Terms of Service

Last Modified: April 7, 2023

Previous Version: June 1, 2022

THE FOLLOWING SERVICE TERMS (“TERMS”) ALONG WITH ANY OTHER AGREEMENT, POLICY, NOTICE, OR OTHER DOCUMENT IDENTIFIED OR OTHERWISE INCORPORATED HEREIN INCLUDING BUT NOT LIMITED TO THE “TERMS OF USE,” “ACCEPTABLE USE POLICY,” “PRIVACY POLICY” (“POLICIES,” TOGETHER WITH THE TERMS, AND WHEN APPLICABLE, AN EXECUTED ORDER FORM AND ANY ASSOCIATED DESCRIPTION OF SERVICES (DOS) OR STATEMENT OF WORK (“SOW”), COLLECTIVELY THE “AGREEMENT”) IS A LEGALLY BINDING AGREEMENT BETWEEN SCALEMATTERS, INC (“SCALEMATTERS”, “OUR”, “US”, OR “WE”) AND THE PERSON OR ENTITY (“CUSTOMER,” “YOU,” OR “YOUR”) IDENTIFIED IN ONE OR MORE WRITTEN AND SIGNED ORDERING DOCUMENTS (EACH AN “ORDER FORM”). CUSTOMER AND SCALEMATTERS MAY BE REFERRED TO IN THIS AGREEMENT INDIVIDUALLY AS “PARTY” OR COLLECTIVELY AS “PARTIES.”

THIS AGREEMENT APPLIES TO AND GOVERNS YOUR AND YOUR USERS’ (AS DEFINED BELOW) ACCESS TO AND USE OF THE SCALEMATTERS MATERIAL (AS DEFINED BELOW). BY ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE IN A PORTAL TO ONE OF OUR SERVICES OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES AND ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT. 

IF YOU DO NOT HAVE SUCH AUTHORITY, OR DO NOT AGREE TO BE BOUND BY THIS AGREEMENT AS PRESENTED, YOU MUST NOT ACCEPT THIS AGREEMENT OR ACCESS OR USE THE SCALEMATTERS MATERIAL.

OUR ACCEPTANCE OF THIS AGREEMENT IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO THIS AGREEMENT AS PRESENTED, TO THE EXCLUSION OF ALL OTHER CONDITIONS OR OTHER TERMS. IF THIS AGREEMENT IS CONSIDERED AN OFFER, YOUR ACCEPTANCE IS EXPRESSLY LIMITED TO THE AGREEMENT AS PRESENTED.

1. DEFINITIONS

“Access Fees” means the amount You pay to access the Subscription Services. Access Fees may be structured as a fixed fee for a fixed period, a fixed fee per unit of time, a fixed fee per User for a fixed period, a fixed fee per User per unit of time, a metered fee based on some other measurable characteristic or some combination thereof.  Access Fees are sometimes referred to as “Recurring Fees” in an Order Form.  All fees will be specifically identified in the Order Form.

“Affiliate” or “Affiliates,” means any other person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, or by a Party. The term "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a person, whether through ownership of more than fifty percent (50%) of the voting interests of a person or by written agreement.

“Alpha Customers” means Customers who provide Us access to their production technology environments supporting their sales, marketing or client success functions to help Us further develop Our products or services in return for free or favorable pricing on a limited basis.  This Agreement when applied to Alpha Customers will always include an SoW.

“API” means the various application programming interfaces enabling or supporting the development or accessing of scaleMatters and third-party applications and systems as applicable under this Agreement.

“Beta Services” means Our services that are not generally available to all customers or prospective customers.

“Confidential Information” means all information provided by You or Us (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing that is designated as confidential or would otherwise generally be deemed as confidential to a reasonable person. 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 or (ii) was known to the Receiving Party before receipt from the Disclosing Party.

“Customer” means the legal entity on whose behalf this Agreement is entered into with scaleMatters. Use of the terms “You” and “Your” refers to Customer.

“Customer Data” means Direct Customer Data and Indirect Customer Data.

“Description of Services (DoS)” means a document that describes the various services offered by scaleMatters.

 “Direct Customer Data” means all the information that You submit or collect via the components of the Subscription Services manifested from scaleMatters Intellectual Property including data derived from calculations and manipulations provided through the Subscription Services, but excluding anonymized benchmarking data that may be provided across multiple scaleMatters customers.

“Documentation” means Our online user guides, documentation, and help and training materials as updated from time to time, accessible on Our website, via the login to the Services or directly from Us.

“Indirect Customer Data” means all the information that You submit or collect via third-party services. In the case of third-party services engaged by You with Third-Party Non-Partner Providers, the Indirect Customer Data is governed by Your agreements with those providers. In the case of third-party services engaged by Us with Third-Party Partners, the Indirect Customer Data is governed by the appropriate appendix to this Agreement relevant to each Third-Party Partner.

“Instrumentation” means configuration of third-party technology to surface measurements underlying the Services.  This instrumentation will typically include hidden fields on web forms, a managed package within the CRM You use and trackers configured in conversation intelligence tools You use.

“Intellectual Property Rights” means, collectively, all (i) United States or foreign patents, patent disclosures, patent applications, and divisions, continuations, extensions or continuations-in-part thereof, and all discoveries which may be patentable; (ii) trademarks, service marks, trade dress, trade names and corporate names and registrations and applications for registration thereof (collectively, "Trademark Properties"); (iii) copyrights (registered or unregistered), registrations and applications for registration thereof, including all renewals, derivative works, enhancements, modifications, updates, new releases or other revisions thereof, and all works of authorship; (iv) computer software (including source code and object code), data, databases, code segments, algorithms, objects, routines, templates and documentation; (v) trade secrets and other Confidential Information, including, but not limited to, ideas, processes, formulas, inventions (whether patentable or unpatentable and whether or not reduced to practice), know-how, production techniques, research and development information, specifications, designs, proposals, technical data, financial and marketing plans, schematics, and customer and supplier lists and information, (vi) the internet domain names used by scaleMatters or its Affiliates, and (vii) the goodwill symbolized by all of the foregoing and connected therewith throughout the world.

“Order Form” means the form or proposal or online subscription process executed by You in which you agree to purchase the Services. The Order Form identifies what You are purchasing from Us. The Order Form may also include a Statement of Work.

“Professional Services” means ScaleMatters Professional Services and third-party professional services.

“Recurring Fees” means Access Fees.

“Renewal Fee Escalation” means a percentage by which the then current Access Fees will be increased for the next Renewal Subscription Period.

“scaleMatters” means the legal entity scaleMatters Inc., a Delaware corporation with principal place of business located at 12706 Split Creek Court, North Potomac, MD 20878. Use of the terms “We”, “Us” and “Our” refers to scaleMatters.

“scaleMatters BPO Services” means staff functions traditionally considered to be within the purview of sales, marketing and revenue operations functions which You have contracted with Us to perform on Your behalf.  Descriptions of the scaleMatters BPO Services can be found in the Description of Services or on the Order Form.

 “scaleMatters Subscription Services” means Our software, (or other subscription services that may offer from time to time) including any associated background data integrity monitoring, provided as a cloud-based service that You may have subscribed to or otherwise purchased access to by executing an Order Form or that We have otherwise made available to You and that are developed, operated and maintained by Us, in some cases in conjunction with Our Third-Party Partners. Descriptions of the scaleMatters Subscription Services can be found in the Description of Services (DoS) or on the Order Form.

“scaleMatters Professional Services” means non-recurring services provided by ScaleMatters including but not limited to initial account set-up, data conversion, training, web development and back-office support.

“Services” means Professional Services, Subscription Services, BPO Services and any other services provided to You by Us.

“Standard Support” means the right to access Our customer support personnel with questions or issues You may have regarding Your use of the Subscription Services. Support is available from 8am to 5PM Eastern Time (GMT-5), Monday through Friday excluding holidays. Support submissions are accepted at any time via email or other prior and mutually agreed to digital mechanisms (e.g. Slack), though responses to these submissions are only provided during the hours that support is available.

“Statement of Work (SoW)” means a document that specifically identifies and describes the Services scaleMatters is providing You under this Agreement.  We generally use an SoW when we are providing BPO and/or Professional Services, though the equivalent scope of work may be documented in the Order Form instead.

“Subscription Period” means either the Initial Subscription Period or the Renewal Subscription Period, whichever one is current.  

“Subscription Services” means scaleMatters Subscription Services, Third-Party Subscription Services and scaleMatters BPO Services when contracted on a subscription basis.

“Third-Party Partners” means those third parties engaged by Us to provide Third-Party Services.

“Third-Party Non-Partner Providers” means those third parties engaged by You to provide Third-Party Services.

“Third-Party Professional Services” means professional services or related services provided by Third-Party Partners.

“Third-Party Services” means Third-Party Professional Services and Third-Party Subscription Services.

“Third-Party Subscription Services” means services that are developed, operated and maintained by Third-Party Partners and Third-Party Non-Partner Providers. You may have subscribed to these services by executing an Order Form with Us, by executing an agreement directly with the Third-Party Partner or Third-Party Non-Partner Provider or by Us otherwise making the services available to You.

“User” or “Users” means Customer and Your Affiliates, and any individual (such as employees, representatives, agents, consultants) that You or Your Affiliate authorizes or allows to access or use the Services or associated Documentation via unique user identifications and passwords.

 

2. CHANGES TO THIS AGREEMENT

We periodically update the terms and conditions of this Agreement to reflect changes in applicable laws, changes in Our business practices or simply to provide more clarity. The most recent version of the terms and conditions of this Agreement can be found on Our website at www.scalematters.com. To the extent that We make any changes to the terms and conditions that are in Our sole discretion, material to the business relationship between You and Us (“Material Change in Terms”), We will post the changes in a revised version of these terms and conditions or notify You of such changes via other or additional method We deem most appropriate for the circumstances, in Our sole discretion. To the extent You object to such Material Change in Terms, You must provide us with written notice of Your objection within thirty (30) calendar days of the date We notified you of the changes (“Rejection of Terms Notice”). You can do this by sending an email to support@scalematters.com. Provided You have sent Us such Rejection of Terms Notice in accordance with the preceding sentences, You will be permitted to continue to use the Services under the immediately prior terms and conditions through the end of the current Subscription Period. We will consider any Rejection of Terms Notice to be equivalent to a Notice of Non-Renewal as described elsewhere in this Agreement, and this Agreement will not renew beyond the current Subscription Period.

 

3. SERVICES

1. Access. During the Subscription Period, We will provide You access to the Subscription Services to which you have subscribed in accordance with the terms of this Agreement. You may only give or otherwise facilitate access to the Subscription Services as provided for in this Agreement and the Acceptable Use Policy referenced herein. Anyone with access to your login credentials will be considered to be Users authorized by You and their use of the Subscription Services will be considered to be authorized by You. Unless otherwise indicated on the Order Form, you are not permitted to allow any individual or entity outside of your organization to use the Subscription Services under this Agreement.
2. Limits. Limits may apply to the number of Users, storage capacity or some other measurable characteristic. Any limits that apply will be specified in the Order Form associated with this Agreement. To the extent that Your use of the Subscription Services exceeds such limits, We will notify You that Your use of the Subscription Services exceeds such limits. You will have thirty (30) days to pay charges associated with Your use in excess of limits or to modify Your use such that it complies with said limits.
3. Modifications. We may modify the Subscription Services from time to time, which could include adding or deleting features and functions. Prior to making a Change, we will make reasonable efforts in providing advance notice to you by posting a notice on our website or in the user interface of the Subscription Service or API.
4. We may provide some or all of the Subscription Services through Third-Party Partners.
5. Additional Services. To the extent that We offer additional functionality in Subscription Services that You have not subscribed to, you may subscribe to these additional Subscription Services by executing a new Order Form.
6. Third-Party Subscription Services. You may also purchase Third-Party Subscription Services directly from Third-Party Non-Partner Providers or directly from Third-Party Partners referred to You by Us. Any purchase by You of Third-Party Subscription Services is governed solely by any agreement between You and such Third-Party Partner or Third-Party Non-Partner Providers. We do not warrant or support Third-Party Subscription Services subscribed to directly with Third-Party Non-Partner Providers or Third-Party Partners whether referred to You by Us or not.  You agree to provide Us with administrator access to all Third-Party Subscription Services that We deem relevant in order for Us to provide You with the scaleMatters Services.
7. Customer Support. Unless otherwise stated in the Order Form, the Access Fees You pay to Us include Standard Support.
8. Professional Services. You may purchase Professional Services from Us by executing an Order Form which may reference a Statement of Work as applicable. The terms and conditions of this Agreement will apply to Professional Services You purchase from Us. Professional Services You purchase from Us may be provided by employees of scaleMatters or employees of Third-Party Partners. Professional Services You purchase from Us are non-cancellable and all fees paid for Professional Services You purchase from Us are non-refundable. You may also purchase Third-Party Professional Services directly from Third-Party Partners referred to You by Us. Any purchase by You of Third-Party Professional Services directly from Third-Party Partners is governed solely by any agreement between You and such Third-Party Partner. We do not warrant or support Third-Party Professional Services whether referred to You by Us or not.

4. FEES AND PAYMENTS

1. Access Fees. Unless otherwise stated in an Order Form, Access Fees will remain constant during the Subscription Period unless You i) exceed any applicable limits identified on the Order Form, ii) execute a new Order Form to subscribe to additional Subscription Services, or iii) execute a new Order Form to change the Subscription Billing Period. To the extent You exceed any applicable limits identified on the Order Form, We will notify you and provide you with an option to change your usage such that it no longer exceeds such limits or execute a new Order Form with fees that permit such higher usage. Fixed monthly fees and per User fees will be billed in advance. Metered fees tied to some other measurable characteristic will be billed in arrears. While Access Fees are priced as a monthly fee, We will bill You for those fees annually in advance unless the Order Form states differently.
2. Professional Services Fees. Professional Services Fees are billable and due as indicated in the Order Form or applicable Statement of Work.
3. BPO Services Fees. BPO Services Fees are billable and due as indicated in the Order Form or applicable Statement of Work.
4. Payment against Invoice. We will invoice You in accordance with the terms in sections 4a, 4b, and 4c of this Agreement or the applicable Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date.
5. Payment Information. You will keep Your contact information, billing information and bank account information (where applicable) up to date. For some of the Services, You will be able to provide/update this information directly through the portal by which You access the Services. For other Services, We will send an initial invoice to the billing contact/address provided on the Order Form and that invoice will provide directions for submitting or updating this information.
6. Suspension of Service for Late Payment. If any amount owed by You under this or any other agreement for Our services is more than 30 days overdue, We may, without limiting Our other rights and remedies, suspend Our Services to You until such amounts are paid in full. We will give You at least 10 days’ prior notice that Your account is overdue before suspending services to You. We will not exercise Our rights under this section if You are, in Our sole discretion, disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
7. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchase hereunder. If we have the legal obligation to pay or collect Taxes for which You are responsible under this Section 4, 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.

 

5. TERM AND TERMINATION

1. Initial Subscription Period. The initial subscription period shall start on the Start Date as identified on the Order Form and continue through and Including the End Date as identified on the Order Form (“Initial Subscription Period”). To the extent you purchase access to the Subscription Services for a fixed fee for a fixed period of time, that fixed period of time will be considered the Initial Subscription Period. This Agreement cannot be terminated prior to the End Date (or the date on which access expires) other than for cause as described in Section 5.c below.
2. Renewal Subscription Period. Unless one of us gives the other written notice that it does not intend to renew the subscription, this Agreement will automatically renew for a duration equal to the duration of the Initial Subscription Period (“Renewal Subscription Period”). Renewal Subscription Periods cannot be terminated during such Renewal Subscription Period other than for cause as described in Section 5.c below. Written notice of non-renewal must be sent no less than sixty (60) days in advance of the end of the Subscription Period. Unless otherwise specified in the Order Form, the Renewal Subscription Period will be on the current terms and conditions of this Agreement and subject to the Renewal Fee Escalation identified in the Order Form or, if not specified in the Order Form, subject to Our standard pricing at the time the Renewal Subscription Period begins. Should You decide not to renew this Agreement, You may send the notice of non-renewal to support@scalematters.com. To the extent you purchase access to the Subscription Services for a fixed fee for a fixed period of time as specified on the Order Form, this section 5.b shall not apply and any extension of access beyond the fixed period of time shall require a new Order Form.
3. Termination. Either You or We may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other party of a breach of this Agreement if such breach remains uncured at the expiration of such thirty (30) day 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 benefit of creditors. Should You wish to terminate for cause, You may send the notice of breach and termination to support@scalematters.com. Notice of breach shall specify with particularity the terms breached, actions constituting breach and other reasonable information to permit putative breaching party to understand and respond to the notice of breach.
4. Effect of Expiration or Termination. If an Order Form expires or terminates, then this Agreement will remain in effect for any outstanding Order Forms, and you will immediately discontinue all use of the scaleMatters Services and Documentation subject to the expired or terminated Order Form. Following termination of this Agreement, you will no longer have access to the Services. You may however still access the Instrumentation and you will have a limited ability to modify the Instrumentation. We will not support the Instrumentation in your environment post Termination. At expiration of the last outstanding Order Form or earlier termination as otherwise provided in this Agreement, you will immediately discontinue all use of the scaleMatters Services and Documentation. Further, (a) each party will return or, if requested, destroy any Confidential Information belonging to the other party in its possession; (b) all earned and unpaid Fees become immediately due; and (c) at your written request and instruction (which must be received within thirty (30) days of expiration or termination), we will: (i) make Your Customer Data available to You for export or download. After that 30-day period, We will have no obligation to maintain or provide Your Customer Data, and other than for purposes described in Section 6.b below, will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control as provided in the Documentation, unless legally prohibited.
5. Refund or Payment upon Termination. If this Agreement is properly terminated by You in accordance with Section 5.c, We will refund You any prepaid Access Fees covering the remainder of the Subscription Period after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 5.c, You will pay any unpaid Access Fees covering the remainder of the Subscription Period and any unpaid Services Fees previously due. In no event will termination relieve You of Your obligation to pay any Access Fees payable to Us for periods prior to the effective date of termination or Services Fees previously due.

 

6. YOUR DATA

1. Limits on Us. We will not use, or allow anyone else to use, Customer Data to contact any individual or organization except as you direct or otherwise permit. We will use personally identifiable information from Customer Data only in order to provide the Services to you and only as permitted by applicable law, Our Privacy Policy (https://www.scalematters.com/privacy-policy) and this Agreement.
2. Aggregated Data. We may monitor use of the Services and Customer Data from all of Our customers and use the data gathered in an aggregated and anonymous manner to improve the Services and to provide relevant performance benchmarks to our customers. We may also sell such aggregated and anonymous data to third parties. Any such use of aggregate data will not include personally identifiable information from Your Customer Data.
3. Safeguards. We will maintain commercially appropriate administrative, physical and technical safeguards to protect Customer Data. You are solely responsible for determining if Your use of the Services complies with European Union Data Protection Directives. We make no claims as to the degree to which Your use of the Services complies with European Union Data Protection Directives.

 

7. OWNERSHIP

1. The Services. This is an agreement for access to and use of the Services and except as expressly stated otherwise herein, You are not granted a license to any software by this Agreement. We own or have rights to all intellectual property rights in and to the Services. This includes the software underlying the Services (including all derivatives or improvements thereof). It also includes the Instrumentation. All suggestions, enhancement requests, feedbacks or recommendations or other input provided by You or any other party relating to the Services or underlying software shall be owned by Us, and You hereby do and shall make all assignments and take all reasonable acts necessary to accomplish the foregoing ownership. Any rights not expressly granted herein are reserved by Us. You agree not to copy, rent, lease, sell, distribute, reverse engineer or create derivative works based on the Services in whole or in part, by any means, except as expressly authorized in writing by Us.
2. Customer Data. You own Your Customer Data. We have no ownership rights to Your Customer Data. You are solely responsible for the accuracy, quality, content and legality of Your Customer Data, the means by which Your Customer Data is acquired, and the transfer of Your Customer Data outside of the Services. You grant permission to Us and Our licensors to use Your Customer Data only as necessary to provide the Services to you and as permitted in this Agreement.  We own the aggregated and anonymized data described in Section 6.b which may in part have been derived from Your Customer Data.

 

8. CONFIDENTIALITY

Receiving Party will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any reason outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party (except Our Third-Party Partners), and (iv) limit access to Confidential Information to its employees, contractors and agents. Upon notice to Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state or local law, statute, rule or regulation, subpoena or legal process.

 

9. PUBLICITY

Unless otherwise indicated on the Order Form, You grant Us the right to add Your name and organization logo to Our customer list and website. Any additional publicity beyond what is expressly indicated in this Section 9 is strictly prohibited unless agreed to in writing and in advance by both You and Us, separate from this Agreement.

 

10. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

 

1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
2. Our Warranties. We warrant that (i) the Services will perform materially in accordance with the applicable Documentation, (ii) We will not materially decrease the functionality of the Services during a subscription period, and (iii) We will employ industry standard practices to protect the security and availability of Your Customer Data including the regular performance of data backups. You acknowledge that Your sole and exclusive remedy for a breach of the warranties set forth in Section 10(b)(i) and (ii) is to inform Us of such failure and permit us to exercise commercially reasonable efforts to remedy such non-conformity.
3. Your Warranties. You warrant that (i) You have and will continue to have sufficient right to use content You upload to or use with the Services, (ii) You will comply with all domestic and international export laws, regulations, and other controls that apply to the distribution, development, users and use of the Services, and (iii) Your use of the Services will comply with all applicable data protection, privacy, and technology laws and regulations.
4. 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, DATA ACCURACY, QUIET ENJOYMENT, TITLE, SYSTEM INTEGRATION, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICES ARE PROVIDED “AS-IS”. EXCLUSIVE OF ANY WARRANTY WHATSOEVER.

11. MUTUAL INDEMNIFICATION

 

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 the use of the Services in accordance with this Agreement 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 court-approved settlement of, a Claim Against You, provided You (i) promptly give Us written notice of the Claim Against You, (ii) 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 (iii) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to the Services, We may in Our discretion and at no cost to You (x) modify the Services so that they no longer infringe or misappropriate, without breaching Our warranties under Section 10(b) (Our Warranties), (y) obtain a license for Your continued use of the Services in accordance with this Agreement, or (z) terminate Your subscriptions for the infringing or misappropriating Services 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 to the extent a Claim Against You arises from content (including Customer Data) You upload to, or other hardware/software used with the Services, or Your breach of this Agreement.
2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Customer Data, or Your use of the Services in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and 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 court-approved settlement of, a Claim Against Us, provided We (i) promptly give You written notice of the Claim Against Us, (ii) 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 (iii) give You all reasonable assistance, at Your expense.
3. Exclusive Remedy. This Section 11 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 11.

12. LIMITATION OF LIABILITY

IF YOU HAVE ANY BASIS FOR RECOVERING DAMAGES (INCLUDING BREACH OF THIS AGREEMENT), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT YOUR EXCLUSIVE REMEDY IS TO RECOVER, FROM SCALEMATTERS OR ANY AFFILIATES, RESELLERS, DISTRIBUTORS, THIRD-PARTY APPS AND SERVICE PROVIDERS, AND VENDORS, DIRECT DAMAGES UP TO AN AMOUNT EQUAL TO THE LESSER OF FIVE THOUSAND DOLLARS ($5,000) OR THE TOTAL AMOUNTS PAID BY YOU FOR THE SUBSCRIPTION SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. YOU CANNOT RECOVER ANY OTHER DAMAGES OR LOSSES, INCLUDING DIRECT, CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. EXCEPT FOR ACTIONS FOR NONPAYMENT OF FEES OR BREACH OF A PARTY’S PROPRIETARY RIGHTS, NO ACTION, REGARDLESS OF FORM, ARISING DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUED.

 

13. GENERAL PROVISIONS

 

1. Entire Agreement. This Agreement, together with any applicable Order Forms and any other documents incorporated by reference, constitutes the entire agreement between You and Us regarding Your use of the Services. This Agreement supersedes all prior proposals, agreements and other communications between You and Us, written or oral, related to the subject matter of this Agreement.
2. Conflicting Terms. To the extent any conflict or inconsistency exists among the terms in the following documents, the order of precedence shall be: (1) applicable Order Forms (most recent to least recent), (2) Statement of Work (SoW), (3) this Agreement, and (4) the Documentation.
3. Notices. All notices to You described in this Agreement will be deemed effective when sent to the email address provided by You on Your Order Form. Any notice to Us will be deemed effective when sent in accordance with the terms of this Agreement or otherwise when delivered to the physical address for our corporate office listed on our website (https://www.scalematters.com), Attention: CFO.
4. Survivability. All provisions that by their sense, context, or effect the parties intend to survive the termination of this Agreement shall survive the termination of this Agreement for any reason, including the confidentiality provisions set forth in this Agreement.
5. Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
6. Severability. If a court finds that any provision or provisions of this Agreement are invalid or otherwise unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. A court may reform any provision deemed invalid or unenforceable in order to effect this Agreement’s expressed intentions.
7. Interpretation. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, policies, terms and appendices referred to in this Agreement are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
8. Governing Law and Venue. The laws of the State of Maryland shall govern this Agreement without regard to its choice-of-law principles. Any legal suit, action, or proceeding arising out of this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Maryland in each case located in Montgomery County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
9. Export Laws. You must comply with all domestic and international export laws and regulations that apply to the software and/or scaleMatters materials, which include restrictions on destinations, end users, and end use.
10. Relationship. No agency, partnership, joint venture or employment is created as a result of this Agreement, and You do not have any authority of any kind to bind Us in any respect whatsoever. There are no third-party beneficiaries intended under this Agreement.
11. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, pandemic, loss of power, telecommunications or transportation failure, explosion, war, terrorism, cyber terrorism or other comparable criminal or willful acts (including third-party hackers or other third-party malicious acts), invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
12. Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any similar legislation as may be enacted, will not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not govern this Agreement or the rights and obligations of the parties under this Agreement.
13. 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 (including all Order Forms), without the other party’s consent 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 covering the remainder of the current Subscription Period of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.