Terms of Use
Last updated on January 14, 2024
Agreement to our legal terms
We are err0, LLC (“Provider”, “we”, “us”, “our”), a California limited liability company. By clicking “Accept” or by accessing or using err0 Services, you, the Customer, agree to be bound by these Terms of Use. These legal terms constitute a legally binding agreement made between you, whether personally or on behalf of an entity you have the legal capacity to represent (“you“), and err0, LLC, concerning your access to and use of the err0 Services. You agree that by accessing the err0 Services, you have read, understood, and agreed to be bound by these Terms of Use. IF YOU DO NOT AGREE WITH ALL OF THESE LEGAL TERMS OF USE, DO NOT CLICK “ACCEPT” AND DO NOT ACCESS OR USE THE ERR0 SERVICES AS YOU ARE EXPRESSLY PROHIBITED FROM USING SUCH SERVICES AND MUST DISCONTINUE USE IMMEDIATELY. We reserve the right to modify and amend these Terms of Use at any time. As further set forth in Section 10.12 below, such modified Terms of Use will become effective upon posting or notifying you via email or other electronic means. By continuing the err0 Services after the effective date of change, you agree to be bound by these modified Terms of Use. Contact - while we are not obligated to provide support concerning your use of the err0 Services, for queries please contact us at support@err0.io. The Services are intended for users who are at least 18 years of age. We recommend that you print a copy of these Terms of Use for your records.
Definitions
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. “Customer” means the Provider customer named above and its Affiliates which have entered into Order Forms. “Customer Data” means all electronic data and information submitted, entered, uploaded, or retrieved in any form by or for Customer relating to the err0 Services. “err0 Data” means any Records in Customer‘s err0 database, including all other data, text, pictures, sound, graphics, logos, marks, symbols, video, media, or content, in electronic form input or collected through the err0 Services by or from Customer, including without limitation by Customer’s Users. “err0 Services" means the err0 Data, err0 software-as-a service services, and related applications and services provided under Provider’s or any successor brand, that are ordered by Customer under an Order Form. Users shall have access to err0 Services solely via the Internet, and Customer shall not receive or download any software code. “Malicious Code” means viruses, worms, time bombs, Trojan horses, cancelbots, corrupted files, and other harmful or malicious code, files, scripts, agents, or programs. “Order Forms” means the ordering documents for err0 Services hereunder that are entered into between Provider or any of its Affiliates and Customer from time to time, including amendments and addenda thereto. “Records” means business records pertaining to a Customer, which include at a minimum (unless otherwise stated in an Order Form), Customer company name, address, website and telephone number; and business records pertaining to an individual, which include at a minimum (unless otherwise stated in an Order Form), first name, last name, title, business address, business website, business email address, and business telephone number. “Users” means individuals who are authorized by Customer to use the err0 Services, and, if an err0 Service is provided on a per-User basis, for whom subscriptions to the err0 Service have been purchased. Users may include but are not limited to employees and owners of Customer, and third parties (such as consultants, contractors and agents) using the err0 Services exclusively for Customer’s benefit.
Services
2.1. Provision of err0 Services . Provider shall make the err0 Services available to Customer pursuant to this Agreement and the applicable Order Forms. Customer agrees that its purchases hereunder are neither contingent on the delivery of any fixture functionality or features, nor dependent on any oral or written public comments made by Provider regarding future functionality or features. 2.2. User Subscriptions. Where an Order Form specifies a number of Users, then unless otherwise stated therein, (i) the err0 Services may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing User subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the err0 Services. 2.3. Provider Responsibilities. Provider shall: (i) use commercially reasonable efforts to make the online err0 Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Provider shall give at least a 8-hour notice via the err0 Services and which Provider shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Pacific time Friday to 3:00 a.m. Pacific time Monday), or (b) any unavailability caused by circumstances beyond Provider‘s reasonable control, including without limitation, acts of God, acts of government, war, riots, natural disasters, flood, fire, earthquakes, civil unrest, acts of terror, strikes, telecommunications failures, Internet service provider or hosting facilities failures or delays, or denial of service attacks; and (ii) provide the err0 Services only in accordance with applicable laws and government regulations, including without limitation those pertaining to privacy. 2.4. Responsibility for Application and Content Hosting. Provider shall provide for the hosting of the err0 Services at its own expense, provided that nothing herein shall be construed to require Provider to provide for, or bear any responsibility with respect to any telecommunications or computer network hardware required by Customer or any User to gain access from the Internet to the err0 Services. 2.5. Updates. Customer is obligated to accept all patches, bug fixes, updates, maintenance, and service packs (collectively, "Patches") necessary for the proper function and security of the err0 Services, as such Patches are generally released by Provider. Except for emergency or security related maintenance activities, Provider will coordinate with Customer the scheduling of application of Patches, where possible, based on Provider's next available standard maintenance window. 2.6. Customer Responsibilities. Customer shall (i) be responsible for compliance with this Agreement by its personnel and Users, (ii) use the err0 Services solely for its internal purposes, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the err0 Services, and notify Provider promptly of any such unauthorized access or use, and (iii) use the err0 Services only in accordance with applicable laws and government regulations (including without limitation those pertaining to unsolicited email). Customer shall not (a) make the err0 Services available to anyone other than Users, (b) sell, resell, rent or lease the err0 Services, (c) use the err0 Services to send any form of duplicative and unsolicited messages, or to harvest, collect, gather, or assemble information or data regarding other users without their consent, (d) use the err0 Services to store, transmit, or post infringing, libelous, defamatory, threatening, or otherwise unlawful or tortious material, or material harmful to minors, or store or transmit material in violation of third-party privacy or publicity rights, (e) use the err0 Services in connection with any individual credit, employment, or insurance decisions, or to create or contribute to a “Consumer Report" for purposes of the U.S. Fair Credit Reporting Act, (f) use the err0 Services to store or transmit Malicious Code, (g) interfere with or disrupt the integrity or performance of the online err0 Services or the data contained therein, or (h) attempt to gain unauthorized access to the err0 Services or their related systems or networks, or (i) interfere with another user’s use and enjoyment of the err0 Services. 2.7. Customer Data. Customer is responsible for retaining backup copies of all Customer Data, and for implementing its own disaster-recovery plan. Customer will use reasonable security precautions, in accordance with industry standards, in light of its use of the err0 Services. Customer shall have sole responsibility for the accuracy, quality, legality, reliability, and appropriateness of all Customer Data, and the means by which Customer Data was acquired. Except for pseudonymized patient identification numbers, Customer shall not provide any “special categories of personal data” or health care provider data to Provider, and shall not use err0 Services to process such data. For the purposes of this section, “special categories of personal data” shall have the meaning as set forth in the EU General Data Protection Regulation, such data is also known as “sensitive data” under other laws and regulations regarding the processing of Personal Data. 2.8. Limited Customer Data Use. Customer hereby grants Provider a limited, non-exclusive, and non-transferable (subject to Section 10.8 below) license to access, use, copy, reproduce, process, transmit, and display Customer Data submitted to the err0 Services by Customer Users, or provided by Customer to Provider for the limited purpose of providing the err0 Services and displaying the Customer Data to Users for the duration of this Agreement. Provider may also compile statistical and other information related to the performance, operation, and use of the err0 Services, in aggregated form from all Customers for security and operations management, to create statistical analyses, and for research and development purposes, and may make such data publicly available so long as it does not incorporate Customer Data or Confidential Information in a form that could serve to identify Customer or any individual User, and does not constitute “special categories of personal data.” 2.9. Customer Suspension . If any User: (a) violates this Agreement; (b) is using the err0 Service in a manner that Provider reasonably believes may cause a security risk, a disruption to others’ use of the err0 Services, or liability for Provider, Provider may, upon written notice to Customer specifying the non-compliance in reasonable detail: (i) suspend the account of such User; and (ii) require the Customer to remove the non-compliant Customer Data from the err0 Services immediately. If Customer fails to do so, Provider may, at its own option, delete the non-compliant Customer Data from the err0 Services or terminate access to such Customer Data. 2.10. Temporary Suspension. Provider may temporarily suspend Customer’s passwords, account, and access to or use of the err0 Services if in Provider's reasonable judgment, the err0 Services, or any component thereof, are about to suffer a significant threat to security or functionality. Provider will provide advance notice of any such suspension in Provider's reasonable discretion based on the nature of the circumstances giving rise to the suspension. Provider will use reasonable efforts to re-establish the affected err0 Services promptly after Provider determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured; however, during any suspension period, Provider will make available to Customer such Customer Data as existing; on the date of suspension. Provider may terminate the err0 Services if any of the foregoing causes of suspension is not cured within thirty (30) days after Provider's initial notice thereof. Any suspension or termination by Provider under this paragraph shall not excuse Customer’s obligation to make payment(s) under this Agreement. 2.11. Customer Audit . Provider may audit Customer’s use of the err0 Services, through use of software tools, or otherwise, to assess whether Customer’s use of the err0 Services is in accordance with this Agreement. Customer agrees to cooperate with Provider's audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Customer’s normal business operations. Customer agrees to pay within thirty (30) days of written notification any fees applicable to excess use of the err0 Services. If Customer does not pay, Provider can terminate or suspend the err0 Services. Customer agrees Provider shall not be responsible for any of Customer’s costs incurred in cooperating with the audit. 2.12. Customer Affiliates. Customer Affiliates may purchase User subscriptions in their own capacity by executing Order Forms hereunder. By entering into an Order Form hereunder, such Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. 2.13. Customer Compliance. Customer remains solely responsible for all legal and regulatory compliance in connection with Customer’s use of the err0 Services, and must notify Provider of any technical requirements that result from such regulatory requirements prior to entering into this Agreement.
Fees and Payments
3.1. Fees. Customer shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on err0 Services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of User subscriptions or Records purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term. 3.2. Invoicing and Payment. Fees will be invoiced in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, fees are due net-10 days from the invoice date; for the first term, fees are due net-10 days, and prior to start using the err0 Services. Customer is responsible for providing complete and accurate billing and contact information to Provider, and notifying Provider of any changes to such information. 3.3. Overdue Charges. if any amounts invoiced hereunder are not received by Provider by the due date, then at Provider’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) Provider may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment" section above. 3.4. Suspension of err0 Services. If any charge owing by Customer is 15 days or more overdue, Provider may, without limiting its other rights and remedies, suspend err0 Services until such amounts are paid in full, provided Provider has given Customer 5 or more days’ prior notice that its account is overdue in accordance with the “Notices” section below. 3.5. Payment Disputes. Provider shall not exercise its rights under the “Overdue Charges” or “Suspension of Service” section above if the applicable charges are subject to a reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute. 3.6. Taxes. Unless otherwise stated, Provider's fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Provider has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Provider with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Provider is solely responsible for taxes assessable against it based on its income, property, and employees.
Proprietary Rights
4.1. Reservation of Rights in err0 Services. Subject to the limited rights expressly granted hereunder, Provider reserves all ownership, rights, title, and interest in and to the err0 Services, including all related intellectual property rights and derivative works thereof. No rights are granted to Customer hereunder other than as expressly set forth herein. 4.2. Restrictions. Customer will not use the err0 Services for any purpose beyond the scope of rights granted under this Agreement. Customer shall not (i) permit any third party to access or use the err0 Services, except as permitted herein or in an Order Form, (ii) create derivative works based on the online err0 Services except as permitted herein, (iii) copy, frame, or mirror the online err0 Services, other than copying or framing on Customer's own intranets or otherwise for its own internal business purposes, (iv) decompile, disassemble,reverse engineer, or otherwise attempt to obtain or perceive the source code from which any software component of the err0 Services are compiled or interpreted, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such code, (v) systematically access the err0 Services using “bots” or “spiders”, (vi) use the err0 Services in any time-sharing or services bureau arrangement, or (vii) access the err0 Services in order to (a) build a competitive data-related commercial product or service, or (b) copy any features, functions, or graphics of the err0 Services. For clarity, nothing in this paragraph shall prevent Customer from copying, reformatting, or transmitting err0 Data acquired by Customer hereunder, subject to the remaining terms of this Agreement. 4.3. Unauthorized Access. Customer will take reasonable steps to prevent unauthorized access to the err0 Services, including without limitation by protecting its passwords and other log-in information. Customer will notify Provider immediately of any known or suspected unauthorized use of the err0 Services or breach of its security and will use best efforts to stop said breach. Customer shall be responsible for all changes to and/or deletions of err0 Data. 4.4. Compliance with Laws. In its use of the err0 Services, Customer will comply with all applicable laws, statues, regulations, and rules, including without limitation the EU General Data Protection Regulation, other laws governing privacy, the protection of personal data, personally identifiable information, and laws applicable to the protection of err0 Data. 4.5. Suggestions. Customer hereby grants Provider a royalty-free, worldwide, transferrable, assignable, non- exclusive, irrevocable, perpetual license to use and incorporate into the err0 Services any suggestions, enhancement requests, modifications, improvements, recommendations, or other feedback provided by Customer, including Users, relating to the err0 Services (but excluding Customer’s Confidential Information), collectively defined as “Feedback.” Provider may exploit the Feedback without compensating or crediting the Customer or User in question, and such Feedback shall not be considered Confidential Information subject to Article 5 below. 4.6. Federal Government End Use Provisions. Provider provides the err0 Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the err0 Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data - Commercial Items) and DFAR 227.7202- 3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Provider to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement. 4.7. Privacy Policy. The Provider privacy policy applies only to the err0 Services and does not apply to any third- party website or service linked to the err0 Services or recommended or referred to through the err0 Services. The terms of this Agreement will govern in the event of any conflict between this Agreement and any Provider privacy policy posted online, which Provider may revise at any time by posting a new version online, which will become effective on the date it is posted. 4.8. Risk of Exposure - Accuracy . Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the err0 Services, Customer assumes such risks. Provider offers no representation, warranty, or guarantee that err0 Data will not be exposed or disclosed through errors or the actions of third parties. Provider will have no responsibility or liability for the accuracy of data uploaded to the err0 Services by Customer, including without limitation err0 Data and any other data uploaded by Users.
Confidentiality
5.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party”) to the other party (“Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Provider shall include the err0 Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. 5.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Parry for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates‘ employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. 5.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
Warranties, Exclusive Remedies, and Disclaimers
6.1. Provider Warranties. Provider warrants that (i) it has validly entered into this Agreement and has the legal power to do so, (ii) it has the necessary rights, titles, or licenses to provide the err0 Services, (iii) the functionality of the err0 Services will not be materially decreased during a subscription term, and (iv) it will not transmit Malicious Code to Customer (provided Provider will not be liable for transmitting to Customer Malicious Code earlier transmitted by Customer to Provider). For any breach of either such warranty, Customer’s exclusive remedy shall be as provided in the “Termination for Cause” and “Refund or Payment upon Termination” sections below. 6.2. Customer’s Warranties. Customer warrants that (i) it has validly entered into this Agreement and has the legal power to do so, (ii) it has the necessary rights, titles, or licenses to use the err0 Services and to submit to Provider any Records or other err0 Data (including portions thereof) that Customer elects to submit, (iii) it will not submit to Provider any Records or other err0 Data that are false, inaccurate, incomplete, or outdated, (iv) it will not submit to Provider any Records or other err0 Data that contain personal data, personal information, or non-business-related information, including without limitation home addresses, Social Security Numbers, credit card numbers, mobile telephone numbers, or any other personal information that identifies, relates to, describes, or can be associated with a particular individual, and (iv) it will not transmit Malicious Code to the err0 Services. 6.3. Service Disclaimer. PROVIDER DOES NOT GUARANTEE THAT: (A) THE ERR0 SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT PROVIDER WILL CORRECT ALL ERR0 SERVICES ERRORS, (B) THE ERR0 SERVICES WILL OPERATE IN COMBINATION WITH CUSTOMER’S CONTENT, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS, OR DATA NOT PROVIDED BY PROVIDER, AND (C) THE ERR0 SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, SPECIFICATIONS, OR EXPECTATIONS. CUSTOMERS ACKNOWLEDGES THAT PROVIDER DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. PROVIDER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. PROVIDER IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION, OR SECURITY OF THE ERR0 SERVICES THAT ARISE FROM CUSTOMER’S CONTENT OR THIRD-PARTY CONTENT. PROVIDER DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS, OR USEFULNESS OF THIRD-PARTY CONTENT, AND DISCLAIMS ALL LIABILITIES ARISING FROM OR RELATED TO THIRD-PARTY CONTENT. 6.4. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. PROVIDER DOES NOT WARRANT THE COMPREHENSIVENESS, CORRECTNESS, OR ACCURACY OF err0 DATA OR THAT THE err0 SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. 6.5. Non-err0 Services. Provider does not provide any warranty or support under this Agreement for any products or services other than err0 Services. 6.6. Non-GA err0 Services. From time to time, Provider may give Customer the opportunity to use, at no charge, err0 products or services that are not generally available to Provider customers (“Non-GA err0 Services”). Customer may elect to use non-GA err0 Services in Customer’s sole discretion. Any Non-GA err0 Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, or by a description of similar import. Non-GA err0 Services are provided “AS IS," exclusive of any warranty or support, and may contain bugs or errors. Non-GA err0 Services are provided for evaluation and testing purposes and are not intended for production use, may never be made generally available, and may be discontinued at any time.
Mutual Indemnification
7.1. Indemnification by Provider. Provider shall defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the err0 Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a "Claim Against Customer"), and shall indemnify Customer for any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a court-approved settlement of, a Claim Against Customer; provided that Customer (a) promptly gives Provider written notice of the Claim Against Customer, (b) gives Provider sole control of the defense and settlement of the Claim Against Customer (provided that Provider may not settle or defend any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) provides to Provider all reasonable assistance, at Provider’ expense. In the event of a Claim Against Customer, or if Provider reasonably believes the err0 Services may infringe or misappropriate, Provider may in its discretion and at no cost to Customer (i) modify the err0 Services so that they no longer infringe or misappropriate, without breaching Provider’s warranties under “Provider Warranties” above, (ii) obtain a license for Customer‘s continued use of the err0 Services in accordance with this Agreement, or (iii) terminate Customer’s right to use such err0 Services upon 10 days‘ written notice and refund Customer any prepaid fees covering the remainder of the applicable err0 Service term after the effective date of termination. If a court orders Customer to cease using part or all of the err0 Services in connection with a Claim Against Customer, Provider shall take the actions described in subpart (i) or (ii) of the preceding sentence, or if Provider cannot accomplish (i) or (ii) in a commercially reasonable manner, Provider shall take the actions described in subpart (iii) of the preceding sentence, all at no cost to Customer. 7.2. Indemnification by Customer. Customer shall defend Provider against any claim, demand, suit, or proceeding made or brought against Provider by a third party alleging that Customer's use of the err0 Services in breach of this Agreement infringes or misappropriates the intellectual property rights of a third party, orPage: 8 of 10 violates applicable law, including without limitation any applicable law relating to unsolicited email (a “Claim Against Provider"), and shall indemnify Provider for any damages, attorney fees and costs finally awarded against Provider as a result of, or for any amounts paid by Provider under a court-approved settlement of, a Claim Against Provider; provided that Provider (a) promptly gives Customer written notice of the Claim Against Provider, (b) gives Customer sole control of the defense and settlement of the Claim Against Provider (provided that Customer may not settle or defend any Claim Against Provider unless it unconditionally releases Provider of all liability), and (c) provides to Customer all reasonable assistance, at Customer’s expense. 7.3. Exclusive Remedy. This “Mutual Indemnification" section 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.
Limitation of Liability
8.1. Limitation of Liability. NEITHER PARTY'S LIABILITY ARISING OUT OF OR RELATED TO ANY SINGLE INCIDENT IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE FOREGOING SHALL NOT LIMIT CUSTOMERS PAYMENT OBLIGATIONS UNDER THE "FEES AND PAYMENT" SECTION ABOVE. 8.2. Exclusion of Consequential and Related Damages. EXCEPT FOR CLAIMS ARISING FROM EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Term and Termination
9.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all Order Forms under this Agreement have expired or been terminated. 9.2. Term of Subscriptions. Subscriptions under this Agreement commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term shall be the same as that during the immediately prior term unless Provider has given Customer written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. 9.3. Termination for Cause. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy, or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. 9.4. Refund or Payment upon Termination. Upon any termination for cause by Customer, Provider shall refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Provider, Customer shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Provider for the period prior to the effective date of termination. 9.5. Return of err0 Data. Upon termination or expiration of any err0 Service subscription hereunder, Provider shall promptly provide Customer with a backup of the err0 Data in CSV format, and then delete or destroy all copies of err0 Data in its systems, or otherwise in its possession or control, that Customer created pursuant to such terminated or expired subscription. Upon written request by Customer, Provider shall provide written documentation to Customer evidencing any deletion required under this paragraph. 9.6. Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights,” “Confidentiality," “Warranties and Disclaimers,” “Mutual Indemnification," “Limitation of Liability,” “Refund or Payment upon Termination,” “Return of err0 Data,” “Surviving Provisions” and “General Provisions" shall survive any termination or expiration of this Agreement.
General Provisions
10.1. Export Compliance. The err0 Services, other Provider technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each of Provider and Customer represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use err0 Services in violation of any U.S. law or regulation, nor access or use the err0 Services in, or export such err0 Services to, a U.S.-embargoed country (including Iran, North Korea, Sudan, or Syria) or in violation of any U.S. export law or regulation. 10.2. Customer Export Compliance. Customer agrees to comply with all export laws and regulations of the United States and any other relevant local export laws and regulations applicable to the err0 Services. Customer agrees that no data, information, software programs, or materials resulting from err0 Services (or a direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws, including, without limitation, for nuclear, chemical, or biological weapons proliferation, or development of missile technology. 10.3. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. 10.4. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. 10.5. Notices. Except as otherwise specified in this Agreement, all notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii), except for notices of termination or an indefinable claim (“Legal Notices"), the first business day after sending by email. Notices to Provider shall be addressed to the attention of its CEO. Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer, and Legal Notices to Customer shall also be addressed to Customer's signatory of this Agreement or any person designated beneath the signature area below. All other notices to Customer shall be addressed to the relevant Service system administrator designated by Customer. 10.6. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. 10.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. 10.8. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. ln the event of such a termination, Provider shall refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. 10.9. Force Majeure. Each Party shall be excused performance of its obligations under or pursuant to this Agreement if and to the extent that its performance is delayed, hindered, or prevented by any circumstances beyond its reasonable control including (but not limited to) acts of God, acts of government, war, riots, natural disasters, flood, fire, earthquakes, civil unrest, acts of terror, strikes, telecommunications failures, Internet service provider or hosting facilities failures or delays, or denial of service attacks. Either Party may terminate this Agreement upon written notice to the other Party if the force majeure event continues for more than thirty (30) days. 10.10. Governing Law. This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. 10.11. Arbitration - Venue. The parties agree first to attempt to resolve all disputes related to this Agreement in amicable terms through good faith negotiations. The parties agree that all disputes related to this Agreement not resolved amicably will be submitted to final and binding arbitration in San Francisco, California before a single arbitrator administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. Notwithstanding the foregoing, a party will be entitled to injunctive relief from a court of competent jurisdiction to prevent or remedy any breach of the other party’s confidentiality obligations. 10.12. Entire Agreement - Modification. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. Without limiting the foregoing, this Agreement supersedes the terms of any online Master Subscription Agreement for err0 Services electronically accepted by Customer. Provider may modify this Terms of Use at any time by providing ten (10) days’ prior written notice to you by email or by posting such revised Terms of Use online. Your continued use of the err0 Services constitutes your binding acceptance of these Terms of Use, including any modifications that Provider makes. If you send Provider written notice of your objection to the Terms of Use within ten (10) days of that revised agreement being emailed or posted, Provider may elect to continue offering you the err0 Services under the old terms of the Terms of Use, or Provider may terminate this Agreement by providing you ten (10) days’ prior written notice. In that case, the terms of the old Terms of Use will apply until termination. You are responsible for regularly reviewing this Terms of Use Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. 10.13. Counterparts. This Agreement may be executed electronically or in counterparts.