or prevented by fires; storms, floods, earthquakes or other elements of nature; nuclear incident; acts of God; terrorism; government action; blockages; civil disorders; wars; strikes; labor disputes; Internet service provider failure or delay; electrical, telecommunications, or other utility failures; or, without limiting the foregoing, any other causes not within its control and which, by the exercise of reasonable diligence, it is unable to prevent. This clause will not apply to the payment of any sums due under this Agreement by either party to the other.
d. Subcontractors. Gild may use a Contractor or other third party to perform Gild’s obligations under this Agreement so long as Gild remains responsible for all of Gild’s obligations under this Agreement.
e. Severability. In the event any provision of this Agreement is held invalid or unenforceable, the remaining provisions of this Agreement will remain in effect. Any invalid or unenforceable provision will be reformed to the extent strictly necessary to render such provision valid and enforceable and having the effect and intent of the original provision. If such construction is not possible, the invalid or unenforceable provision will be severed from this Agreement but the rest of this Agreement will remain in full force and effect.
f. Waiver. No delay or omission by either party to exercise any right or power it has under this Agreement will be construed as a waiver of such right or power. Either party’s waiver of any default or breach hereunder will not constitute a waiver of any other default or breach. All waivers must be in writing and signed by the party waiving its rights.
g. Third Party Beneficiaries. Except as expressly provided herein, this Agreement does not provide and shall not be construed to provide third parties with any right, remedy, claim, cause of action, or privilege.
h. Assignment. This Agreement may not be assigned by either Gild or you, by operation of law or otherwise, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed. Such consent will not be required in connection with the assignment of this Agreement by Gild or you pursuant to a merger, acquisition or sale of all or substantially all of Gild’s or your assets or equity interests to an entity that is not a direct competitor of the other party. If any assignment in violation of this Section 13(h) (Assignment) occurs, the other party may immediately terminate this Agreement upon written notice.
i. Entire Agreement. This Agreement together with any applicable Orders constitute the complete agreement between Gild and you and supersedes all previous agreements or representations, written or oral, regarding the Services. Any terms on, referenced in or attached to any purchase order or other documentation provided by you different from or in addition to this Agreement is void. If there is a conflict between an Order and this Service Subscription Agreement, the terms of the applicable Order shall prevail.
j. Relationship. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Each party may have or enter into similar agreements with others, may design, develop, manufacture, acquire or market competitive products and services, and may conduct its business and assign its employees in any way it chooses.
k. Governing Law; Jurisdiction and Venue; Prevailing Party. This Agreement will be governed by and construed and enforced in accordance with the laws of the State of California, without regard to conflict of law principles or the United Nations Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts in San Francisco County, California for resolution of any dispute arising out of or related to this Agreement. In the event any action is brought in connection with a dispute arising from or related to this Agreement or an Order, the prevailing party will be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees, incurred thereby. For purposes of this section only, “prevailing party” will mean the party that prevails on a majority of causes of action in such dispute.
l. Amendments. Except as otherwise expressly provided herein, this Agreement may only be amended by a written agreement signed by both parties.
m. Notices. Except as otherwise expressly provided in the Agreement, any notice required or permitted under this Agreement must be in writing and (i) delivered in person, (ii) sent by first class registered mail, or air mail, as appropriate, (iii) sent by an internationally recognized overnight air courier, in each case properly posted and fully prepaid to the address of the other party set forth on the signature page of the applicable Order or (iv) by electronic mail to the address of the party specified in the applicable Order or such other address as either party may specify in writing. Notices to Gild shall be sent to the attention of the Chief Executive Officer. Notices to you will be sent to the applicable Order on your behalf, as set forth on the signature page. Notices will be consi¬dered to have been given at the time of actual delivery in person, five business days following the date of mailing, one business day following delivery to an overnight air courier or one business day following the date of the electronic mail.
n. Construction. The parties have had an equal opportunity to participate in the drafting of this Agreement. No ambiguity will be construed against any party based upon a claim that that party drafted the ambiguous language. The section headings and titles in this Agreement are for convenience of reference only and will not be used to construe or interpret this Agreement. The words “include,” “including,” “such as” and variations thereof will not be deemed to be terms of limitation but rather will be deemed to be followed by the words “without limitation.” Unless the context requires otherwise, words in the singular include the plural, words in the plural include the singular, the gender of any pronoun includes all genders, and “or” has the inclusive meaning identified with the phrase “and/or.”
o. Counterparts. This Agreement may be executed in counter¬parts, each of which so executed will be deemed to be an original and such counter¬parts together will constitute one and the same agreement.
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