BEFORE USING THE FOUNDRY INTENT PLATFORM APPLICATION, PLEASE READ THESE TERMS OF SERVICE. THESE TERMS OF SERVICE ARE INCORPORATED BY REFERENCE INTO THE ORDER FORM, STATEMENT OF WORK OR OTHER AGREEMENT (“ORDER FORM”) EXECUTED BY THE COMPANY IDENTIFIED AS THE CUSTOMER THEREIN (“CUSTOMER”) AND IDG COMMUNICATIONS, INC. (DBA FOUNDRY) (“FOUNDRY”), PURSUANT TO WHICH THE CUSTOMER RECEIVES A SUBSCRIPTION TO ACCESS AND USE THE PLATFORM APPLICATION. THESE TERMS OF SERVICE AND THE ORDER FORM TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND FOUNDRY (THIS “AGREEMENT”).
1. The Platform Application.
(a) Access and Availability. Subject to and conditioned upon Customer’s and its Users’ (as defined below) compliance with the terms and conditions of this Agreement, Foundry hereby grants Customer a limited, non-exclusive, non-transferable right to access and use one instance of the Platform Application, in each case during the Subscription Term and in accordance with this Agreement (including the specific access rights and limitations set forth in the Order Form) (the “Subscription”). Foundry will make the Platform Application available to (a) Customer and (b) individuals who are authorized by Customer to use the Platform Application on behalf of the Customer and who have been supplied user identification and passwords by Customer (or by Foundry at Customer’s request), including employees, consultants, contractors, and agents of Customer (“Users”). Such use is limited to Customer’s internal use. “Platform Application” means the online, website application provided by Foundry via https://foundryco.com/idg-foundryintent-terms/ or at such other designated URL as Foundry may assign from time to time (including all components thereof, on an individual and collective basis).
(b) Subscription Term. Customer’s initial subscription term for the Platform Application commences on the expected “Subscription Start Date” stated in the Order Form, or, if none is provided in the Order Form, the day Users’ login names and a password are issued to Customer to access the Platform Application under the Order Form (the “Subscription Start Date”). The Subscription will continue for the “Initial Subscription Term” specified in the Order Form (the “Initial Subscription Term”), and will automatically renew for successive one (1) year periods (each, a “Renewal Term”) at the Platform Application subscription price in effect on a generally commercially available basis at the time of the renewal, based on the data package and product functionality purchased by Customer, unless (i) either party gives the other party written notice of nonrenewal at least thirty (30) days prior to the end of the Initial Subscription Term or the Renewal Term then in effect or (ii) the parties mutually execute a separate Order Form for such renewal, in which case (a) the separate mutually executed renewal Order Form will be deemed to be an addendum to and become part of the Agreement, (b) the renewal term set forth in such separate mutually executed renewal Order Form will be deemed to be a “Renewal Term” hereunder, and (c) this sentence will continue to apply for further subsequent renewals. The Initial Subscription Term plus all Renewal Terms are referred to herein as the “Subscription Term”.
(c) Customer Affiliates. The Subscription is granted solely to the Customer, and not any other third parties (specifically, not to any of Customer’s Affiliates), unless it is otherwise set forth in the Order Form or agreed to by Foundry in writing. Customer’s Affiliates may purchase subscriptions (“Subscriptions”) to the Platform Application under separate Order Forms. If any of Customer’s Affiliates are granted any right to access or use the Platform Application hereunder, Customer will remain fully responsible and liable for all acts and omissions of such Affiliates and will cause such Affiliates to comply with the provisions of this Agreement. “Affiliate” means, with respect to a party, any entity which directly or indirectly controls, is controlled by or is under common control with such party, wherein “control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of such party.
(d) Service Level Agreement and Support. Foundry will provide the general maintenance services and technical support described in the Service Level Agreement (“SLA”) set forth in Schedule A.
(e) Services Improvements and Upgrades. Foundry reserves the right, in its sole discretion, to make any changes to the Platform Application that it deems necessary or useful to maintain or enhance: (i) the quality or delivery of services to its Customers; (ii) the Platform Application’s cost efficiency or performance; or (iii) to comply with applicable law, rule, or regulation; provided, however, that Foundry shall not make any change to the Platform Application that in any way degrades, removes features, functionality, capability, or adversely impacts performance of the Platform Application or otherwise materially adversely impacts Customer’s use thereof. The foregoing shall not be construed to impose any obligation on Foundry to add functionality or features.
2. Customer Conduct and Use.
(a) Customer Data. Customer will retain all right, title and interest in and to all Customer Data provided in the planning, execution or analysis of marketing programs, as well as all information generated by Users using the Platform Application (collectively, “Customer Data”). Customer hereby grants to Foundry the right to host, transmit, use and/or display Customer Data in order to provide the Platform Application in accordance with this Agreement. For the avoidance of doubt, Customer Data does not include any of the data or information identified as Foundry IP in section 5 below, regardless of whether such data or information is generated from Customer Data. Foundry will not access Customer Data except: (i) to deliver the Service, and to respond to service or technical problems; (ii) to monitor compliance with this Agreement; (iii) if there has been a violation of this Agreement; (iv) to assess or determine whether the Platform Application is being properly implemented and configured for the service(s) purchased by Customer; (v) at Customer’s request; or (vi) upon Customer’s written consent (including by email). The foregoing shall not be construed to require Foundry to monitor Customer’s compliance with the terms of this Agreement; Customer is solely responsible for the Customer Data. Foundry may also collect data with respect to Customer’s use of the Platform Application and report on such usage in an aggregated and anonymous manner.
(b) Sensitive Information. Customer acknowledges that the Platform Application is not intended to collect, store, transmit, or receive Sensitive Information as defined herein, and that any use of the Platform Application for such information would constitute a material breach of this Agreement. Customer shall not upload any Sensitive Information onto the Platform Application. “Sensitive Information” means credit or debit card numbers, personal financial account information, Social Security numbers, passport or visa numbers, driver’s license numbers or similar personal identifiers, racial or ethnic origin, physical or mental health condition or information, birth dates, or other employment, financial or health information, or other similarly sensitive personal information. Customer and its Users are solely responsible for reviewing all data uploaded to ensure that the Platform Application is not used to store or transmit Sensitive Information. In the event that any such Sensitive Information is uploaded to the Platform Application, Customer shall remove all Sensitive Information from the Platform Application immediately or, at its sole discretion, Foundry may purge the same from the Platform Application provided, however, that the foregoing shall not be construed to require Foundry to monitor Customer’s use of the Platform Application.
(c) Compliance. Customer is responsible for (i) all activities that occur with respect to the Customer account; (ii) its and its Users’ use of the Platform Application and compliance with this Agreement; (iii) all Customer Data and other data uploaded, stored or accessible by Customer or its Users via or on the Platform Application; and (iv) operation, maintenance, and management of, and all access to and use of Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of a third party.
(d) Certain Restrictions. Customer and its Users will use the Platform Application for internal business purposes only as contemplated by this Agreement and will not:
(i) Tamper with the security of the Platform Application; (ii) Attempt to probe, scan or test the vulnerability of the Platform Application, breach the security or authentication measures of the Platform Application without proper authorization or knowingly render any part of the Platform Application unusable; (iii) Access data on the Platform Application not intended for the Customer or log into a server or account on the Platform Application that Customer is not authorized to access; (iv) Lease, distribute, (sub)license, sell or otherwise commercially exploit the Platform Application, use the Platform Application for timesharing or service bureau purposes or otherwise for the benefit of a third party, or make the Platform Application (including any evaluation version) available to a third party other than as contemplated in this Agreement; (v) Allow any third party that offers or provides services that are competitive with Foundry’s products or services to use or access the Platform Application, use or access the Platform Application to develop a product or service that is competitive with Foundry’s products or services or otherwise copy any ideas, features, functions or graphics of the Platform Application; (vi) Reverse engineer, decompile, disassemble, translate or seek to obtain the source code of the Platform Application, or modify or create a derivative work of the Platform Application or any related documentation; or (vii) Disclose (whether orally or in writing) information or analysis regarding the specifications or performance of the Platform Application (including benchmark tests); or (viii) Otherwise access or use the Platform Application beyond the scope of the authorization granted herein.
(e) Communications. Customer will be responsible for the content of all communications sent using the Platform Application. Customer will not use the Platform Application to communicate any message or material that (i) is libelous, harmful to minors, obscene or constitutes pornography; (ii) infringes the intellectual property rights of any third party or is otherwise unlawful; or (iii) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law. Foundry will use commercially reasonable efforts to provide Customer with the opportunity to remove or disable access to any offending material or content.
(f) Suspension. In the event of any breach or threatened breach of this Agreement by Customer or any Users (including non-payment of fees), without limiting Foundry’s other rights and remedies, Foundry may immediately suspend Customer’s access to the Platform Application.
(a) Scope. “Confidential Information” means all non-public information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) under this Agreement, in writing, orally, electronically, or in any other form, that is designated, at or before the time of disclosure, in writing or identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. The terms and conditions of the Agreement and the Platform Application (including source and object codes) are Confidential Information of Foundry. Confidential Information shall not include information the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt; (ii) is or has become public knowledge or publicly available through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to, and did not use any of, such Confidential Information.
(b) Restrictions. The Receiving Party will: (i) not use the Disclosing Party’s Confidential Information for any purpose outside of this Agreement; (ii) not disclose such Confidential Information to any person or entity, other than its directors, employees, consultants and professional advisers, and actual or prospective investors (collectively, “Representatives”), who have a “need to know” for the Receiving Party to exercise its rights or perform its obligations hereunder, provided that such Representatives are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section 3; and (iii) use commercially reasonable measures to protect the confidentiality of such Confidential Information, such precaution not to be less than the precautions each party takes to protect the confidentiality of its own Confidential Information, and in no event shall be less than reasonable care.
(c) Exceptions. If the Receiving Party is required by applicable law or court order to make any disclosure of such Confidential Information, it will first give written notice of such requirement to the Disclosing Party and permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in its Confidential Information and provide full cooperation to the Disclosing Party in seeking to obtain such protection.
(d) Equitable Relief. The Receiving Party acknowledges that unauthorized disclosure of Confidential Information could cause substantial harm to the Disclosing Party for which damages alone might not be a sufficient remedy and, therefore, that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law or equity.
4. Fees; Interest; Taxes.
Customer will pay to Foundry all of the fees specified in the Order Form, in United States currency, unless otherwise specified in the Order Form. Such fees are based on Subscriptions purchased, whether or not Customer actually utilizes the service. All payment obligations are non-cancellable. All amounts paid to Foundry are non-refundable, unless otherwise expressly set forth in this Agreement. Fees will be invoiced in advance as set forth in the Order Form. Unless otherwise stated in the Order Form, all fees are due within thirty (30) days from the invoice date. Unpaid invoices are subject to a late payment charge of 1.5% per month on any outstanding balance or the maximum permitted by law, whichever is lower, plus all reasonable expenses and fees of collection. Foundry reserves the right, without prior notice to Customer, to suspend Customer’s and its Users’ access to the Platform Application in the event that payment is more than thirty (30) days past due until Customer makes payment in full; in such case, Foundry shall not incur any obligation or liability to Customer. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively, “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those Taxes based on the income of Foundry. Customer will not withhold any Taxes from any amounts due Foundry. If Foundry pays any such Taxes on behalf of Customer, Customer will promptly reimburse Foundry for such payments.
5. Proprietary Rights.
Customer is permitted to access and use the Platform Application, but this Agreement is not otherwise an agreement for the sale or license of any software. Customer acknowledges that the Platform Application contains copyrighted and proprietary products and materials, certain components of which are licensed from one or more of Foundry licensors. Foundry and Foundry’s licensors solely and exclusively retain all right, title and interest in and to the Platform Application and related support, documentation and professional services deliverables, and all related and underlying software, interfaces, databases, data models, structures, non-Customer-specific data, aggregated statistical data, technology, reports and other intellectual property, plus all intellectual and other proprietary rights therein or thereto (all of the foregoing, the “Foundry IP”). Except for the Subscription granted hereunder, Customer has no right, title or interest in or to the Foundry IP.
6. Term and Termination.
(a) Term and Termination. This Agreement will be effective during the Subscription Term, unless earlier terminated as follows. Unless otherwise stated in the Subscription Agreement, this Agreement may only be terminated: (i) by a party upon written notice to the other party (A) if the other party breaches a material term of this Agreement that is uncured within thirty (30) days after receipt of written notice of such breach from the non-breaching party; (B) 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; or (C) immediately after receipt of written notice from the non-breaching party in the event of a material breach by the other party of Section 2 of these Terms; or (ii) by Foundry pursuant to Section 9(a).
(b) Outstanding Fees. Customer will pay all fees owed to Foundry that have accrued up until termination of this Agreement immediately upon such termination effective date. In addition, if Foundry terminates this Agreement pursuant to clause (i) of Section 6(a), Customer will pay Foundry, within thirty (30) days after termination, all unpaid amounts that would have been owed to Foundry for the remainder of the then-current Subscription Term absent early termination.
(c) Effect of Termination. Upon any termination of this Agreement, all rights, licenses, and authorizations granted herein will terminate immediately. Customer will immediately cease all use of and access to the Platform Application and any Foundry Confidential Information in its possession. Foundry will have no liability for any suspension or termination of Customer’s access to the Platform Application, or any termination of this Agreement, provided that it is conducted in accordance with the terms of this Agreement. Upon written request by Customer made within ninety (90) days after termination, Foundry will provide Customer with temporary access to the Platform Application solely for Customer to retrieve its Customer Data, but not any other purpose. After such 90-day period, Foundry will have no obligation to maintain or provide access to such Customer Data and will thereafter, unless legally prohibited and except for archival backup purposes, delete all such Customer Data in its possession or control, unless such deletion has been requested by the Customer sooner. Sections 3, 4, 5, 6, 7(a), 7(b), 8, 9 and 11 of these Terms will survive any termination or expiration of this Agreement.
7. Warranties; Disclaimer.
(a) Corporate Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that the Order Form is executed by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement (including these Terms of Service).
(b) Disclaimer. EXCEPT FOR THE WARRANTY CONTAINED IN SECTION 7(a), (I) THE PLATFORM APPLICATIONIS PROVIDED “AS IS”, AND (II) FOUNDRY, ON BEHALF OF ITSELF AND ITS LICENSORS, SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON- INFRINGEMENT AND FITNESS FOR ANY PURPOSE, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE WARRNTIES CONTAINED IN SECTION 7(a) ARE SOLELY TO AND FOR THE BENEFIT OF CUSTOMER AND NO OTHER THIRD PARTY. FOUNDRY AND ITS LICENSORS DO NOT WARRANT THAT (A) THE FUNCTIONS CONTAINED IN THE PLATFORM APPLICATION WILL MEET THE CUSTOMER’S REQUIREMENTS, (B) THE OPERATION OF THE PLATFORM APPLICATION WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE, (C) ANY ERRORS IN THE PLATFORM APPLICATION CAN OR WILL BE CORRECTED, (D) THE PLATFORM APPLICATION OR THE FUNCTIONS CONTAINED THEREIN, OR ANY RESULTS OF THE USE THEREOF (INCLUDING ESTIMATES AND OPTIMIZATION OF THIRD PARTY ADVERTISING), WILL MEET CUSTOMER’S REQUIREMENTS, INCLUDING FOR RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, ACCURACY OR COMPLETENESS. FOUNDRY AND ITS LICENSORS WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELAYS, INTERRUPTIONS, DELIVERY OR SERVICE FAILURES, OR ANY OTHER PROBLEMS OR DAMAGES ARISING FROM CUSTOMER’S USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR ANY OTHER SYSTEMS.
8. Limitations of Liability.
EXCEPT FOR LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, INCLUDING LOSS OF BUSINESS, GOODWILL, PROFITS, DATA, SALES OR REVENUE, WORK STOPPAGE OR COMPUTER FAILURE OR MALFUNCTION, IN EACH CASE WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL FOUNDRY BE LIABLE TO CUSTOMER FOR ANY DAMAGES, COSTS, CLAIMS OR OTHER LIABILITIES (EXCLUDING INDEMNIFICATION OBLIGATIONS) RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, IN EXCESS OF THE LESSER OF (I) THE TOTAL FEES PAID BY THE CUSTOMER FOR THE RIGHT TO ACCESS AND USE THE PLATFORM APPLICATION UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR ACT GIVING RISE TO THE CAUSE OF ACTION OR (II) FIVE HUNDRED THOUSAND U.S. DOLLARS (US$500,000). This Section 8 will apply to the maximum extent permitted under applicable law.
9. Mutual Indemnification.
(a) Foundry Indemnification. Foundry will indemnify, defend and hold harmless Customer against any loss, damage or cost (including reasonable and necessary attorneys’ fees) (“Losses”) incurred in connection with any final judgment arising under United States law (a “Claim”) rendered against Customer finding that Customer’s use of the Platform Application, as contemplated hereunder, infringes the intellectual property rights of a third party. Notwithstanding the foregoing, if Foundry reasonably believes that Customer’s use of any portion of the Platform Application is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party intellectual property rights then Foundry may, at its expense and in its sole discretion: (i) procure for Customer the right to continue using the Platform Application; or (ii) replace or modify the applicable software, services or other material so that there is no longer any infringement, violation or misappropriation, provided that such replacement or modification does not adversely affect the functional capabilities of the Platform Application. If, in Foundry’s opinion, (i) and (ii) above are infeasible or commercially impracticable, Foundry may, in its sole discretion, terminate this Agreement and refund Customer a prorated amount equal to the pre-paid Subscription Fees covering the whole months that would have remained, absent such early termination, in Customer’s Subscription Term following the effective date of such early termination. The foregoing indemnification obligation of Foundry will not apply: (1) if the Platform Application is modified by any party other than Foundry, but solely to the extent the alleged infringement is caused by such modification; (2) if the Platform Application is combined with other non-Foundry products, applications, or processes not authorized by Foundry, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Platform Application; (4) to any third party deliverables or components contained within the Platform Application that are not provided by Foundry; or (5) to any action arising as a result of the Customer Data. THIS SECTION 9(a) SETS FORTH FOUNDRY’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
(b) Customer Indemnification. Customer will indemnify, defend and hold Foundry and its Affiliates, and their officers, directors, employees, agents and contractors (“Foundry Indemnitees”), harmless from and against any Losses incurred in connection with Claims against Foundry Indemnitees arising from or relating to Customer’s or its Users’ communications with its actual and potential customers (including but not limited to advertisements), use of Customer Data or use of the Platform Application that is not consistent with the terms of this Agreement, in each case except to the extent Foundry is obligated to indemnify Customer under Section 9(a).
(c) Procedure. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party will promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier will have sole responsibility for and control of the defense and all related settlement negotiations with respect to the Claim; provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability, and may not enter into any settlement agreement that adversely affects the aggrieved party without the aggrieved party’s prior written consent; and (iii) the aggrieved party will cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim. Indemnifier may, at its sole expense, actively participate in any suit or proceeding, through its own counsel.
10. Data Privacy and Security.
(b) Security. Foundry has implemented Appropriate Security Measures (as hereinafter defined) and maintains the Platform Application at reputable third-party Internet service providers and co-location facilities. “Appropriate Security Measures” means commercially reasonable efforts to ensure that Customer Data will be maintained accurately and safeguarded including the use of technical and physical controls to protect Customer Data against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by Foundry.
(c) EU/EEA/UK Data Processing. To the extent that in the provision of the Platform Application hereunder, Foundry processes any Personal Data from individuals in the European Union, the European Economic Area, the United Kingdom or Switzerland (“European Area”) that is subject to the General Data Protection Regulation (the “GDPR”) on Customer’s behalf, the terms of the Foundry Data Processing Addendum (the “DPA”), which are hereby incorporated by reference and available at https://foundryco.com/wp-content/uploads/2023/02/foundry-intent-platform-DPA.pdf shall apply. Further, Customer acknowledges in all cases that Foundry acts as the data processor of Customer Data and Customer is the data controller of Customer Data, unless otherwise agreed in writing. Customer will obtain and maintain any required consents necessary to permit the processing of Customer Data and all Personal Data therein under this Agreement.
(d) International Transfers. The parties also agree that any transfer of Personal Data of European Area individuals to third countries which do not ensure an adequate level of data protection shall be subject to the provisions of the European Commission-approved Standard Contractual Clauses (MODULE TWO: Transfers controller to processor) for the Transfer of Personal Data to Processors Established in Third Countries (2021/914/EU) (“Standard Contractual Clauses”), which are incorporated here by reference and in the DPA. These Standard Contractual Clauses include the UK Addendum The UK Addendum to these Standard Contractual Clauses which came into force on 21 March 2022 and were issued by the UK Information Commissioner under S119A(1) UK Data Protection Act 2018. These Standard Contractual Clauses shall apply to any data being transferred from any country which has GDPR-like requirements for trans-border transfers.
(e) CCPA Service Provider Terms. To the extent that Customer is subject to the California Consumer Privacy Act of 2018, Cal. Civil Code § 1798.100 et seq., (“CCPA”) the parties agree that Customer is a “Business” under the CCPA and Foundry is a “Service Provider” that (a) provides the Subscription services to Customer pursuant to this Agreement and (b) Processes, on behalf of Customer, Personal Information that is necessary to perform the Services under this Agreement. The parties further agree and covenant as follows:
(1) Foundry is acting solely as a Service Provider with respect to Personal Information.
(2) Foundry shall not Sell Personal Information.
(3) Foundry shall not retain, use or disclose Personal Information (i) for any purpose other than for the specific purpose of performing the Services, or (ii) outside of the direct business relationship between Customer and Foundry.
(4) Foundry shall cooperate with Customer if a Consumer requests (i) access to his or her Personal Information, (ii) information about the categories of sources from which the Personal Information is collected, or (iii) information about the categories or specific pieces of the Personal Information, including by providing the requested information in a portable and, to the extent technically feasible, readily useable format that allows the Consumer to transmit the information to another entity without hindrance. Foundry shall promptly inform Customer in writing of any requests with respect to Personal Information.
(5) Upon Customer’s written request, Foundry shall promptly delete a particular Consumer’s Personal Information from Foundry’s records. In the event Foundry is unable to delete the Personal Information for reasons permitted under the CCPA Foundry shall (i) promptly inform Customer of the reason(s) for its refusal of the deletion request, (ii) ensure no further retention, use or disclosure of such Personal Information except as may be necessitated by the reason(s) for Foundry’s refusal of the deletion request and as disclosed to Customer, (iii) take commercially reasonable steps to ensure the privacy, confidentiality and security of such Personal Information pursuant to this Agreement, and (iv) delete such Personal Information promptly after the reason(s) for Foundry’s refusal has expired.
(6) For the purposes of this Section 10(e) only, the following definitions shall apply:
“Consumer” means an identified or identifiable natural person who is a resident of the United States, including without limitation an identified or identifiable natural person who is a California resident, as defined in Section 17014 of Title 18 of the California Code of Regulations.
“Personal Information” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular Consumer or household, that may be (i) disclosed or otherwise made available at any time to Foundry by Customer in anticipation of, in connection with or incidental to the performance of the Services; or (ii) Processed at any time by Foundry in connection with or incidental to the performance of the Agreement.
“Processes” / “Processing” means any operation or set of operations that are performed on personal data or on sets of Personal Information, whether or not by automated means.
“Sell” shall have the meaning ascribed to it in the CCPA.
11. General Provisions.
(a) Entire Agreement; Interpretation. This Agreement (which consists of the Order Form and these Terms of Service) constitutes the entire agreement and sets forth the entire understanding between the parties hereto with respect to Customer’s Subscription to the Platform Application described in the Order Form and supersedes all prior agreements and discussions with respect thereto. In the event of an inconsistency between the terms and conditions of these Terms of Service and the Order Form, the terms of the Order Form will govern. This Agreement will control over any different or additional terms of a Customer purchase order or other non-Foundry ordering document, and no terms included in any Customer purchase order or other non-Foundry ordering document will apply to the Customer’s Subscription or use of the Platform Application. Headings contained in this Agreement are inserted for convenience of reference only and will not in any way define or affect the meaning or interpretation of any provision of this Agreement. For purposes hereof, “including” means “including without limitation”.
(b) Marketing. Neither party may issue any press release regarding this Agreement without the other party’s prior written consent. However, Foundry may include the name and logo of the Customer in lists of customers or vendors in accordance with the other party’s standard guidelines.
(c) Relationship of Customer and Foundry. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
(d) Modifications and Waiver. No modification of, amendment or addition to this Agreement is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. No delay in exercising any right or remedy will operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be construed as a waiver of any right or remedy on any future occasion.
(e) Assignment. This Agreement and any rights or obligations hereunder may not be assigned, sublicensed or otherwise transferred by the parties without the prior written consent of the non-assigning party. Notwithstanding the forgoing, either party may assign or transfer this Agreement to an Affiliate or in connection with a change of control event, merger, acquisition, sale of substantially all of its assets, or by operation of law provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
(f) Choice of Law and Alternative Dispute Resolution. This Agreement is governed by the laws of the Commonwealth of Massachusetts, USA, without regard to the conflicts of law provisions of any jurisdiction. The Parties agree that disputes arising out of or relating to this Agreement, other than actions by Foundry to collect any outstanding invoices, or petitions for temporary or permanent injunctive relief, will be submitted to mediation before a mediator appointed by the American Arbitration Association (“AAA”) in Boston, Massachusetts, and conducted under AAA’s mediation rules. If mediation fails to resolve the dispute, the matter will be submitted before an arbitrator appointed by AAA in Boston, Massachusetts, for binding arbitration under its Commercial Arbitration Rules. The arbitrator will decide all questions relating to arbitrability, including whether the parties have agreed to arbitrate and/or whether the agreement to arbitrate covers the dispute.
(g) Class Action Waiver. No Party shall commence or seek to prosecute or defend any dispute, controversy, or claim based on any legal theory arising out of or relating to this Agreement, or the breach thereof, other than on an individual basis, non-class, non-collective action basis. No Party shall seek to prosecute or defend any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach thereof, in a representative or private attorney general capacity. The arbitrator shall not have the power to consolidate any arbitration under this Agreement with any other arbitration, absent agreement of all parties involved, or otherwise to deal with any matter on a non-individual, class, collective representative, or private attorney general basis.
(h) Notices. Any notices under this Agreement will be in writing and sent via certified or registered mail, return receipt requested, or by overnight courier service. Notices to Foundry will be sent to the address for Foundry set forth in the Order Form with a copy to: email@example.com. Notices to Customer will be sent to the address for Customer set forth in the Order Form and addressed to Customer’s signatory unless otherwise designated by Customer. (i) Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision will be modified to the extent necessary to render it enforceable, or will be severed from this Agreement, and all other provisions of this Agreement will remain in full force and effect.
(i) Transmission/Counterparts/Electronic Signatures. This Agreement will be deemed executed upon mutual execution of the Order Form, and which may be executed in several counterparts each of which when executed will be deemed to be an original, and such counterparts will each constitute one and the same instrument. The Parties consent to electronic signatures for the purpose of executing this Agreement by e-mail or other electronic means, subject to compliance with any applicable laws, rules or regulations. Any such documents that are delivered electronically and accepted are deemed to be “in writing” to the same extent and with the same effect as if the Agreement had been signed manually. In no event will electronic execution expand such assent to include any terms other than those explicitly set forth in this Agreement.
(j) Force Majeure. Neither party to this Agreement will be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labor difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances. Notwithstanding the foregoing, a party’s payment obligations may not be delayed due to Force Majeure.
(k) Subcontractors. Foundry may use the services of subcontractors for the provision of any Platform Application and performance of any services under this Agreement; provided, however, Foundry will be responsible for each subcontractor’s performance of services under this Agreement and for each subcontractor’s compliance with the terms and conditions of this Agreement.
Schedule A – SERVICE LEVEL AGREEMENT (SLA)
1. Platform Application Availability
The Foundry Platform Application will be available 24 hours per day, 7 days per week, excluding any scheduled maintenance as described below.
Category 1 –Scheduled Maintenance
Foundry has the right to execute a scheduled maintenance at any time during the week provided Foundry notifies Customer via email at least two (2) days in advance.
Category 2 – Unscheduled Maintenance
Unscheduled maintenance may be required to resolve issues that are critical for Customer and/or performance of the Platform Application. Foundry will use commercially reasonable efforts to notify Customer via email at least four (4) hours prior to the unscheduled maintenance.
2. Product Support
Foundry’s Product Support Team provides Standard Support from 8:00 AM ET to 8:00 PM ET Monday through Friday excepting Foundry observed holidays.