These General Terms and Conditions are between Factor Technology, Inc. (“Factor”)and the Customer identified in the Order that references this Agreement. These General Terms and Conditions and the applicable Order will govern the use and provision of any Services purchased by Customer as described in any Order. If Customer does not agree to follow and be bound by the terms and conditions of the Order and these General Terms andConditions, Customer may not place an order for, or access or use, any Services.
1.1 “Access Credentials” means login information, including usernames and passwords, through which Users access the FactorService.
1.2 “Agreement” means these General Terms and Conditions and all Orders.
1.3 “Customer Data” means the data, content, and other information: (a) uploaded or submitted into the Factor Service by or on behalf of Customer, and (b) theCustomer-specific output that is generated by Customer’s use of the FactorService.
1.4 “Confidential Information” means all non-public written or oral information disclosed by or on behalf of a party (the “Disclosing Party”) to the other (the“Recipient”)that has been identified as “confidential” or that by the nature of the information or the circumstances surrounding disclosure should reasonably be understood to be confidential, except for any information that: (a) becomes generally available to the public through no fault of the Recipient; (b) is provided to the Recipient by a third party free of any confidentiality duties or obligations; (c) was already known to the Recipient free of any confidentiality duties or obligations at the time of disclosure; or(d) the Recipient can prove, by clear and convincing evidence, was independently developed by employees or contractors of the Recipient who had no access to the Confidential Information.
1.5 “Documentation” means any documentation, user manuals, help files, videos, and other materials provided to Customer by Factor that describe the features, functionality, or operation of the Factor Service.
1.6 “Factor Service” means Factor’sproprietary software-as-a-service platform identified in the Order and madeavailable to Customer through a web interface. Referencesto the Factor Service include the Documentation.
1.7 “Order” means the document signed byan authorized representative of each party that references this Agreement andidentifies the specific Service(s) to bemade available to, and the fees to be paid by, Customer.
1.8 “Professional Services” means any professional services provided by Factor to Customer as described in an Order, including any implementation, training, and support and maintenance services.
1.9 “Services” means the Factor Service and any applicable Professional Services, in each case, as set forth in the applicable Order(s).
1.10 “User” means each Customer employee or contractor who is authorized by Customer to access and use the FactorService for and on behalf of Customer. The number of Users authorized to access the Factor Service may be set forth in the applicable Order.
2. Services, Restrictions, and Security
2.1 Access Rights and Credentials. Subject toCustomer’s compliance with the terms and conditions of this Agreement, Factor grants to Customer anon-exclusive, non-transferable, non-sublicenseable, revocable right to allow the number of Users set forth in the applicable Order to access and use the FactorService solely for Customer’s internal business purposes and in accordance with the Documentation. Customer will safeguard, and ensure that all Users safeguard, the Access Credentials.Customer will be responsible for all acts and omissions of Users. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Factor immediately if it learns of any unauthorized use of any Access Credentials or any other known or suspected breach of security relating to the Factor Service.
2.2 Provision of Factor Service. Factor shall provide for the hosting of the Factor Service on servers operated and maintained by or for Factor, provided that nothing herein shall be construed to require Factor to provide for, or bear any responsibility with respect to, any telecommunications, computer hardware, software, or Internet connectivity required by Customer or any User to access theFactor Service from the Internet. Customer acknowledges that Factor may continually develop, deliver, and provide toCustomer on-going innovation to the Factor Service in the form of new features, functionality, and efficiencies. Subject to Customer’s payment of the Fees (as defined below) set forth in the Order, Factor shall provide new releases and updates to the Factor Service that it generally provides to its other customers, provided that Factor shall not be obligated to provide to Customer any new release or update to the Factor Service, or any module thereof, for which Factor generally charges a separate fee, unless otherwise agreed to by the parties in the Order.
2.3 Professional Services Generally. Factor will use commercially reasonable efforts to provide the Professional Services related to Customer’s use of the Factor Service as indicated on an Order. Excluding those agreed between the parties in the Order, Factor will have no obligation to provide or perform any services for or on behalf of Customer.
2.4 Restrictions. Customer shall not, and shall not permit any other person to, directly or indirectly: (a) act as a reseller or distributor of, or a service bureau for, the Factor Service or otherwise use, exploit, make available, or encumber the Factor Service to or for the benefit of any third party; (b) use or demonstrate the Factor Service in any way that is in competition with Factor; (c) reverse engineer, disassemble, or decompile the Factor Service or attempt to derive the source code or underlying ideas or algorithms of any part of the Factor Service (except to the limited extent applicable laws specifically prohibit such restriction); (d) remove any notice of proprietary rights from any of the Services; (e) copy, modify, translate, or otherwise create derivative works of any part of the Services; (f) use the Factor Service in a manner that interferes or attempts to interfere with the proper working of the Factor Service or any activities conducted therewith, including bypassing or attempting to bypass any security settings or measures used to prevent or restrict access to the Factor Service; (g) use manual or automated software, devices, robots, spiders, or other processes to “crawl” or “spider” or to retrieve, index, “scrape,” “data mine,” or in any way gather information, content, or other materials from the Factor Service in an unauthorized manner or reproduce or circumvent the navigational structure or presentation of the Factor Service; (h) use or allow the transmission, transfer, export, re-export, or other transfer of any software, technology or information forming a part of the Factor Service in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; or (i) use the Factor Service to share or store any (x) materials containing viruses or other harmful or malicious code, (y) materials to which Customer does not have sufficient rights to share or store, or (z) any other materials prohibited by applicable laws or regulations.
2.5 Security. Factor will maintain industry standard administrative, technical, and physical safeguards designed to protect the security, confidentiality, and integrity of the Factor Service and the CustomerData stored in the Factor Service. In the event that Factor has reason to believe that there has been any unauthorized access to, or loss of, CustomerData from its systems, Factor will promptly notify Customer according toFactor’s policies and protocols aligned with the data type and nature of the event.Customer will have access to the Customer Data and is solely responsible for the accuracy, quality, and legality of the Customer Data and any changes to or deletions of Customer Data made by Customer or Users. Customer will have the ability to export Customer Data out of the Factor Service and is encouraged to make its own back-ups of the Customer Data.
3. Proprietary Rights
3.1 Factor Service. Except for the limited access rights granted toCustomer in this Agreement, Factor retains and reserves all right, title, and interest, including all intellectual property rights, in and to the Services and all modifications and derivative works thereof. Factor in its sole discretion may utilize all comments and suggestions, whether written or oral, furnished by Customer to Factor, including such comments and suggestions of Users, in connection with its access to and use of the Services (all such comments and suggestions, collectively, the “Feedback”). Customer hereby grants Factor, on behalf of itself and its Users, a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to use and incorporate the Feedback into the Factor Service.
3.2 CustomerData Ownership and License. As between the parties, Customer owns all right, title, and interest in and to theCustomer Data (subject to the license granted herein to Factor). Customer hereby grants to Factor a nonexclusive license: (a) to process and use, and have its service providers process and use, the Customer Data in order to provide the Services toCustomer; (b) disclose theCustomer Data to third parties as authorized by Customer; and (c)collect, analyze, and use the Customer Data in accordance with Section 3.3.
3.3 DataAnalyses. Customer acknowledges and agrees that Factor may useCustomer Data to: (a) compile statistical and other information related to the performance, operation, and use of the Factor Service; and (b) create statistical analyses, improve the Factor Service, and for research and development purposes (collectively, “Data Analyses”). During and after the Term, Factor may make DataAnalyses publicly available and use Data Analyses for any of its lawful business purposes; provided, however, that Data Analyses will not incorporate CustomerData in a form that could serve to identify Customer or any individual. Data Analyses do not constitute CustomerData, and Factor will retain all right, title, and interest, including all intellectual property rights, in and to Data Analyses.
4.1 Use andDisclosure of Confidential Information. Each Recipient agrees that: (a)it will not disclose the Confidential Information of the Disclosing Party to anyone except its employees and contractors who have a need to know and who are subject to confidentiality obligations no less stringent than those set forth herein (each a “Representative”); and (b) it will not use or reproduce theConfidential Information disclosed by the Disclosing Party for any purpose other than exercising its rights and performing its obligations set forth in this Agreement. Each Recipient will be liable for the acts and omissions of its Representatives with respect to theDisclosing Party’s Confidential Information.
4.2 Exception. Notwithstanding Section 4.1, each party may disclose Confidential Information to the limited extent required by a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order will first have given prompt written notice to the other party and will have reasonably cooperated with theDisclosing Party in any of its efforts to obtain a protective order.
5. Invoicing, Fees, and Taxes
5.1 Invoicing. All fees related to Customer’s subscription access to the Factor Service (“Subscription Fees”) and all fees forProfessional Services (“Professional Services Fees”) will be invoiced by Factor in accordance with the Order. The Subscription Fees,Professional Services Fees and all other fees set forth in the Order will be referred to herein as “Fees.”
5.2 Fees. Customer will pay the Fees to Factor in accordance with the payment schedule set forth in the applicable Order. Except as expressly set forth in this Agreement, all Fees are non-refundable. Unless otherwise specified in any Order, all invoices issued by Factor will be due and payable thirty (30) days after receipt by Customer. All Fees will be paid in U.S. dollars and exclude all applicable sales, use, and other taxes. Any portion of the Fees that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. The Fees exclude, and Customer will be solely responsible for, all sales, use, excise, withholding and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity in connection with the Services (excluding taxes based solely on Factor’s income).
5.3 Expenses. If pre-approved by Customer in an Order, Customer shall reimburse Factor for reasonable out-of-pocket expenses (including travel and living) incurred in performing its obligations for specific Services under such Order. All costs and expenses incurred by Customer in connection with the Agreement are the sole responsibility of Customer.
6. Warranties; Disclaimers;Limitations on liability
6.1 General Representations. Each party represents and warrants that: (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (b) that the execution and performance of this Agreement will not conflict with or violate any provision of any law or regulation having applicability to such party; and (c) that thisAgreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.
6.2 CustomerData. Customer represents and warrants that it has obtained and will maintain throughout the Term, all rights, licenses, consents, and permissions for Customer to make available the Customer Data to Factor and for Factor to use the Customer Data as contemplated herein, and that noCustomer data will infringe, misappropriate, or otherwise violate the rights of any third party.
6.3 FactorService. Factor represents and warrants that the Factor Service will operate in accordance with theDocumentation in all material respects. The foregoing warranty will not apply to performance issues of the Factor Application (a) caused by factors outside of Factor’s reasonable control; (b) that result from any actions or inactions of Customer, any Users, or any third parties; or (c) that result fromCustomer’s operating environment or equipment. Provided that Customer notifies Factor in writing of any breach of the foregoing warranty during the Term, as Customer’s sole and exclusive remedy for any breach of the foregoing warranty, (i) Factor will provide the technical support services set forth in the applicable Order to correct such breach, or(ii) if Factor is unable to correct such breach within a commercially reasonable amount of time, Customer may terminate this Agreement and Factor will refund to Customer the pro-rated portion of any prepaid Fees attributable to any unused Services and this Agreement shall thereafter terminate.
6.4 WarrantyDisclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ORFROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE. FACTOR DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE SERVICES WILL BE ACCURATE, WITHOUT INTERRUPTION, OR ERROR-FREE.
6.5 Disclaimer of Indirect Damages. IN NO EVENT WILL FACTOR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, OR FOR THE PROCUREMENT OF SUBSTITUTE SERVICES, EVEN IFSUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT FACTOR HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
6.6 Limitations on Liability. FACTOR’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY FACTOR UNDER THE APPLICABLE ORDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST DATE ON WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION ON LIABILITY WILL NOT APPLY TO FACTOR’S INDEMNIFICATION OBLIGATIONS.
6.7 Exceptions. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITY, IN SUCH JURISDICTIONS THE LIABILITY OF FACTOR WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE PROVISIONS OF THIS SECTION 6 WILL APPLY without regard to whether other provisions of this Agreement have been breached, any limited remedy herein is held to fail of its essential purpose, OR THE FORM OF THE CLAIM OR CAUSE OF ACTION, WHETHER IN CONTRACT, WARRANTY, STATUTE,TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE).
7.1 Factor Indemnity. Factor will indemnify, defend and hold Customer, its directors, officers, and employees (each a “Customer Indemnified Party”) harmless from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs (collectively “Losses”) arising out of any third party claim to the extent based upon an allegation that the Factor Service infringes or misappropriates such third party’s intellectual property rights.
7.2 Exclusions. Section 7.1 will not apply if the alleged claim arises, in whole or in part, from: (a) a use or modification of the Factor Service by Customer or any User in breach of thisAgreement, (b) a combination, operation, or use of the Factor Service with other software, hardware or technology not provided or recommended by Factor, if the claim would not have arisen but for the combination, operation or use, or (c) the Customer Data (any of the foregoing circumstances under clauses (a), (b) or (c) will be collectively referred to as a “Customer Indemnity Responsibility”).
7.3 Customer Indemnity. Customer will indemnify, defend and hold harmless Factor, its directors, officers, and employees (each a“FactorIndemnified Party”) from and against any and all Losses arising out of any third party claim based on any Customer Indemnity Responsibility.
7.4 Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, (b) reasonably cooperating and assisting in such defense and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent.
7.5 Infringement. If the Factor Service is,or in Factor’s opinion, is likely to become, the subject of anyinfringement-related claim, then Factor will, at its expense and in itsdiscretion: (a) procure for Customer the right to continue using the FactorService; (b) replace or modify the infringing technology or material so thathe Factor Service becomes non-infringing and remains materially functionallyequivalent; or (c) terminate the Order pursuant to which the Factor Service is providedand provide Customer with a refund for thepro-rated portion of any prepaid Fees attributable to any unused Services.
7.6 THE PROVISIONS OF THIS SECTION 7 STATE FACTOR’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE SERVICES INFRINGE OR MISAPPROPRIATE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT.
8. Term and Termination
8.1 Term. ThisAgreement will commence on the effective date of the initial Order and, unless earlier terminated in accordance with the terms of this Agreement, will remain in effect so long as an Order remains in effect (the “Term”). The initial term of each Order will commence on the date set forth in such Order and, unless earlier terminated in accordance with the terms of this Agreement, will remain in effect for the “Initial Term” specified therein (the “Order Form Initial Term”). If a “Renewal Term” is specified in an Order, upon the expiration of the applicable Order Initial Term, such Order will automatically renew for successive periods equal to the length of the “RenewalTerm” specified in such Order (each, an “Order Form Renewal Term”) unless either party provides written notice of its intent not to renew at least sixty(60) days prior to the expiration of the Order Form Initial Term or the then-current Order Form Renewal Term.
8.2 Termination. Either party may terminate this Agreement or any Order, at its discretion, effective immediatelyupon written notice to the other if the other party materially breaches anyprovision of this Agreement and does not substantially cure the breach withinthirty (30) days after receiving written notice.
8.3 Suspensionof Service(s). Atany time during the Term, Factor may, immediately upon notice to Customer,suspend access to the Factor Service for any of the following reasons: (a) athreat to the technical security or technical integrity of the Factor Service,as reasonably determined by Factor; (b) any amount due under this Agreement is not received by Factor within ten (10) daysafter Factor provides Customer with notice of such overdue payment; or (c)breach or violation by Customer of any laws, rules, or regulations with respectto its use of the Factor Service.
8.4 Effects ofTermination. Upon termination or expirationof this Agreement for any reason: (a) any amounts owed to Factor prior to suchtermination or expiration and all completed but unpaid Professional Servicesfees will be immediately due and payable; (b) all access rights to the FactorService will immediately cease to exist and neither Customer nor any User willattempt to access or use the Factor Service; (c) each party shall promptly return,or at the other party’s request destroy, all Confidential Information of theother party; and (d) Customer will have a period of thirty (30) days to requestfrom Factor an export of Customer Data from the Factor Service in a formatmutually agreed by the parties, and after such thirty (30)-day period, Factorwill retain and destroy all Customer Data in accordance with its data retentionand destruction policies and all applicable laws. Sections 1, 2.4, 3 through 5, 6.4 through6.7, 7, 8.4, and 9 will survive any expiration or termination ofthis Agreement.
9.1 Assignment. This Agreement may not be assigned by either party without theprior written consent of the other party; provided, however, that either party mayassign or transfer this Agreement in its entirety inconnection with a sale of all or substantially all of its assets. Any attemptedassignment or delegation in violation of this Section will be null, void, andof no effect. This Agreement will inure to the benefit of the parties and theirrespective successors and permitted assigns.
9.2 Publicity. During the Term and thereafter, Factor mayrefer to Customer as a Factor customer, orally and in writing on Factor’swebsite and promotion and marketing materials.
9.3 Notices. All notices,consents, and approvals under this Agreement must be delivered in writing bycourier, by electronic facsimile (fax), or by certified or registered mail(postage prepaid and return receipt requested) to the other party at theaddress set forth in the Order and will be effective upon receipt. Either party may change its address by givingnotice of the new address to the other party.
9.4 GoverningLaw; Disputes. This Agreement will be governed by the laws of the Commonwealthof Massachusetts, without reference to any conflicts of law principles thatwould require the application of the laws of a different jurisdiction. Anydispute, controversy or claim arising out of or relating to this Agreement,will be made exclusively in the state or federal courts located in Boston,Massachusetts and both parties submit to the jurisdiction and venue of suchcourts.
9.5 Remedies. Customeracknowledges that any actual or threatened breach of Section 3.1 or Section 4.1will constitute immediate, irreparable harm to Factor for which monetarydamages would be an inadequate remedy, and that injunctive relief is anappropriate remedy for such breach.
9.6 Waivers. All waiversmust be in writing. Any waiver orfailure to enforce any provision of this Agreement on one occasion will not bedeemed a waiver of any other provision or of such provision on any otheroccasion.
9.7 Severability. If any provision ofthis Agreement is unenforceable, such provision will be changed and interpretedto accomplish the objectives of such provision to the greatest extent possibleunder applicable law and the remaining provisions will continue in full forceand effect.
9.8 No Third Party Beneficiaries. The parties acknowledge that the covenantsset forth in this Agreement are intended solely for thebenefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied,will confer upon any person or entity (including any User) other than theparties, their successors and permitted assigns, any legal or equitable rightwhatsoever to enforce any provision of this Agreement.
9.9 Construction. The parties negotiated this Agreement withthe opportunity to receive the aid of counsel and, accordingly, intend thisAgreement to be construed fairly, according to its terms, in plain English,without constructive presumptions against the drafting party. The headings ofSections of this Agreement are for convenience and are not to be used ininterpreting this Agreement. As used inthis Agreement, the word “including” means “including but not limited to.”
9.10 Force Majeure. Any delay in the performanceof any duties or obligations of either party (except the payment of money owed)will not be considered a breach of this Agreement if such delay is caused by anatural disaster, war, act of terror, pandemic, or any other event beyond the reasonablecontrol of such party. The affected party will use reasonable efforts, underthe circumstances, to notify the other party of the circumstances causing thedelay and to resume performance as soon as possible.
9.11 Entire Agreement. This Agreement constitutes the entireagreement between the parties regarding the subject hereof and supersedes allprior or contemporaneous agreements, understandings, and communication, whetherwritten or oral. This Agreement may beamended only by a written document signed by both parties.