Singlewire Master Terms and Conditions
These Master Terms and Conditions (together with all the exhibits and other attachments hereto, these “Terms“) are by and between Singlewire Software, LLC, a Wisconsin limited liability company (“Singlewire“) and the enterprise customer or other entity that receives the Services (the “Customer“). These Terms constitute a binding agreement between Singlewire and Customer (together, the “Parties” and, individually, each a “Party“).
These Terms govern Customer’s access to, use of and receipt of the Services and purchase of any Products. BY CLICKING A BOX INDICATING CUSTOMER’S ACCEPTANCE OF THESE TERMS OR EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS, CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THESE TERMS. IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF A CUSTOMER, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH CUSTOMER TO THESE TERMS. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THESE TERMS, CUSTOMER MUST NOT ACCEPT THESE TERMS AND MUST NOT ACCESS OR USE, OR ATTEMPT TO ACCESS OR USE, THE SERVICES OR PURCHASE, OR ATTEMPT TO PURCHASE, ANY PRODUCTS.
THE LICENSES AND RIGHTS GRANTED UNDER THESE TERMS ARE EXPRESSLY CONDITIONED UPON THESE TERMS WITHOUT MODIFICATION BY CUSTOMER. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM DELIVERED BY CUSTOMER OR ON CUSTOMER’S BEHALF IN ANY MANNER ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN BY SINGLEWIRE.
1. Defined Terms. For purposes of these Terms, the following capitalized terms shall have the meanings ascribed thereto. Other capitalized terms used in these Terms are defined in the context in which they are used and shall have the meanings there indicated.
(a) “Account” means a password-protected account assigned to a User that provides such User access to certain features and functionalities of the Services. As used in these Terms, the term Account refers to all Accounts created by Customer or on Customer’s behalf for use by Customer’s Personnel to access or use the Services on Customer’s behalf.
(b) “Account ID” means the username and password a User uses to access such User’s Account.
(c) “Administrator” means the individual authorized by Customer to manage Customer’s use of the Services, including, without limitation, running or viewing reports, managing User roles, activating/deactivating features, setting default values and performing other administrative functions available to such individual(s) through the Administrator Account.
(d) “Administrator Account” means the Account provided to Customer by Singlewire and assigned to the Administrator.
(e) “Affiliate” means any entity that controls, is controlled by, or is under common control with a Party, where “control” means the direct or indirect ownership of more than 50% of the voting securities or other ownership interests of such entity or Party.
(f) “Aggregated Data” means any Customer Data or any other data or information derived from a User’s use of the Services or necessary to provide the Services that is de-identified, or otherwise anonymized, and aggregated by or on behalf of Singlewire in a manner that complies with any requirements under applicable law relating to the nature and effect of such aggregation, de-identification or anonymization and, in all case, does not, as applicable, identify the source of the foregoing or any individual to whom the foregoing relates. For clarity, the term Aggregated Data includes, without limitation, data and information that is derived from a User’s use of the Services.
(g) “Agreement” means, with respect to a particular Service, these Terms, the applicable Order Form(s) and the applicable Service Schedule, if any.
(h) “Customer Data” means any data collected through, or otherwise generated by, Customer’s or Customer’s Personnel’s use of the Services or purchase of any Products. For clarity, Customer Data does not include any Feedback or Aggregated Data.
(i) “Customer’s Personnel” means Users and Customer’s officers, employees, contractors, consultants or agents.
(j) “Confidential Information” means any information prepared for or delivered to a Party (the “Receiving Party“) by the other Party or its representative (the “Disclosing Party“) (including information or data received by the Disclosing Party from a third party and to which the Disclosing Party has confidentiality obligations) that: (1) is marked or designated by the Disclosing Party as confidential or proprietary; (2) is disclosed orally or visually provided that such information is identified by the Disclosing Party at the time of disclosure as confidential or proprietary; or (3) is known to the Receiving Party, or should be known to a reasonable person given the contents and circumstances of the disclosure, as being treated as confidential or proprietary by the Disclosing Party, even if the Disclosing Party fails to take the actions specified in (1) or (2) with respect to such information.
(k) “Deliverable” means the output of the Professional Services, including, any works or other Intellectual Property created or otherwise provided by Singlewire to Customer in connection with Singlewire’s performance of the Professional Services.
(l) “Documentation” means all Singlewire user manuals, operating instructions and other documentation relating to the access to, use of or operation of the Services or Products, as generally made available by Singlewire to Customer and/or Users from time to time.
(m) “Feedback” means all ideas, advice, recommendations, proposals, suggestions, comments and other feedback Customer or Customer’s Personnel provide to Singlewire related to the Services or Products or any other services or products provided by Singlewire or its Affiliates.
(n) “Intellectual Property” means, to the extent that any of the following are recognized in any jurisdiction worldwide: (1) intellectual property and/or proprietary rights, whether registered or unregistered, including copyrights and patent rights (including applications for patent protection); (2) publicity rights, trade dress, registered or otherwise protected trademarks, trade names, service marks and protections from trademark dilution; (3) trade secrets, as defined in the Uniform Trade Secrets Act or its equivalent in applicable jurisdictions; and (4) proprietary products, services, know-how, techniques, business processes, configurations and business methods.
(o) “On Premise Software” means the on premise software licensed to Customer on a stand-alone basis pursuant to an applicable Agreement. For clarity, On Premise Software does not include any SaaS Software or software, mobile applications or other materials utilized by or provided by Singlewire in connection with any SaaS Offerings.
(p) “On Premise Software Offerings” means the On Premise Software and applicable Documentation provided or otherwise made available by Singlewire to Customer under an applicable Agreement.
(q) “Order Form” means an ordering document executed by Customer and, as applicable, Singlewire or a Reseller, in each case specifying, as applicable, the Service to be provided to Customer and/or setting out the quantity and type of Products purchased by Customer thereunder.
(r) “Personal Data” means information that identifies, relates to, describes or is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, to a specific person.
(s) “Product” means any Hardware or other tangible products Customer purchases from Singlewire or a Reseller or otherwise accepts from Singlewire pursuant to an Order Form.
(t) “Professional Services” means professional services, including, without limitation, software maintenance services and installation and consulting services Customer purchases from Singlewire or a Reseller or otherwise accepts from Singlewire pursuant to an Order Form.
(u) “Reseller” means an individual or company authorized by Singlewire to sell or otherwise provide Products or Services.
(v) “SaaS Offerings” means the software as-a-service offering(s) and related mobile applications Singlewire provides to Customer on a software-as-a-service basis pursuant to an applicable Agreement. As referred to herein and as applicable, the term SaaS Offerings includes all SaaS Software, Documentation and Websites utilized by Singlewire or otherwise made available to Customer in connection with the foregoing.
(w) “SaaS Software” means the software utilized by Singlewire to provide and operate the SaaS Offerings.
(x) “Service Schedule” means the additional terms and conditions applicable to a particular Service, available at https://www.singlewire.com/legal-terms.
(y) “Services” means the On Premise Software Offerings, SaaS Offerings and Professional Services Singlewire provides to Customer under or in connection with an applicable Agreement.
(z) “User” means each individual, including Customer and Customer’s Personnel, who Customer, in compliance with the applicable Agreement(s) authorizes to, as applicable, access, use or receive the Services.
(aa) “Websites” means the websites, including any and all sub-domains thereof and the features, functionalities, applications, browser extensions and other services available through the foregoing utilized by Singlewire to provide and operate the SaaS.
2. Products and Services General Terms.
(a) Order Forms. Customer may request Products or Services by submitting a written Order Form to, as applicable, Singlewire or a Reseller. Each such Order Form is subject to approval by Singlewire and must be subject to a valid Bid/Quote except as otherwise provided in these Terms. Singlewire may, before signing or otherwise approving an Order Form, reject such Order Form based on Product availability and Services capacity and Singlewire does not and cannot guarantee that Singlewire will sign or otherwise approve every Order Form submitted by Customer. For clarity and without limiting anything set forth herein, all Order Forms signed or otherwise approved by Singlewire are subject to these Terms and, where applicable, the applicable Service Schedule.
(b) Pricing Information. Subject to these Terms, pricing for Products and Services will be as established on bids/quotes issued by Singlewire in response to Customer’s or a Reseller’s request to receive Products or Services (a “Bid/Quote“), subject to any additional terms or conditions contained therein; provided, however, if Singlewire does not provide a Bid/Quote for a particular request, pricing shall be as established on the applicable Order Form signed or otherwise accepted by Singlewire.
(c) Additional Terms. Bids/Quotes expire thirty (30) days after provided by Singlewire unless another time period has been specified therein. Except with respect to unexpired Bids/Quotes and Order Forms previously signed or otherwise accepted by Singlewire, Singlewire reserves the right to make changes to the Product or Services, including, without limitation, the pricing therefor at any time. Customer acknowledges and agrees that no Singlewire employee or Reseller is authorized to make a fixed or firm Bid/Quote based on time or material on behalf of Singlewire that is not an electronic or written document manually signed by an officer of Singlewire that expressly states that the Bid/Quote is “firm” or “fixed.”
(d) Documentation License. Subject to Customer’s compliance with the terms of the applicable Agreement, Singlewire hereby grants Customer a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the term set forth in the applicable Agreement solely for Customer’s internal business purposes in connection with its access to and use of the applicable Products or Services.
(e) Commercial Software. As defined in FAR section 2.101, the On Premise Software, SaaS Software, Websites, and Documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely on the terms of the applicable Agreement(s) and will be prohibited except to the extent expressly permitted by the terms of the applicable Agreement(s).
(f) Equipment. Except as set forth in the applicable Agreement, Customer is solely responsible for obtaining and maintaining any equipment and ancillary services needed to, as applicable, install, connect to, access, or otherwise use any On Premise Software Offering or SaaS Offering, including mobile devices, modems, hardware, servers, software, operating systems, networks, web services and the like (collectively, “Equipment“). Customer shall also be responsible for maintaining the security of the Equipment and for all uses of the Equipment with or without Customer’s knowledge or consent.
3. On Premise Software Offerings.
(a) License Grant. Subject to Customers compliance with the terms of the applicable Agreement and except as otherwise expressly set forth in the applicable Agreement, Singlewire grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable license during the term identified in the applicable Agreement to install, operate and use the On Premise Software for Customer’s internal business purposes in accordance with the applicable Agreement and as described in the Documentation.
(b) Use Restrictions. Customer shall not use the On Premise Software Offerings for any purposes beyond the scope of the license granted in the applicable Agreement. Without limiting the foregoing and except as otherwise expressly set forth in the applicable Agreement, Customer shall not at any time, directly or indirectly: (1) use the On Premise Software Offerings for any purpose other than as permitted under the applicable Agreement and as described in the Documentation; (2) copy, modify or create derivative works of the On Premise Software Offerings, in whole or in part; (3) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the On Premise Software Offerings, in whole or in part; (4) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the On Premise Software, in whole or in part; (5) remove any proprietary notices from the On Premise Software Offerings, in whole or in part; or (6) use the On Premise Software Offerings, in whole or in part, for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(c) Delivery. Unless otherwise agreed to in writing, the On Premise Software shall be installed on Equipment owned or otherwise directly controlled by Customer. Singlewire will deliver the On Premise Software to Customer as described in and in accordance with the terms of the applicable Agreement.
(d) Customer Responsibilities. Customer is responsible and liable for all uses of the On Premise Software Offerings resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of the applicable Agreement(s). Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions Customer’s Personnel and users, and any act or omission by any of Customer’s Personnel or a User that would constitute a breach of the applicable Agreement if taken by Customer will be deemed a breach of the applicable Agreement by Customer. Customer shall take reasonable efforts to make all of Customer’s Personnel and Users aware of the provisions of the applicable Agreement(s) that are applicable to such Customer’s Personnel’s and Users’ use of the On Premise Software Offerings and shall cause such Customer’s Personnel and Users to comply with such provisions.
4. SaaS Offerings.
(a) General. Subject to the applicable Agreement, Singlewire will provide the applicable SaaS Offering(s) to Customer during the term identified in the applicable Agreement.
(b) Authorization for Access and Use. Subject to Customer’s compliance with the terms of the applicable Agreement, Singlewire grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable right to access and use the SaaS Offerings in accordance with the applicable Agreement and as described in the Documentation. For clarity, the foregoing shall solely include the rights to access and use the SaaS Offerings for Customer’s own internal business purposes unless otherwise expressly set forth in the applicable Agreement(s). Customer’s rights with respect to the SaaS Offerings shall terminate upon the expiration or earlier termination of the applicable Agreement.
(c) Accounts.
(1) Where applicable, subject to Customer’s compliance with the applicable Agreement, Singlewire will provide one (1) Administrator Account to Customer for use by Customer’s Administrator to manage Customer’s use of the applicable SaaS Offering(s), including creating individual Accounts to enable Users (subject to any User limits set forth in the applicable Agreement) to access and use such SaaS Offering(s).
(2) Each Account and Account ID, including any Administrator Account, is personal in nature and may only be used by the User assigned to the Account. Without limiting the foregoing, Customer shall not allow any access to Customer’s Accounts or Customer’s Account IDs by anyone other than Customer and Users.
(3) Customer agrees to change any Account ID (or close the applicable Account) immediately if such Account ID is lost, stolen or otherwise compromised and to immediately notify Singlewire of such an incident.
(4) Customer is fully responsible for all access to and use of the SaaS Offerings associated with Customer’s Accounts and Customer’s Account IDs (whether lawful or unlawful) and for any actions taken through Customer’s Accounts (or using Customer’s Account IDs).
(5) Customer agrees that all information provided in connection with establishing Customer’s Accounts: (1) will be true and complete; and (2) will be promptly updated and kept accurate and current.
(6) Neither Customer nor Users may: (1) select or use an Account ID of another person with the intent to impersonate that person; or (2) select or use an Account ID that Singlewire, in its sole discretion, deems offensive.
(7) Subject to any restrictions set forth herein, including restrictions on the disclosure of Confidential Information set forth herein, Customer authorizes Singlewire to access any Account, including any Customer Data contained therein, as necessary to administer, provide, operate or configure the SaaS Offerings.
(d) Restrictions. Customer shall not, and shall not permit others to: (1) access or use any SaaS Offering other than as set forth in the Documentation and the applicable Agreement; (2) copy any SaaS Offering or Documentation, except as expressly permitted in the applicable Agreement; (3) use any SaaS Offering in a service bureau or time sharing environment (including using any SaaS Offering to provide third parties a service consisting solely of the collection and entry of data and other information into any SaaS Offering); (4) modify, disassemble, reverse engineer, decompile, transfer or attempt to reconstruct or discover any source code or underlying idea, algorithms, file formats or programming interoperability interfaces of any SaaS Offering; (5) sell, assign, transfer, sublicense, lease, pledge, rent or otherwise share Customer’s rights under any applicable Agreement; (6) create any derivative works based upon any SaaS Offering; (7) modify, obscure or remove any product identification or proprietary notices on any SaaS Offering or any copies thereof; (8) except as specified in the applicable Agreement or Documentation, modify or incorporate the SaaS Offering into or with other software; (9) transmit or upload any software or materials that contain any viruses, worms, trojan horses, defects, time bombs or other items of a destructive nature through or in connection with Customer’s access to or use of any SaaS Offering; or (10) access or use any SaaS Offering in violation of any applicable law, regulation, or rule.
(e) Authorized Users. Customer may access and use the SaaS Offering(s) solely as permitted under the applicable Agreement(s) and as described in the Documentation. Without limiting anything set forth herein, any access to and use of the SaaS Offering(s) by Customer or on Customer’s behalf shall be solely by Customer and Users.
(f) Use of SaaS Offerings.
(1) Customer acknowledges and agrees that under no circumstances will Singlewire or any of its licensors or suppliers be responsible for any loss, damage or liability arising out of any mistakes or other errors made by Customer as a result of Customer’s access to or use of any SaaS Offering. Customer further agrees to maintain all security regarding Account IDs, passwords and connectivity with the SaaS Offering(s). If an Account ID is stolen or otherwise compromised and such theft or compromise is not due to the fault of Singlewire, Singlewire shall not be responsible for any ensuing unauthorized access to or use of the applicable SaaS Offering(s).
(2) Customer shall, at all times, be responsible for the actions of Customer’s Personnel in connection with Customer’s obligations under the applicable Agreement(s), including any access to or use of the SaaS Offering(s). Customer shall ensure Customer’s Personnel: (1) do not breach the terms of the applicable Agreement(s), including any restrictions set forth in the applicable Agreement(s) or the Documentation with respect to the access to or use of the applicable SaaS Offering(s); and (2) comply with all applicable laws in connection with the applicable Agreement(s), including access to and use of the applicable SaaS Offering(s). Customer acknowledges and agrees that any breach of the applicable Agreement(s) by Customer’s Personnel shall constitute Customer’s breach of the applicable Agreements.
(g) Changes to SaaS Offerings. Singlewire may, in its sole discretion, make any changes to any SaaS Offering that it deems necessary or useful to: (1) maintain or enhance the: (a) quality or delivery of Singlewire’s products or services to its customers; (b) market for Singlewire’s products or services; or (c) cost efficiency or performance of the SaaS Offering; or (2) comply with any applicable laws or regulations.
(h) Export Restrictions. Customer shall not remove or export from the United States or allow the export or re-export of any SaaS Offering or anything related thereto, or any direct product thereof, in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control or any other United States or foreign agency or authority.
(i) Suspension. Customer acknowledges and agrees that the SaaS Offerings may include technological means of determining Customer’s compliance with the applicable Agreement(s). Without limiting anything set forth herein, Singlewire may immediately suspend all or part of Customer’s or Users’ access to and use of any SaaS Offering (including access to and use of the applicable Account) if: (1) Singlewire reasonably determines that Customer’s or any User’s use of the SaaS Offering could adversely impact the SaaS Offering, a third party’s use of services Singlewire provides to such third party or the Singlewire network or servers used to provide the SaaS Offering; (2) there is suspected unauthorized third party access to or use of the SaaS Offering; (3) Singlewire reasonably believes that immediate suspension is required to comply with applicable laws; (4) Customer or one or more of Users is in breach of Sections 4(c), 4(d), 4(e) or 4(h) of these Terms or the Terms of Service; or (5) Singlewire receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Singlewire to do so. Singlewire will reinstate any SaaS Offering suspended pursuant to this Section 4(i) when Singlewire determines, in its sole discretion, the circumstances giving rise to the suspension have been resolved. Unless prohibited by applicable law and where reasonably possible, Singlewire will provide Customer with prior notice of any such suspension and the basis for any such suspension.
5. Products.
(a) Delivery. Singlewire will deliver all tangible Products EXW (“Ex Works” as defined under Incoterms 2020) at Singlewire’s facility or designated warehouse (the “Delivery Location“). The Parties acknowledge that tangible Products may be drop-shipped to Customer or a third party specified by Customer. Notwithstanding anything herein to the contrary, title to and all risk of loss and damage to tangible Products shall pass to Customer upon delivery of such Products by Singlewire or its designated agent to the carrier at the Delivery Location. Unless Customer provides shipping instructions, Singlewire is authorized to make shipping arrangements on Customer’s behalf. Customer shall be responsible for all costs and expenses associated with shipment of tangible Products after delivery by Singlewire.
(b) Title. Except for the rights granted under the applicable Agreement, all right, title and ownership, including, without limitation, all Intellectual Property rights, in and to the Products remain with Singlewire or the applicable licensor(s) of the same, regardless of the form or media in or on which they may exist.
(c) Warranties.
(1) When Singlewire is not the licensor or manufacturer of a Product, the only warranties offered by Singlewire are those of the licensor/manufacturer, not Singlewire, and Customer relies on the licensors/manufacturer’s descriptions and specifications only and not on any statements, specifications, photographs or other depictions representing the Product that may be provided or otherwise made available by Singlewire. When Singlewire is the licensor or manufacturer of a Product, the only warranties offered are those contained in the applicable Agreement and Customer is not relying on any warranties or representations in any descriptions, statements, specifications, photographs or other depictions representing the Product.
(2) Without limiting the foregoing, when Singlewire is the licensor or manufacturer of a Product, Singlewire warrants to Customer that such Product will be free from defects in materials or workmanship for one (1) year from the date of receipt of original retail purchase (the “Limited Product Warranty“). This Limited Product Warranty will apply only if Customer purchased or otherwise obtained the applicable Product from Singlewire or a Reseller pursuant to an Order Form signed or otherwise accepted by Singlewire. This Limited Product Warranty does not apply to any loss or damage caused by accidents, misuse, neglect, disassembly, alterations, servicing other than by Singlewire, water damage, extreme heat or other environmental conditions, if the Product’s serial number has been removed or replaced or other causes beyond Singlewire’s control. In order to obtain warranty service under the Limited Product Warranty, Customer must submit a valid claim to Singlewire, during the warranty period, by contacting Singlewire and obtaining a return materials authorization (“RMA“) number and returning the applicable Product to Singlewire within thirty (30) days of Customer’s receipt of the RMA number. Customer’s sole and exclusive remedy (and Singlewire’s entire liability) with respect to any defective Product covered by this Limited Product Warranty will be for Singlewire to either repair or replace such defective Product; no refunds will be issued. The repaired or replaced Product will continue to be subject to the Limited Product Warranty for the remaining time of the original warranty period. All returned Products for which Customer has received a replacement will become Singlewire’s property. THIS PARAGRAPH SETS FORTH SINGLEWIRE’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY DEFECTIVE PRODUCT COVERED BY THE LIMITED PRODUCT WARRANTY.
(d) Returns. Except as otherwise set forth in the applicable Agreement, including, without limitation, as set forth in these Terms, Customer may return any tangible Product for a refund within thirty (30) days of the shipment date, subject to the following exceptions and fees. Returned Products that conform to all requirements of the applicable Agreement are subject to a restocking fee equal to twenty-five percent (25%) of the purchase price for such Products. Except in the event of a shipping error, Customer is responsible for the cost of shipping returned Products back to Singlewire. Notwithstanding the foregoing, the following Products are non-returnable and non-refundable: (1) non-tangible Products; (2) any On Premise Software Offerings or SaaS Offerings, in whole or in part; (3) Products that have been unpackaged from their factory packaging or on which any factory packaging seal has been removed or broken; (4) Products that have been modified, physically damaged or defaced; (5) Products returned without their original retail packaging; and (6) Products provided via large volume orders with standard pricing discounts.
6. Professional Services
(a) Scope of Professional Services. Singlewire will perform the Professional Services, including providing all Deliverables, specified and in the quantities set forth in the applicable Agreement and, where applicable, subject to and in accordance with the applicable Service Schedule(s). All Professional Services shall be described and documented in one or more Order Forms unless otherwise expressly agreed to by the Parties in writing.
(b) Changes in Scope of Professional Services. Either Party may propose changes to the scope of the Professional Services to be provided pursuant to the applicable Agreement by delivering a written notification to the other Party describing the desired changes (“Change Request”). Upon delivery of a Change Request, the Parties shall negotiate in good faith any modifications necessary to the applicable Agreement, or any separate written agreement between the Parties concerning such Professional Services, including changes to the cost or time of delivery associated with the Change Request. Notwithstanding the foregoing, no Professional Services will be modified or changed until the Parties agree upon a Change Request and execute a written change order or other amendment to the applicable Agreement or any separate written agreement between the Parties concerning such Professional Services.
(c) Performance Schedule; Delays. In the event any delay in the performance of the Professional Services occur as a result of Customer’s failure to cooperate or ultimately perform Customer’s obligations applicable to such Professional Services, Singlewire shall not incur any liability for Singlewire’s non-performance in the delivery of such Professional Services as a result of such delay.
7. Customer Data
(a) Consent and Notices.
(1) Customer is responsible for obtaining any consents and providing any legally required notices necessary to enable: (1) Customer’s and Users’ access to and use of the Services; and (2) Singlewire’s access to, storage of and processing of Customer Data collected, received or otherwise generated by Singlewire in connection with Customer’s and Users’ access to and use of the Services and as otherwise contemplated under the applicable Agreement(s).
(2) Customer acknowledges and agrees that it is solely responsible for requesting and obtaining from Singlewire all information necessary to accurately explain all relevant data practices in connection with any consents and notices. Customer acknowledges and agrees that Singlewire will not, and shall have no responsibility to, provide notices or obtain consents directly from individuals on Customer’s behalf and Singlewire shall have no liability for Customer’s failure to provide any such notices or obtain any such consents.
(b) Permitted Use of Customer Data. Customer acknowledges and agrees that Singlewire shall have the right to:
(1) access Customer Data to administer, provide, operate and configure the Services;
(2) reproduce, translate, encode, publish, use and distribute Customer Data to the extent necessary to administer, provide, operate or configure the Services and as otherwise described in the applicable Agreement(s) or the Documentation; and
(3) use the Customer Data to create Aggregated Data and to use, share and commercialize such Aggregated Data for any lawful purpose, including, without limitation, improving the Services and developing new products and services.
(c) Prohibited Use of Customer Data. Except as otherwise agreed by the Parties in writing:
(1) Singlewire shall not, whether directly or indirectly, sell, pledge, assign, license, rent, gift, distribute or otherwise transfer or permit access to Customer Data to a third party except as provided in the applicable Agreement(s) or where necessary to administer, provide, operate or configure the Services; and
(2) at no time shall Singlewire derive any revenue from, otherwise monetize or attempt to derive any revenue from the use of Customer Data except for the fees earned under the applicable Agreement(s).
(d) Restrictions. Customer and Customer’s Personnel shall not provide Singlewire any Customer Data except to the extent necessary for Customer and Users to access and use the Services in accordance with the applicable Agreement(s). Without limiting the generality of the foregoing, Customer shall not provide Singlewire any Customer Data that Customer is not permitted to disclose pursuant to applicable laws.
(e) Non-Infringement. Without limiting anything set forth in the applicable Agreement(s), Customer represents and warrants to Singlewire that: (1) Customer has all necessary rights in and to any and all Customer Data provided to Singlewire in connection with the applicable Agreement(s); (2) Customer Data shall not infringe any third party’s Intellectual Property rights; and (3) Customer Data does not contain, promote or link to material that is pornographic, defamatory, offensive, harassing, malicious, illegal or otherwise objectionable.
(f) Removal. Without limiting anything set forth in the applicable Agreement(s), upon the expiration or earlier termination of the applicable Agreement, Singlewire will remove the applicable Customer Data from the Services and such Customer Data will no longer be accessible or otherwise available to Customer or any User through the Services. Within ninety (90) days after the expiration or earlier termination of the applicable Agreement, Singlewire will securely erase or destroy the applicable Customer Data in Singlewire’s possession or under its reasonable control; provided, however, Customer acknowledges and agrees that Singlewire will securely erase or destroy any Customer Data stored on Singlewire’s backup or archive systems within six (6) months after the expiration or earlier termination of the applicable Agreement. For clarity, the removal and destruction of Customer Data shall not apply to any Aggregated Data and the expiration or earlier termination of the applicable Agreement shall not affect, limit or otherwise modify Singlewire’s rights in and to any and all such Aggregated Data.
(g) Additional Terms.
(1) If Customer’s use of the Services is limited to use within the United States of America, these Terms incorporate the Singlewire U.S. Data Processing Agreement (“U.S. DPA“), located at https://www.singlewire.com/singlewire-dpa-us. The U.S. DPA shall apply where privacy laws apply to those Services where, in the course of providing such Services, Singlewire processes Personal Data on Customer’s behalf.
(2) If Customer’s use of the Services includes use outside the United States of America, these Terms incorporate the Singlewire International Data Processing Agreement (“International DPA“), located at https://www.singlewire.com/singlewire-intl-dpa. The International DPA shall apply where privacy laws apply to those Services where, in the course of providing such Services, Singlewire processes Personal Data on Customer’s behalf.
8. OWNERSHIP
(a) On Premise Software Offerings. As between the Parties, Singlewire owns all right, title and interest in and to the On Premise Software Offerings, including any outputs, analytics, improvements, modifications, enhancements, additions and derivatives therein and thereof and any and all Intellectual Property rights in the foregoing. Licensor reserves all rights in and to the On Premise Software Offerings not expressly granted to Customer under the applicable Agreement. Except for the limited rights and licenses granted under the applicable Agreement(s), nothing in the applicable Agreement(s) grants, by implication, waiver, estoppel or otherwise, to Customer or any third party any Intellectual Property rights or other right, title or interest in or to the On Premise Software.
(b) SaaS Offerings. As between the Parties, Singlewire owns all right, title and interest in and to the SaaS Offerings, including any outputs, analytics, improvements, modifications, enhancements, additions and derivatives therein or thereof and any and all Intellectual Property rights in the foregoing. Customer does not acquire any rights, express or implied, in the foregoing other than those specified in the applicable Agreement(s).
(c) Feedback. By submitting Feedback to Singlewire in any way, Customer acknowledges and agrees that: (1) the Feedback does not contain confidential or proprietary information; (2) Singlewire is not under any obligation of confidentiality, express or implied, with respect to the Feedback; (3) Singlewire shall be entitled to disclose (or choose not to disclose) such Feedback for any purpose and in any way; (4) Singlewire may have something similar to the Feedback already under consideration or in development; (5) any Feedback which is not subject to a patent automatically becomes Singlewire’s property without obligation to Customer; and (6) Customer is not entitled to any compensation or reimbursement of any kind from Singlewire under any circumstances with respect to or in connection with any such Feedback.
(d) Aggregated Data. Singlewire owns all right, title, and interest in and to any Aggregated Data. Customer does not acquire any rights, express or implied, in any Aggregated Data, other than those specified in the applicable Agreement(s).
(e) Customer Data. As between the Parties, Customer owns all right, title and interest in and to Customer Data, irrespective of whether Customer Data is stored via the Services or in any databases created using the Services. For clarity, the foregoing only applies to the individual components of Customer Data and does not include any Singlewire Intellectual Property incorporated in or applied to Customer Data through or in connection with the administration, performance, operation or configuration of the Services. Singlewire does not acquire any rights, express or implied, in Customer Data, other than those specified in the applicable Agreement(s).
(f) Deliverables. Unless otherwise expressly agreed in writing by the Parties, Singlewire retains all right, title and interest in and to the Deliverables created, provided or made available by Singlewire through or in connection with the Services, excluding any Customer Intellectual Property incorporated therein. Without limiting anything set forth in the applicable Agreement(s) or any other written agreement between the Parties concerning the Services, Customer represents and warrants to Singlewire that Customer has all necessary rights in and to any Customer Intellectual Property incorporated in, or otherwise utilized by, any Deliverables and Customer Intellectual Property incorporated therein shall not infringe any third party’s Intellectual Property rights.
(g) Third Party Intellectual Property. Customer acknowledges that Singlewire may have incorporated into the Services, or otherwise provide access from the Services to, Intellectual Property owned by third parties (collectively, “Third Party Intellectual Property“) and Customer agrees that Customer’s right to access or use such Third Party Intellectual Property, including, without limitation, applicable features and functionalities of the On Premise Software Offerings or SaaS Offerings, may be subject to Customer’s agreement to additional licensing terms concerning such Third Party Intellectual Property. Customer’s express agreement to such additional licensing terms may be required before Customer can access and use certain Third Party Intellectual Property. Without limiting the foregoing, Customer acknowledges that the On Premise Software Offerings and SaaS Offerings may include or use software subject to open source license agreements, including, without limitation, such software described or otherwise identified in the Documentation. Such open source licensing agreements apply, to the extent not in conflict with such agreements, to Customer’s access to and use of such software in addition to and not in lieu of the terms and conditions of the applicable Agreement(s).
9. Fees and Payment
(a) Purchases Through Resellers. If Customer purchases Products or Services pursuant to an Order Form between Customer and a Reseller, Customer shall be responsible for paying all applicable amounts in accordance with the payment terms defined in such Order Form.
(b) Direct Purchases. For Order Forms Customer enters into directly with Singlewire, unless otherwise provided in the applicable Bid/Quote or Order Form, undisputed invoices are due and payable in full thirty (30) days from the date of Customer’s receipt of such invoice, subject to continuing credit approval by Singlewire. Each Party will be responsible for any taxes on property it owns or leases, for any franchise or privilege tax on its business and for any tax based on its income or gross receipts. Unless otherwise specified in the applicable Bid/Quote or Order Form, rates for the Products and Services shall include any applicable sales, use, excise, value added, service and other similar taxes. If withholding of any tax is required with respect to any payment by Customer to Singlewire under an applicable Agreement, Customer shall: (1) withhold the appropriate amount from such payment; and (2) pay such amount to the relevant authorities in accordance with applicable laws. Upon request from Singlewire, Customer shall provide a copy of the tax receipt documenting payment of taxes to the relevant authorities.
(c) Suspension. If payments are not received as described above or in the applicable Agreement(s), Singlewire reserves the right to temporarily suspend Services until payment is received and/or terminate future Services.
10. Confidentiality
(a) Obligations. The Receiving Party shall keep in strict confidence and trust all Confidential Information of the Disclosing Party. The Receiving Party shall: (1) not, without the prior written consent of the Disclosing Party: (a) disclose the Disclosing Party’s Confidential Information to any third party (other than to the Receiving Party’s employees, agents or representatives on a need-to-know basis who are bound by obligations of non-disclosure and limited use at least as stringent as those contained herein); or (b) use the Disclosing Party’s Confidential Information except and solely for the performance of the Receiving Party’s obligations under the applicable Agreement(s); and (2) use the same care and discretion to avoid disclosure of the Disclosing Party’s Confidential Information as it uses with its own confidential or proprietary information, and in no event with less than reasonable care.
(b) Exceptions. As used in these Terms, the term Confidential Information does not include information that demonstrably: (1) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party; (2) was possessed by the Receiving Party prior to being furnished by the Disclosing Party, provided that the source of such information was not known by the Receiving Party to be bound by a confidentiality agreement with, or other obligations of confidentiality to, the Disclosing Party or any third party with respect to such information; (3) is independently developed by the Receiving Party without breach of the applicable Agreement(s); or (4) becomes available to the Receiving Party from a source other than the Disclosing Party that is permitted to disclose such information, provided that such source is not bound by a confidentiality agreement with, or other obligation of confidentiality to, the Disclosing Party or any third party with respect to such information.
(c) Required Disclosures. It shall not be a violation of Section 10(a) for the Receiving Party to disclose the Disclosing Party’s Confidential Information in response to a subpoena or other legal process served upon the Receiving Party or where applicable law requires the disclosure of such information, provided that: (1) if not prohibited under applicable law, the Receiving Party, prior to disclosing such information, gives reasonable prior written notice to the Disclosing Party sufficient to permit the Disclosing Party to seek a protective order if it so chooses; and (2) in all cases, the Receiving Party discloses only that information that is legally required to be disclosed. For clarity, any of the Disclosing Party’s Confidential Information the Receiving Party discloses pursuant to this Section 10(c) shall remain subject to the confidentiality requirements under these Terms for all other purposes.
(d) Remedies. The Receiving Party acknowledges and agrees that the Disclosing Party may be irreparably harmed if the Disclosing Party’s Confidential Information were to be disclosed to third parties, or if any use were to be made of such Confidential Information other than as permitted under these Terms and further agrees that the Disclosing Party shall have the right to seek injunctive relief upon any violation or threatened violation of the terms of this Section 10, in addition to all other rights and remedies available at law or in equity, without having to post a bond or other security.
(e) Return/Destruction of Confidential Information. Except as otherwise set forth in the applicable Agreement(s), upon the expiration or termination of these Terms for any reason, or upon the Disclosing Party’s written request, the Receiving Party shall return to the Disclosing Party all Confidential Information of the Disclosing Party, together with any copies thereof, or, if requested by the Disclosing Party, destroy the same.
(f) Survival of Confidentiality Obligations. The Receiving Party’s obligation to maintain the confidentiality of the Disclosing Party’s Confidential Information shall be in effect during the Term and for a period of 5 years after the expiration or earlier termination of the applicable Agreement(s). Notwithstanding anything to the contrary in the applicable Agreement(s), the obligations of confidentiality with respect to a trade secret of the Disclosing Party shall continue in effect so long as such Disclosing Party protects such Confidential Information as a trade secret under applicable trade secret laws.
11. Term and Termination
(a) Term. These Terms shall become effective on the date of Customer’s acceptance hereof (the “Effective Date“) and shall remain in effect during the term of the applicable Agreement(s) unless otherwise terminated as permitted by these Terms (the “Term“). In the event no Agreement is in effect, either Party may terminate these Terms for any or no reason by providing written notice to the other Party.
(b) Agreements. Notwithstanding anything to the contrary herein, the term any Agreement that does not expressly set forth the term thereof shall be a period of twelve (12) months unless otherwise terminated as permitted by the terms of the applicable Agreement.
(c) Termination. In addition to any other express termination right set forth in the applicable Agreement(s):
(1) Singlewire may terminate, as applicable, any Service or any feature or function of a particular Service upon sixty (60) days’ prior written notice if, as applicable, such Service or any feature or function of such Service, is being generally discontinued, in which case Singlewire will credit or refund any allocable prepaid fees on a pro rata basis; provided, however, with respect to, as applicable, any Service or feature or function of a particular Service that is provided by a third party or otherwise utilizes or relies on any third party Intellectual Property, including, without limitation, Third Party Intellectual Property (a “Third Party Feature“), Singlewire may terminate any such Third Party Feature immediately upon notice to Customer in the event Singlewire’s right to make such Third Party Feature available to Customer under the applicable Agreement terminates or expires;
(2) Singlewire may terminate the applicable Agreement(s), effective on written notice to Customer, if Customer: (1) fails to pay any amount when due hereunder and such failure continues for more than thirty (30) days after Singlewire’s delivery of written notice thereof; or (2) breaches any of Customer’s obligations under Sections 3(b), 3(d), 4(c), 4(d), 4(e) or 4(h) of these Terms;
(3) either Party may terminate the Agreement(s), effective on written notice to the other Party, if the other Party materially breaches the applicable Agreement(s), and such breach: (1) is incapable of cure; or (2) being capable of cure, remains uncured for a period of thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; and
(4) either Party may terminate the Agreement(s), effective immediately upon written notice to the other Party, if the other Party: (1) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (2) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (3) makes or seeks to make a general assignment for the benefit of its creditors; or (4) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(d) Effects of Termination. Without limiting any other effects of termination set forth in the applicable Agreement(s), upon termination of an Agreement, Customer shall immediately discontinue access to and use of and shall have no further right to access or use the applicable Services provided under such Agreement. Termination will not affect Customer’s obligations to pay any and all fees that have become due before such termination, nor shall termination an Agreement entitle Customer to any refund. Further, termination shall not relieve Customer of any liabilities or obligations arising before the date of such termination.
12. Representations, Warranties and Covenants; Disclaimers
(a) Mutual Representations and Warranties of the Parties. Each Party represents and warrants that: (1) it is duly organized, validly existing and in good standing under the laws of the applicable jurisdiction (as applicable); (2) it is duly qualified to do business and is in good standing in every jurisdiction in which qualification is required; (3) it has full right, power and authority to enter into the applicable Agreement(s) and to perform its obligations thereunder; (4) the execution or acceptance of each Agreement by the Party will not violate, conflict with, require consent under or result in any breach or default under the provision of any contract or agreement to which the Party is a party or to which any of its material assets are bound; and (5) each Agreement has been properly executed and constitutes the legal, valid and binding obligation of the Party, enforceable against the Party in accordance with its terms.
(b) Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants that: (1) Customer’s access to, use of and receipt of the Products and Services are at Customer’s own risk and Singlewire shall not be liable for any damages arising, directly or indirectly, from Customer’s or Users’ access to use of or receipt of the Products or Services, including reliance on the information, analysis and other data available or otherwise provided by Singlewire through or in connection with the Products or Services; and (2) Customer’s access to, use and receipt, directly or indirectly, of the Products and Services shall comply with all applicable laws and shall not, and Customer shall not attempt to take any action intended to, infringe any third party’s Intellectual Property rights.
(c) Singlewire Representations, Warranties and Covenants. Singlewire warrants to Customer that the Services will be performed in a good and workmanlike manner by trained professionals and in accordance with generally accepted industry standards of care and competence (the “Limited Services Warranty“). Customer’s sole and exclusive remedy (and Singlewire’s entire liability) with respect to this Limited Services Warranty be for Singlewire to either, at its option: (1) re-perform or cause to be re-performed, at Singlewire’s cost, the portion of the Services not in compliance with this Limited Services Warranty; or (2) refund amounts paid by Customer related to that portion of the Services not in compliance; provided, however, in each case of alleged noncompliance Customer notifies Singlewire of the alleged noncompliance within ten (10) business days of its occurrence. Singlewire shall have the exclusive options to invoke provisions (1) or (2) above, except that if Customer’s notification includes a request for Singlewire to invoice (1) before (2), then Singlewire will engage in commercially reasonable efforts to honor such request. THIS PARAGRAPH SETS FORTH SINGLEWIRE’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY DEFECTIVE SERVICES COVERED BY THIS LIMITED SERVICES WARRANTY.
(d) Disclaimer of Warranties. Other than as expressly stated in the applicable Agreement(s), and to the maximum extent permitted by applicable laws, Customer acknowledges and agrees that:
(1) THE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITH ALL FAULTS WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, QUIET POSSESSION, OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SINGLEWIRE, ITS AFFILIATES OR THIRD PARTIES SHALL CREATE A WARRANTY OF ANY KIND OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY EXPRESSLY GRANTED HEREIN.
(2) SINGLEWIRE MAKES NO WARRANTY OF ANY KIND THAT THE PRODUCTS OR SERVICES, OR ANY OF THE RESULTS FROM THE USE THEREOF, WILL MEET CUSTOMER’S, USERS’ OR ANY THIRD PARTY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR-FREE. CUSTOMER ASSUMES THE ENTIRE RISK AS TO THE ACCESS TO, USE OF AND RECEIPT OF THE PRODUCTS AND SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, UPDATES OR OTHERWISE.
(3) SINGLEWIRE EXPRESSLY DISCLAIMS THAT THE PRODUCTS OR SERVICES WILL BE WITHOUT ERROR OR INVULNERABLE TO VIRUSES, WORMS OR OTHER HARMFUL SOFTWARE.
(4) SINGLEWIRE DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AGAINST THE POSSIBILITY OF DELETION, MISDELIVERY OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS OR OTHER DATA, INCLUDING ANY CUSTOMER DATA, COLLECTED, STORED, TRANSMITTED OR OTHERWISE USED IN CONNECTION WITH CUSTOMER’S AND USERS’ ACCESS TO, USE OF AND RECEIPT OF THE PRODUCTS AND SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS MAY NOT APPLY TO CUSTOMER.
13. Indemnification
(a) Indemnification by Singlewire.
(1) Singlewire shall indemnify, defend and hold Customer harmless from and against any and all losses, settlements, claims, actions, suits, proceedings, investigations, judgments, awards, damages and liabilities (collectively, “Losses“), and shall reimburse Customer for any and all legal (including reasonable attorneys’ fees), accounting and other fees, costs and expenses reasonably incurred in connection with investigating, mitigating or defending against any such Loss (collectively, “Expenses“) where such Losses or Expenses are sustained, incurred by or asserted against Customer and arise out of a third party claim that the Products or Services infringe or misappropriate such third party’s Intellectual Property rights (“Infringement Claim“).
(2) Singlewire’s indemnification obligations shall not apply to any Loss or Expense based on: (1) Customer’s use of the Products or Services in any manner not expressly permitted under the applicable Agreement(s) or the Documentation or otherwise without Singlewire’s written permission; (2) Customer’s use or combination of the Products or Services with non-Singlewire provided software, hardware, equipment or technology except for uses or combinations that are approved by Singlewire in writing or any combination made in connection with the customary, ordinary and intended use of the Products or Services; (3) Customer’s access to, use of or receipt of the Products or Services after receiving notice the Products or Services infringe a third party’s Intellectual Property rights; or (4) any Loss or Expense for which Customer is contractually obligated to indemnify, defend, or hold Singlewire harmless.
(3) If an Infringement Claim is made or appears possible, Customer agrees to permit Singlewire, at Singlewire’s sole discretion, to: (1) modify or replace the Products or Services, or component or part thereof, to make them non-infringing; or (2) obtain the right for Customer to continue to access, use and receive the Products or Services. If Singlewire determines that neither alternative is reasonably available, Singlewire may terminate the applicable Agreement(s) with respect to the affected component or part, effective immediately on written notice to Customer, and credit or refund any allocable prepaid fees on a pro rata basis.
(4) This Section 13(a) sets forth Customer’s sole remedy and Singlewire’s sole liability and obligation for any actual, threatened or alleged Infringement Claim. In no event will Singlewire’s liability under this Section 13(a) exceed the amounts paid to Singlewire under the applicable Agreement(s) in the twelve (12) months immediately preceding the event giving rise to such Infringement Claim.
(b) Indemnification by Customer. Customer shall indemnify, hold harmless and defend Singlewire and its Affiliates, and its and their officers, directors, employees, agents and attorneys (“Singlewire Indemnified Parties“) from and against any and all Losses or Expenses that are sustained or incurred by, or asserted against, any Singlewire Indemnified Party arising out of: (1) Customer’s negligence or more culpable conduct; (2) Customer’s breach of any representation, warranty or covenant made by Customer under the applicable Agreement(s); (iii) Customer’s access to, use of or receipt of the Products or Services in a manner not authorized by the applicable Agreement(s); (4) Customer’s use of the Products or Services in combination with any software, hardware, equipment or technology not provided by Singlewire or authorized by Singlewire in writing, including in the Documentation, or any combination made in connection with the customary, ordinary and intended use of the Products or Services, where such Loss or Expense would not have arisen but for such combination; (5) modifications to the Products or Services not made by Singlewire where such Loss or Expense would not have arisen but for such modification; or (6) any claim that Customer Data or Customer’s access to, use of or receipt of the Products or Services, infringes or constitutes a wrongful use of any third party’s Intellectual Property rights, any right of publicity or privacy, or is libelous or defamatory where such claim arises from Customer’s access to or use of the Products or Services in violation of the applicable Agreement(s).
(c) Indemnification Procedure. In the event a Party is entitled to indemnification pursuant to these Terms, the Party seeking indemnification shall provide the indemnifying Party with: (1) prompt written notification of any such Losses or Expenses; (2) sole control and authority over the defense or settlement thereof, provided that if any settlement requires any actions or admissions by the indemnified Party, then the settlement will require the indemnified Party’s prior written consent; and (3) all available information and reasonable assistance necessary to settle and/or defend any such Losses or Expenses, at the indemnifying Party’s expense. Failure by the indemnified Party to provide prompt notice of a Loss or Expense or to provide sole control and authority or information and assistance shall not relieve the indemnifying Party of its indemnification obligations under these Terms, except and solely to the extent the indemnifying Party is materially prejudiced by such failure. The indemnified Party may have its own counsel present at, and participate in, all proceedings or negotiations relating to a Loss or Expense, at the indemnified Party’s own expense.
14. Limitation of Liability
(a) General. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER OR IN CONNECTION WITH THE APPLICABLE AGREEMENT(S) FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (EVEN IF PREVIOUSLY APPRISED OF THE POSSIBILITY THEREOF), WHETHER THE BASIS OF THE LIABILITY IS BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTORY OR ANY OTHER LEGAL THEORY, OR FOR ANY ERROR OR INTERRUPTION OF USE, INCREASED COSTS, DIMINUTION IN VALUE, LOST BUSINESS, LOST PRODUCTION, LOST REVENUES, LOST PROFITS, LOSS OF GOODWILL OR REPUTATION OR COST OF REPLACEMENT GOODS OR SERVICES. SUBJECT TO ANY OTHER LIMITATIONS OF LIABILITY SET FORTH IN THE APPLICABLE AGREEMENT(S), THE AMOUNT OF SINGLEWIRE’S LIABILITY TO CUSTOMER UNDER ANY AND ALL CLAIMS FOR LOSS OR LIABILITY BASED UPON, ARISING OUT OF, RESULTING FROM OR IN ANY WAY CONNECTED WITH SINGLEWIRE’S PERFORMANCE UNDER OR BREACH OF THE APPLICABLE AGREEMENT(S) SHALL IN NO CASE EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO SINGLEWIRE UNDER THE APPLICABLE AGREEMENT(S) IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACT GIVING RISE TO THE LIABILITY.
(b) Exclusions. THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY WITH RESPECT TO ANY OF THE FOLLOWING: (1) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS; (2) CUSTOMER’S INDEMNIFICATION OBLIGATIONS; OR (3) ANY DAMAGES RESULTING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(c) Customer Actions/Inactions. FOR THE SAKE OF CLARITY, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, SINGLEWIRE SHALL NOT BE RESPONSIBLE OR LIABLE UNDER THE APPLICABLE AGREEMENT(S) FOR ANY COSTS, EXPENSES, DAMAGES OR LIABILITIES, AND CUSTOMER SHALL BEAR ALL RESPONSIBILITY, WITH RESPECT TO ANY DAMAGES OR LIABILITIES CAUSED BY OR ARISING FROM: (1) ANY VIOLATION OF ANY APPLICABLE LAW OR ANY THIRD PARTY CLAIM ASSOCIATED WITH CUSTOMER DATA; (2) CUSTOMER’S ACTIONS OR INACTIONS (UNLESS AT THE SPECIFIC DIRECTION OF SINGLEWIRE); OR (3) CUSTOMER’S FAILURE TO FULFILL ITS RESPONSIBILITIES UNDER THE APPLICABLE AGREEMENT(S).
15. Subcontractors. Singlewire may subcontract the performance of any of its duties or obligations under the applicable Agreement(s) to any person. Singlewire shall be responsible for the acts and omissions of each subcontractor to the same extent as if such acts or omissions were those of Singlewire and shall be responsible for all fees and expenses payable to any subcontractor.
16. Miscellaneous
(a) Relationship of the Parties. It is expressly agreed that the Parties are independent contractors and that the relationship between the Parties shall not constitute a partnership, joint venture, or agency. Neither Party shall have the authority to make any statements, representations, or commitments of any kind, or to take any action, which shall be binding on the other Party, without the prior written consent of such other Party.
(b) No Third Party Beneficiaries. The rights, remedies, obligations, and liabilities arising under or in connection with the applicable Agreement(s) are solely intended to apply to the Parties to the applicable Agreement(s) and their respective successors and assigns. Without limiting the generality of the foregoing, nothing in the applicable Agreement(s), whether express or implied: (1) is intended to confer any rights or remedies under or in connection with the applicable Agreement(s) to Users or any other third party; (2) is intended to relieve or discharge the obligation or liability of any third party to any Party to the applicable Agreement(s); or (3) give any third party any right of subrogation or action over or against any Party to the applicable Agreement(s).
(c) Use of Customer Logo. Notwithstanding anything to the contrary in the applicable Agreement(s), Customer authorizes Singlewire to refer to Customer as a customer and include Customer’s name, word mark and logo in Singlewire’s marketing materials, including on Singlewire’s commercial websites. Customer also authorizes Singlewire to use Customer’s name, word mark and logo in other promotional efforts with prior written consent from Customer.
(d) Amendment and Modification. Singlewire may propose amendments to these Terms at any time by providing notice of such proposed amendments in a manner permitted hereunder. Such proposed amendments shall be deemed accepted and become part of these Terms thirty (30) days after the data such notice is given unless Customer informs Singlewire that Customer does not accept such amendments. In the event Customer informs Singlewire that Customer does not accept the proposed amendments, the proposed amendments will not take effect and the existing terms will continue in full force and effect; provided, however, in the event Customer rejects any such amendments, Singlewire shall have the right to terminate these Terms upon written notice to Customer. No other modification of these Terms shall be valid except by written amendment signed by Singlewire’s and Customer’s authorized representatives.
(e) Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from the applicable Agreement(s) shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
(f) Severability. If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
(g) Assignment. Customer shall not assign any of Customer’s rights or delegate any of Customer’s obligations under the applicable Agreement(s), in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Singlewire. Any purported assignment or delegation in violation of this Section 16(g) will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder arising prior to such assignment or delegation. The applicable Agreement(s) are binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
(h) Force Majeure. In no event shall Singlewire be liable to Customer, or be deemed to have breached the applicable Agreement(s), for any failure or delay in performing Singlewire’s obligations under the applicable Agreement(s), if and to the extent such failure or delay is caused by any circumstances beyond Singlewire’s reasonable control, including acts of God, flood, fire, earthquake, explosion, epidemic or pandemic, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo or other similarly disruptive events, whether or not such events are of a similar type or nature to the previously listed events (each, a “Force Majeure Event“).
(i) Survival. The provisions of these Terms which by their nature are intended to survive the expiration or earlier termination of these Terms shall continue as valid and enforceable obligations of the Parties notwithstanding any such termination, cancellation, completion or expiration. Without limiting the foregoing, the provisions regarding confidentiality, indemnity, and limitations of liability shall survive the expiration or earlier termination of these Terms.
(j) Terms of Service. Customer agrees that, in addition to the applicable Agreement(s), Customer’s access to and use, as applicable, of the On Premise Software Offerings and/or SaaS Offerings are governed by the Singlewire End User License Agreement, available at https://www.singlewire.com/eula as well as any additional terms of use, terms of service, end user license agreement or click-through provisions governing the use, as applicable, of the On Premise Software Offerings and/or SaaS Offerings published, presented or otherwise made available to Customer, Customer’s Personnel or Users, either directly or through, as applicable, the On Premise Software Offerings and/or SaaS Offerings (collectively, the “Terms of Service“). The Terms of Service are incorporated herein by reference. In the event of a conflict between the Terms of Service and these Terms, as between Customer and Singlewire, these Terms control.
(k) Conflicts. In the event of any inconsistency between the statements made in these Terms, an Order Form, a Service Schedule or any other documents incorporated herein by reference, the following order of precedence governs: (1) these Terms; (2) the applicable Service Schedule; (3) the applicable Order Form; and (4) any other document incorporated herein by reference unless such document expressly provides that it is modifying these Terms and is signed by Singlewire’s and Customer’s authorized representatives.
(l) Notices. All notices or other communications permitted or required to be given under the applicable Agreement(s) shall be sent by email to the email address provided by the other Party for such purpose and shall be deemed given when sent. Notices to Singlewire shall be sent to [email protected]. Customer shall provide an email address for notices under the applicable Agreement(s). If Customer fails to provide an email address for notices, Singlewire may provide notices under the applicable Agreement(s) by any means reasonably likely to provide Customer with actual notice thereof.
(m) Electronic Communications. The communications between Singlewire and Customer use electronic means, whether Customer accesses or uses the Services or communicates with Singlewire via email, or whether Singlewire posts notices on the Services or communicates with Customer via email. For contractual purposes, each Party consents to receive communications from the other Party in electronic form. Further, Customer agrees that all notices, disclosures and other communications that Singlewire provides to Customer electronically satisfy any legal requirement that such communications would satisfy if they were provided in a hardcopy writing. The foregoing does not affect either Party’s non-waivable rights.
(n) Governing Law. The Agreement(s) are governed by and construed in accordance with the laws of the State of Wisconsin without giving effect to any choice of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Wisconsin. Any legal suit, action, or proceeding arising out of or relating to the applicable Agreement(s) or the licenses granted hereunder will be instituted exclusively in and will take place in the United States District Court for the Eastern District of Wisconsin or the courts of the State of Wisconsin covering Dane County, Wisconsin, as appropriate. Each Party agrees to submit to the personal jurisdiction of each of these courts for the purpose of litigating claims or disputes, hereby waives any right to a jury trial, and agrees to remain bound by any and all limitations of lability and damages included in the applicable Agreement(s).
(o) Attorney’s Fees. In the event that any Party institutes any legal suit, action or proceeding against the other Party arising out of or relating to the applicable Agreement(s), the prevailing Party in the legal suit, action or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such Party in conducting the suit, action or proceeding, including reasonable attorney’s fees, expenses, and court costs.
(p) Entire Agreement. The applicable Agreement(s) constitute the entire understanding and agreement between the Parties with respect to the transactions contemplated therein and supersede any and all prior or contemporaneous oral or written communications or agreements with respect to the subject matter thereof. No usage of trade, or other regular practice or method of dealing between the Parties or others, will be used to modify, interpret, supplement or alter in any manner the express terms of the applicable Agreement(s). If any document issued by Customer includes any reference that is inconsistent with the provisions of the applicable Agreement(s), such references shall be null and void despite no objection being stated by Singlewire.
Last Updated October 2023