Terms Of Service (TOS)
PLEASE
READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE POWER
ACCELERATE SERVICE
OFFERED BY POWER ACCELERATE BV (“POWER ACCELERATE” OR “COMPANY”). BY MUTUALLY
EXECUTING ONE OR MORE ORDER FORMS WITH COMPANY WHICH REFERENCE THESE TERMS
(EACH, AN “ORDER FORM”) OR BY ACCESSING OR USING THE POWER ACCELERATE SERVICE
IN ANY MANNER, YOU (“YOU” OR “CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS
(TOGETHER WITH ALL ORDER FORMS (THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER
TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS
AGREEMENT; IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION
OR ENTITY, REFERENCES TO “CUSTOMER” AND “YOU” IN THIS AGREEMENT, REFER TO THAT
ORGANIZATION OR ENTITY. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY
NOT USE OR ACCESS THE POWER ACCELERATE SERVICE IN ANY MANNER.
1. DEFINITIONS
“Affiliate(s)” means, with respect to a party, any
entity which directly or indirectly Controls, is Controlled by, or is under
common Control with such party where Control means direct or indirect ownership
of more than fifty percent (50%) of the voting interests of the subject entity.
“Customer Data” means all electronic data or information
submitted to the Power Accelerate Service by Customer or submitted on behalf of
Customer by a Third-Party Service.
“Customer Equipment” means Customer’s and its Affiliates’
computer hardware, software and network infrastructure used to access the Power
Accelerate Service.
“Documentation” means the published specifications of the Power
Accelerate Service, as may be updated or amended from time to time, as
determined and provided by Power Accelerate to Customer.
“Entitlement” means the specific use limitations with
respect to Customer’s access to and use of the Power Accelerate Service as
specified in the corresponding Order, such as but not limited to: Seats and
usage restrictions.
“Order(s)” means a valid purchase, invoice or other ordering document
specifying the Services to be provided under this Agreement, entered into
between Customer (or a Partner on Customer’s behalf) and Power Accelerate or
any of their Affiliates, including any addenda and supplements thereto. By
entering into an Order hereunder, an Affiliate agrees to be bound by the terms
of this Agreement as if it were an original party hereto.
“Power
Accelerate
Service” means
the Power Accelerate online, cloud-based feature flag management solution made
available to its customer on a subscription basis, as further described in the
corresponding Order and Documentation.
“Fees” mean the fees payable to Power Accelerate for the
Services, as outlined in the invoice. “Credit” means a license granted by
Power Accelerate for a single app to be migrated.
“Services” means the products and services that are provided
by Power Accelerate and ordered by Customer hereunder, services purchased by
Customer on Power Accelerate’s online purchasing portal; or services provided
to Customer free of charge (as applicable) under a free trial.
“Sensitive Data” means any data that constitutes sensitive
personal data or special category data or like terms under applicable data
privacy laws, intellectual property, proprietary business models, and any data
which may be subject to the Gramm-Leach-Bliley Act (GLBA), the Payment Card
Industry Data Security Standards (PCI Data Security Standards), or similar
laws, government-issued identification numbers, account security information,
individual financial account information, credit/debit/gift or other payment
card information, account passwords, individual credit and income information.
“Term” as it relates to an Order means the applicable term
described in each Order, and as it relates to this Agreement, is as defined in
Section 10.1 below.
“Third-Party Service(s)” means any online applications,
integrations, offline software products or code, or systems not developed by Power
Accelerate that the Customer may choose to enable to connect with the Power
Accelerate Service.
“User(s)” means Customer’s and its Affiliates and their
respective employees, agents, contractors, service providers or consultants who
access or use the Power Accelerate Service as authorized by Customer by the
provision of a Seat.
2. POWER
ACCELERATE
RESPONSIBILIITES
2.1 SUBSCRIPTION TO THE POWER
ACCELERATE
SERVICE: Power
Accelerate shall, upon Customer’s purchase of a subscription to the Power
Accelerate Service hereunder, make the Power Accelerate Service available to
Customer pursuant to this Agreement and the applicable Order during the
subscription Term, and grants to Customer a limited, non-sublicensable,
non-exclusive, non-transferable (except as expressly permitted in Section 12.7
(Assignment)) right during the Term to allow its Users to access and use the
Service in accordance with the Documentation, solely for Customer’s internal
business purposes. Power Accelerate shall provide to Customer the corresponding
level of support and meet service level agreement as agreed in the applicable Order (free
support tier by default. The Support process and service Levels are described at
the following URL: https://poweraccelerate.com/servicelevelagreement/.
2.2
PROTECTION OF CUSTOMER DATA: Power Accelerate will maintain appropriate
administrative, physical, and technical safeguards for protection of the
security, confidentiality and integrity of Customer Data, as described in the
Security Program Addendum found at the following URL: https://poweraccelerate.com/spa/. Those safeguards will include, but will not be
limited to, measures designed to prevent unauthorized access to or disclosure
of Customer Data (other than by Customer or Users). Power Accelerate will
provide the Power Accelerate Service in accordance with the Security Program
Addendum and this Agreement.
2.3
PROTECTION OF PERSONAL DATA: Any processing of Customer Data that constitutes
personal data (as defined by applicable laws) is also governed by the Power
Accelerate Data Processing Addendum (“DPA”), in the form made available at the Power
Accelerate website at the following URL: https://poweraccelerate.com/dpa/, unless otherwise executed by the parties.
3. CUSTOMER RESPONSIBILITIES
3.1
USE OF THE SERVICES. Customer will:
(a)
be responsible for obtaining and maintaining any Customer Equipment and any
ancillary services needed to connect to, access or otherwise use the Power
Accelerate Service, including any Third Party Services;
(b)
be responsible for configuring the Power Accelerate Service, including
but not limited to determining what Customer and other Data is extracted, collected, stored, used, displayed, exported and/or migrated based on the attributes or similar
features in the Power Accelerate Service;
(c)
be responsible for Users’ compliance with this Agreement;
(d)
be responsible for the accuracy, quality and legality of Customer and other Data, the means by which Customer
acquired Customer and other Data, Customer’s use of Customer and other Data with the Power Accelerate Services,
and the interoperation of any Third-Party Applications with which Customer uses
the Power Accelerate Service;
(e)
ensure that Customer and other Data does not include any Sensitive
Data;
(f)
use commercially reasonable efforts to prevent unauthorized access to or use of
Power Accelerate Services, and notify Power Accelerate promptly of any such
unauthorized access or use;
(g)
use the Power Accelerate Service and Documentation only in accordance with this
Agreement, the applicable Order, Documentation, the Acceptable Use Policy at
the following URL: https://poweraccelerate.com/uap/ and applicable laws and government
regulations; and
(h)
comply with terms of service of any Third-Party Services with which Customer
uses the Power Accelerate Service.
3.2
USAGE LIMITS.
Services are subject to usage limits specified in Order and Documentation,
including the number of Seats and credits. If Customer exceeds a
contractual usage limit, Power Accelerate may work with Customer to seek to
reduce Customer’s usage so that it conforms to that limit. If, despite Power
Accelerate’s efforts, Customer is unable or
unwilling to abide by a contractual usage limit, Customer will execute an Order
for additional quantities of the applicable Services promptly upon Power
Accelerate’s request, and/or pay any invoice for excess usage in accordance
with Section 5 (Invoicing and Payment) below.
3.3
USAGE RESTRICTIONS. Customer will not:
(a)
resell, sublicense, lease, time-share or otherwise make the Power Accelerate Service
available to any third party;
(b)
use the Power Accelerate Service to intentionally send or store infringing or
unlawful material or material containing software viruses, worms, Trojan horses
or other harmful computer code, files, scripts, agents or program;
(c)
modify, copy or create derivative works of the Power Accelerate Service;
(d)
reverse engineer the Power Accelerate Service;
(e)
access the Power Accelerate Service for the purpose of building a competitive
product or service;
(f)
use the Power Accelerate Service solely for the purpose of monitoring the
availability, performance or functionality, or for any benchmarking or
competitive purposes intended to be disclosed to a third party;
(g)
provide access to the Power Accelerate Service to a known competitor of Power
Accelerate;
(h)
permit direct or indirect access to or use of the Power Accelerate Service in a
way that circumvents a contractual usage limit or facilitates access to the
functionality of the Power Accelerate Service by a User without an assigned
Seat or Credits;
(i)
temporarily reassign Seats to various Users on an ongoing basis as a means of
providing Seat sharing among multiple Users. For the avoidance of doubt, this
does not prohibit Customer from permanently reassigning a Seat during the term
in instances where a User may no longer need access to the Power Accelerate Services,
for example, in instances of personnel changes or use by temporary contractors
or agents.
3.4
THIRD PARTY SERVICES. Customer may choose to install or enable
Third-Party Services for use with the Power Accelerate Service. Any use by
Customer of any Third-Party Services is solely the responsibility of Customer
and the applicable Third-Party Services provider. Customer acknowledges that,
if enabled by Customer, providers of such Third-Party Services may have access
to Customer or Other Data. To the extent Customer authorizes the access or transmission of
Customer or Other Data through a Third-Party Service, such Third-Party Service terms will
govern, and Power Accelerate will not be responsible for, any use, disclosure,
modification or deletion of such Customer or Other Data by Third Party Services or
for any act or omission on the part of such third-party provider or its
service.
3.5
TEMPORARY SUSPENSION. Power Accelerate may suspend Customer’s
right to access or use any portion or all of the Power Accelerate Service
immediately upon notice to you if we determine: (a) your use of the Power
Accelerate Service (i) poses a security risk to the Power Accelerate Service or
any third party, (ii) could adversely impact our systems, the Power Accelerate Service
or the systems or content of any other customer, (iii) could subject Power
Accelerate, our affiliates, or any third party to liability, or (iv) could be
fraudulent. Additionally, Power Accelerate may suspend Customer’s right to
access or use any portion or all of the Power Accelerate Services upon fifteen
(15) days’ notice if Customer is in breach of either its obligations under this
Section 3, or more than 30 days delinquent in its payment obligations under
Section 5 below.
3.6
EFFECT OF SUSPENSION. If we suspend your right to access or use any
portion or all of the Power Accelerate Service: (a) you remain responsible for
all fees and charges you incur during the period of suspension; and (b) you
will not be entitled to any service credits under the Service Level Agreements
for any period of suspension.
4. INTELLECTUAL PROPERTY,
CUSTOMER DATA AND INFORMATION SECURITY
4.1
OWNERSHIP. Power
Accelerate retains all right, title and interest to all intellectual property
rights in and to the Power Accelerate Service, the SDK, the Documentation, and
all underlying technology, software, processes, algorithms, user interfaces,
know-how and all modifications and derivative works thereof. Customer
acknowledges and agrees that the Power Accelerate Service is a
software-as-a-service offering, and that Customer is not entitled to a copy of
the underlying software or code.
4.2
FEEDBACK.
Customer hereby grant’s Power Accelerate a fully paid, royalty-free, perpetual,
irrevocable, worldwide, non-exclusive, and fully sublicensable right and
license to use, reproduce, perform, display, distribute, adapt, modify, create
derivative works of, and otherwise commercially exploit any suggestion,
feedback or ideas Customer submits to Power Accelerate, and Customer
acknowledges and agrees that Power Accelerate assumes no obligation of
confidentiality or nondisclosure, express or implied with respect to such
feedback or ideas submitted to Power Accelerate.
4.3
CUSTOMER DATA. Customer
hereby grants to Power Accelerate and its Affiliates a worldwide,
non-exclusive, limited-term license to access, use, process, copy,
distribution, perform, export, and display Customer Data only as necessary (a)
for Power Accelerate to provide, maintain, and update the Service; (b) to
prevent or address service, security, support, or technical issues; (c) as
required by law and subject to the compelled disclosure requirements of Section
8.3 (Compelled Disclosure) below; and (d) as expressly permitted in writing by
Customer. Customer is solely responsible for Customer Data, and Customer
represents and warrants that it has secured all rights in and to Customer Data
from its Authorized Users or third parties as may be necessary to grant this
license.
4.4
ANONYMIZED DATA. Customer agrees that Power Accelerate may collect, use, and
disclose anonymized or aggregated data (“Anonymized Data”) for its business
purposes, including industry analysis, benchmarking, and analytics. All data
collected, used, and disclosed will be in aggregate and deidentified form only
and will not identify Customer, its Authorized Users, or Customer Data. The
rights to Anonymized Data shall survive termination of this Agreement.
5. INVOICING AND FEES
5.1
DIRECT PURCHASES. For Orders purchased directly with Power Accelerate, Customer
shall pay all fees specified (the “Fees”). Each Order with Power Accelerate shall
be signed by both parties or issued by Power Accelerate and acknowledged by
Customer via the issuance of a purchase order that incorporates the Order by
reference only when finally accepted by Power Accelerate. Except as otherwise
specified herein or in an Order: (a) Fees are based on actual credit
purchase; (b)
payment obligations are non-cancellable, and (c) all Fees paid are
non-refundable. Customer is responsible for ensuring that it has provided Power
Accelerate with the most current billing information. In the event Customer
issues purchase orders in its normal course of business and furnishes Power
Accelerate with a purchase order number in advance of the invoice date, Power
Accelerate will make every reasonable effort to reference such PO number on the
invoice Invoices will be sent via email to the email indicated in the Billing
Information section of each Order Form. Unless otherwise specified in the
Order, payment for any fees will be due within thirty (30) days of the date of
invoice.
5.1.1
TAXES. Power Accelerate Fees do not include any Taxes, and Customer is
responsible for paying all Taxes arising from its purchases hereunder,
excluding Taxes based on Power Accelerate’s net income, employees, or property.
“Taxes” as used herein means any direct or indirect local, state, federal or
foreign value-added, sales, use or withholding taxes. If Power Accelerate has
the legal obligation to pay or collect Taxes for which Customer is responsible,
the appropriate amount of such Taxes shall be invoiced to and paid by Customer,
unless Customer provides a valid tax exemption certificate authorized by the
appropriate taxing authority in advance. The failure to include Taxes on an
invoice does not relieve the Customer of its obligation to pay such Taxes as
required in the applicable taxing jurisdiction. All amounts payable to Power
Accelerate under this Agreement shall be without set-off and without deduction
of any taxes, levies, imposts, charges, withholdings and/or duties of any
nature which may be levied or imposed, including without limitation, value
added tax, customs duty and withholding tax. Further, Customer agrees that in
the case where Taxes are required to be deducted from payments to Power
Accelerate, such as but not limited to VAT, GST or similar withholding
obligations, Customer will increase the Fees payable to Power Accelerate so
that Power Accelerate receives from Customer (without any liability for Taxes)
the amount equal to the total Fees Power Accelerate would have received but for
such withholding or deductions (the “True Up”).
5.1.2
OVERDUE CHARGES. If any invoiced amount not subject to good faith dispute
is not received by Power Accelerate by the due date, then without limiting Power
Accelerate’s rights or remedies Customer agrees that Power
Accelerate may impose interest at the rate of 1.5% of the outstanding balance
per month or the maximum rate permitted by law, whichever is lower.
5.2
PURCHASES THROUGH A PARTNER. For any Services purchased by Customer
through a Partner, the pricing and payment terms are established through the
order or agreement entered into by and between Customer and the Partner and all
payments will be made directly to Partner. If a Partner is entitled to
terminate or suspend any Services purchased by Customer due to non-payment and
notifies Power Accelerate, Power Accelerate may suspend or terminate the
Services identified by the Partner. Subsequently, if Partner notifies Power
Accelerate that Customer is entitled to reinstatement of any Services purchased
by Customer pursuant to the Order, and Customer is otherwise in compliance with
the terms of this SaaS Agreement, Power Accelerate shall reinstate the Services
as soon as reasonably practicable. Power Accelerate shall not be liable to
Customer or to any third party for any liabilities, claims, or expenses arising
from or relating to any suspension or termination of Services in accordance
with this Section 5.2.
5.3
FUTURE FUNCTIONALITY. Customer agrees that its subscription or
other purchases are not contingent on the delivery of any future functionality
or features, or dependent on any oral or written public comments made by Power
Accelerate regarding future functionality or features.
6. REPRESENTATIONS AND WARRANTIES
6.1
GENERAL. Each
party represents and warrants that it has all necessary right, title and
authority to enter into and perform under this Agreement. Customer
warrants that it has the rights to provide and use any and all Customer and Other
Data in
accordance with the terms of the Agreement. Each party warrants that it will
conform to all applicable laws in its performance hereunder.
6.2
PERFORMANCE WARRANTY. Power Accelerate warrants that the operation
of the Power Accelerate Service will substantially conform in all material
respects to the Documentation during the Term. Customer will provide prompt
written notice of any non-conformity.
6.3
REMEDIES. As
Customer’s sole and exclusive remedy, and Power Accelerate’s entire liability for any breach
of the foregoing warranty, Power Accelerate will remedy the nonconformance, or
if Power Accelerate is unable to do so, terminate the applicable Order(s) and
refund any unused, prepaid Fees with respect to the applicable Order calculated
on a pro-rata basis.
6.4
DISCLAIMER OF WARRANTIES. CUSTOMER AGREES THAT POWER
ACCELERATE IS NOT
RESPONSIBLE FOR THE PERFORMANCE OR INTEGRATION OF ANY THIRD-PARTY SERVICES AND
THAT SUCH PERFORMANCE IS GOVERNED BY THE CUSTOMER’S TERMS OF USE FOR SUCH
THIRD-PARTY SERVICES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY NOR
ITS SUPPLIERS MAKES ANY WARRANTIES OF ANY KIND, WHETHER IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. POWER ACCELERATE DOES NOT WARRANT THE OPERATION
OF THE POWER ACCELERATE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
7. INDEMNIFICATION
7.1
INDEMNIFICAITON BY CUSTOMER. Customer shall defend, indemnify and hold Power
Accelerate and its Affiliates (collectively, “Power Accelerate BV”) harmless against any loss,
damage or costs (including reasonable attorneys’ fees) incurred in connection
with Claims made or brought against Power Accelerate and any member of Power
Accelerate BV, by a
third party either (a) alleging that the Customer or Other
Data created and stored by Customer in the Power
Accelerate Service or otherwise provided to Power Accelerate in connection with
the Agreement violates any applicable law or regulation; or (ii) arising
out of Customer’s obligations under Section 3 (Customer
Responsibilities).
7.2
INDEMNIFICATION PROCEDURE. Power Accelerate agrees to (a) promptly give
written notice of the Claim to Customer (provided that the obligations under
this Section 7 shall not be reduced by the failure to give such notice except
to the extent the Customer is materially prejudiced by such failure); (b) give
the Customer sole control of the defence and settlement of the Claim (provided
that Customer may not settle any Claim unless it unconditionally releases Power
Accelerate of all liability and obligation); and (c) provide to Customer, at
Customer’s cost, all reasonable assistance.
8. CONFIDENTIALITY
8.1
DEFINITION. As
used herein, “Confidential Information” means all non-public
information of a party (“Disclosing Party”) disclosed to the other
party (“Receiving Party”), whether orally or in writing, that is
designated as confidential, including the terms and conditions of this
Agreement, Power Accelerate’s technology and technical
information, product designs, and business processes. Confidential Information
shall not include any information that: (i) is or becomes generally known to
the public without breach of any obligation owed to Disclosing Party; (ii) was
known to Receiving Party prior to its disclosure by Disclosing Party without
breach of any confidentiality obligation owed to Disclosing Party; (iii) was
independently developed by Receiving Party without breach of any
confidentiality obligation owed to Disclosing Party or access to or reliance on
Disclosing Party’s Confidential Information; or (iv) is received from a third
party without breach of any confidentiality obligation owed to Disclosing
Party.
8.2
OBLIGATIONS.
Receiving Party shall not disclose or use any Confidential Information of
Disclosing Party for any purpose outside the scope of this Agreement, except as
allowed by the terms of this Agreement or with Disclosing Party’s prior written
consent. Receiving Party shall protect the confidentiality of Disclosing
Party’s Confidential Information in the same manner that it protects the
confidentiality of its own Confidential Information of like kind (but in no
event using less than reasonable care). Power Accelerate represents and
warrants that it will maintain the confidentiality of Customer and Other
Data and,
except as required by applicable law, will not disclose Customer or Other Data to any third party for any
purpose other than to provide the Power Accelerate Service. However, Power
Accelerate may compile aggregate data related to Customer’ s usage of the Power
Accelerate Service and may use and/or disclose such aggregate data to third
parties, to the extent that Customer is not identified as the source of such
data and as long as the data does not reveal the identity, whether directly or
indirectly, of any individual, or specific data entered by or relating to any
individual. Receiving Party shall promptly notify Disclosing Party if it becomes
aware of any actual or reasonably suspected breach of confidentiality of
Disclosing Party’s Confidential Information.
8.3
COMPELLED DISCLOSURE. If Receiving Party is compelled by law to
disclose Confidential Information of Disclosing Party, it shall provide
Disclosing Party with (a) prior written notice of such compelled disclosure (to
the extent legally permitted) and (b) reasonable assistance in contesting the
disclosure, at Disclosing Party’s option and cost. Any actual disclosure shall
be limited to the minimum amount of information necessary to comply with the
disclosure demand as advised by legal counsel.
8.4
REMEDIES. If
Receiving Party discloses (or threatens to disclose) any Confidential
Information of Disclosing Party in breach of confidentiality protections
hereunder, Disclosing Party shall have the right, in addition to any other
remedies available to it, to seek injunctive relief to enjoin such acts, it
being acknowledged by the parties that any other available remedies are
inadequate.
8.5
EFFECT OF TERMINATION. Upon any termination of this Agreement, the
Receiving Party shall continue to maintain the confidentiality of the
Disclosing Party’s Confidential Information and, upon request and to the extent
practicable, return to the Disclosing Party or destroy (at the Disclosing
Party’s election) all materials containing such Confidential Information.
9. LIMITATION OF LIABILITY
9.1
GENERAL. EXCEPT
FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND CLAIMS ARISING FROM A PARTY’S
GROSS NEGLIGENCE OR WILFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY’S
AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR
UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID OR PAYABLE TO POWER
ACCELERATE DURING
THE (12) TWELVE MONTHS PRIOR TO THE DATE OF THE CLAIM.
9.2 TO THE MAXIMUM EXTENT PERMITTED
BY LAW, IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS OR SUPPLIERS HAVE ANY
LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY SPECIAL,
INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN
CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. TERM AND TERMINATION.
10.1
TERM. This
Agreement commences on the Effective Date and unless terminated as otherwise
provided herein, shall continue until all Orders entered into under this
Agreement have expired or been terminated. The Term applicable to each Order
commences upon the effective date of such Order.
10.2
TERMINATION. A
party may terminate this Agreement for cause: (i) upon thirty (30) days written
notice to the other party of a material breach of this Agreement if such breach
remains uncured at the expiration of such period; or (ii) immediately upon
notice for an incurable material breach; (iii) immediately upon notice if the
other party becomes the subject of a bankruptcy, insolvency, receivership,
liquidation, assignment for the benefit of creditors or similar proceeding.
10.3
SURVIVAL. The
parties’ rights and obligations under Sections 1, 4, 5, 7.4, 8-12, and 13 shall
survive termination of this Agreement.
10.4
EFFECT OF TERMINATION. Upon the effective date of termination of
this Agreement Customer’s authorization to access and use the Power Accelerate Service
will cease. Thirty (30) days following the termination of this Agreement Power
Accelerate will have no obligation to maintain any Customer Data and will not
retain copies or records of Customer Data in its system or otherwise.
10.5
REFUND OR PAYMENT UPON TERMINATION. If this Agreement is terminated by Customer
in accordance with 11.2 above, Power Accelerate will refund Customer (or
Partner if purchase was made through a Partner) any prepaid fees covering the
remainder of the term of all Orders after the effective date of termination reduced
with any costs made by Power Accelerate to deliver products or services to date. If this Agreement is terminated
by Power Accelerate in accordance with the 11.2 above, Customer will pay any
unpaid fees covering the remainder of the Term of all Orders to the extent
permitted by applicable law. In no event will termination relieve Customer of
its obligation to pay any fees payable to Power Accelerate for the period prior
to the effective date of termination.
11. TRIAL USE / PROOF
OF TECHNOLOGY
11.1 If Customer obtains a
free trial or proof of technology from Power Accelerate, Power Accelerate
will make the applicable Services available to Customer on a trial basis free of charge with
limited functionality until the earlier of (a) the end of the free trial
period for which Customer registered to use the applicable Service(s), or (b)
the start date of any Order for such Services; or (c) termination by Power
Accelerate in its sole discretion.
11.2 THE FREE SERVICES ARE
PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND POWER
ACCELERATE SHALL
HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO
THE SERVICES DURING THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS
NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE POWER
ACCELERATE’S LIABILITY
WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $100.00. WITHOUT LIMITING THE
FOREGOING, POWER ACCELERATE DOES NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A)
CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL WILL MEET CUSTOMER’S
REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL WILL BE
UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. NOTWITHSTANDING ANYTHING TO
THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION ABOVE, CUSTOMER SHALL BE
FULLY LIABLE UNDER THIS AGREEMENT TO POWER ACCELERATE AND ITS AFFILIATES FOR ANY
DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL
PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S
INDEMNIFICATION OBLIGATIONS HEREUNDER.
12. GENERAL
12.1
INDEPENDENT CONTRACTORS. The parties are independent contractors, and
no partnership, franchise, joint venture, agency, fiduciary or employment
relationship between the parties is created hereby. There are no third-party
beneficiaries to this Agreement.
12.2
NOTICE REQUIREMENTS. Notices shall be in writing and delivered as indicated below.
Notice may be delivered by either (a) nationally recognized overnight delivery
service or certified or registered Mail, or (b) electronic mail. Notices are
effective upon receipt.
If
to Power Accelerate BV: Emiel Van Hammestraat
12, 2570 Duffel– info@poweraccelerate.com
If
to Customer: To the mailing address specified in Customer’s Order Form.
12.3
ENTIRE AGREEMENT. Power Accelerate reserves the right, in its sole discretion, to
modify or replace this Agreement at any time. To the extent of any conflict
between this Agreement and any Order Form, the Order Form shall prevail. In the
event of a conflict between this Agreement and any other Exhibit or document
referenced herein, this Agreement shall prevail unless expressly stated
otherwise. Notwithstanding any language to the contrary therein, no terms
stated in a purchase order or similar ordering document (other than a Statement
of Work or other mutually executed order document expressly incorporated
herein) shall be incorporated into this Agreement, and all such terms shall be
void. This Agreement represents the entire agreement of the parties, and
supersedes all prior or contemporaneous agreements, proposals or
representations, written or oral, concerning its subject matter. If there is
any conflict between the terms of this Agreement and any Order or similar
ordering document with a Partner, the terms of this SaaS Agreement shall
control. Where Power Accelerate is required to “click through” or
otherwise accept any online terms to register as Customer’s vendor, to provide
the Services to Customer, or to enable Customer’s receipt of the Services (as a
condition to its provision, vendor registration or receipt of Services), the
terms are not binding and shall not be deemed to modify this Agreement.
12.4
LOGO USAGE. Customer
hereby authorizes Power Accelerate to list Customer’s name and logo
on Power Accelerate’s website and in related marketing materials to
identify Customer as a Power Accelerate customer, provide that no
Customer Confidential Information is disclosed. Additionally, Customer agrees
to participate in customer reference and related programs, to the extent so
authorized in writing by Customer (email shall suffice).
12.5
NO WAIVER. No
failure or delay in exercising any right hereunder shall constitute a waiver of
such right. Except as otherwise provided, remedies provided herein are in
addition to, and not exclusive of, any other remedies of a party at law or in
equity. If any provision of this Agreement is held by a court of competent
jurisdiction to be contrary to law, such 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
shall remain in effect.
12.6
FORCE MAJEURE. Neither
party shall be liable to the other for any delay or failure to perform
hereunder (excluding payment obligations) due to a natural disaster, pandemics,
civil unrest, actions or decrees of governmental bodies or communications
failure which (i) hinders, delays or prevents a party in performing any of its
obligations, (ii) is beyond the control of, and without the fault or negligence
of, such party, or (iii) by the exercise of reasonable diligence such party is
unable to prevent or provide against (“Force Majeure Event”).
12.7
ASSIGNMENT. Neither
party may assign or transfer any of its rights or obligations hereunder,
whether by operation of law or otherwise, without the prior written consent of
the other (not to be unreasonably withheld). Notwithstanding the foregoing
either party may, upon notice to the other party, assign or transfer this
Agreement in its entirety (including all Orders hereunder), in connection with
a merger, reorganization, or sale of all or substantially all assets or equity
with respect to this Agreement. Any attempted assignment in breach of this
Section 12.7 shall be void. This Agreement shall bind and inure to the benefit
of the parties, their respective successors and permitted assigns.
12.8
EXPORT. Each
party agrees to comply with all applicable regulations of the Belgium Department of Commerce and with
the Belgium Export Administration Act, as amended from time to time, and with all
applicable laws and regulations of other jurisdictions with respect to the
provision and use of the Power Accelerate Service.
12.9
GOVERNING LAW. This
Agreement shall be governed exclusively by the internal laws of
Belgium, without
regard to its conflicts of laws rules. Any dispute arising hereunder shall be
brought exclusively in the courts located in Belgium. The United Nations Convention
on Contracts for the International Sale of Goods shall not apply.