Platform Terms and Conditions
These Platform Terms and Conditions (these "Terms") are a legally binding agreement between Get Lago Corp., a Delaware corporation with its registered office at 1111B S Governors Ave #7455, Dover, DE 19904, United States, and registered with company number 86-3963083 ("Company") and the purchaser or user who accepts these Terms ("Customer"). The effective date of this Agreement is the earlier of the date that Customer signs or accepts this Agreement or the date that Customer uses the Services ("Effective Date").
These Terms apply to the extent referenced in an Order Form (as defined below). In the event of any conflict between these Terms and an Order Form, the terms of the Order Form shall govern unless expressly stated otherwise in the Order Form.
THESE TERMS CONTAIN A BINDING, INDIVIDUAL ARBITRATION AND CLASS-ACTION WAIVER PROVISION IN SECTION 12. CUSTOMER AGREES TO RESOLVE DISPUTES IN BINDING, INDIVIDUAL ARBITRATION AND GIVE UP THE RIGHT TO GO TO COURT, INDIVIDUALLY OR AS PART OF A CLASS ACTION. PLEASE REVIEW SECTION 12 CAREFULLY.
The Company and the Customer are individually referred to as a "Party" and collectively as the "Parties" to these Terms.
1. DEFINITIONS
"Affiliate" of a Party means any other party that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. The term "control" means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract, or otherwise.
"Authorized User" means each representative, employee, consultant, or agent that Customer authorizes to use the Services.
"Billing Volume" means the amount of billing that is processed through the Service.
"Customer Data" means the raw data, information, or input uploaded, submitted, or otherwise provided by Customer or an Authorized User through the Lago API or the Services. For avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services.
"Documentation" means the documentation made available by Company on its website describing the functionality, components, features, or requirements of the Services.
"Feedback" means any feedback, comments, ideas, suggestions for improvement, or recommendations provided by Customer or its Authorized Users regarding the Services.
"Harmful Code" means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm any computer, software, firmware, hardware, system, network, or data; or (b) prevent Customer or any Authorized User from accessing or using the Services as intended.
"Intellectual Property Rights" means patents, patent applications, inventions, copyrights and copyrightable works, moral rights, trademarks, service marks, trade names, domain name rights, know-how, trade secrets, rights in software, databases, artificial intelligence and AI algorithms, and all other intellectual property rights and similar forms of protection throughout the world.
"Lago API" means the application programming interface used to access the Service.
"Losses" means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
"Order Form" means a transaction document that (i) identifies the applicable Services acquired by Customer, (ii) expressly states that it is governed by the terms and conditions of these Terms, and (iii) is signed or accepted by the Parties.
"Plan" means the product plan stated in the applicable Order Form (Starter, Pro, Business, Enterprise).
"Representatives" means, with respect to a Party, that Party's employees, officers, directors, consultants, agents, and independent contractors.
"Resultant Data" means data and information related to Customer's use of the Services that is aggregated and anonymized, including statistical and performance information related to the provision and operation of the Services.
"Service" or "Services" means Company's software-as-a-service platform for billing activities, including the Lago API, as more particularly described in the Documentation.
"Taxes" means (i) any tax, levy, impost, deduction, charge, rate, withholding or duty by whatever name called levied, imposed or assessed with respect to any transaction contemplated by these Terms, including (a) goods and services tax, value added tax, sales tax, use tax or consumption tax, (b) withholding tax, and (c) excise duty, stamp duty, customs duty and other like taxes, fees or surcharges (including regulatory fees or surcharges); and (ii) any interest, penalty, charge, fine or fee or other amount of any kind assessed, charged or imposed in respect of the taxes and other amounts referred to in (i) above; but (in all cases) excludes taxes based solely on Company's net income.
"Service Term" means the period of time set forth in the applicable Order Form for which Customer has rights to access and use the Service.
"Third-Party Software" means any software program, computer code, programming libraries, application programming interfaces, or other materials, (i) the intellectual property rights of which are not owned by Company or its Affiliates and (ii) which are not licensed to Customer under the Terms, but are licensed subject to the license terms and conditions specified at https://getlago.com/third-party-software.
2. ACCESS TO THE SERVICE
2.1 Access to the Service
During the Service Term and subject to the terms and conditions of these Terms, Company grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right, during the Service Term, to access and use the Service in accordance with the Documentation as permitted by the features of the Service.
2.2 Free Trial Access and Beta Features
Company may offer Customer free trial access to the Service ("Trial") for a time-limited number of days unless otherwise agreed by Company in writing (electronic communication acceptable). Sections 8 (Indemnification), 10.1 (Exclusion of Damages), and 10.2 (Limitation of Liability) of these Terms do not apply to any Trial use or any beta features of the Service.
Trials and beta features are provided "AS IS" without warranty of any kind, and Company disclaims all warranties, indemnities and other liability for Trials and beta features. For the avoidance of doubt, Company is in no event liable for any special, indirect, reliance, incidental or consequential damages of any kind, lost or damaged data, lost profits or lost revenue, whether arising in contract, tort (including negligence) or otherwise, and Company's liability for all claims arising under a Trial or beta use will not exceed $100.00. Either party may terminate a Trial at any time.
2.3 Availability and Support
During the Service Term, Company will use commercially reasonable efforts to maintain availability of the Services. Company reserves the right, in its sole discretion, to make changes to the Services that it deems necessary or useful to: (a) maintain or enhance the quality, delivery, competitive strength, cost efficiency, or performance of the Services; or (b) comply with applicable law.
2.4 Suspension
Company may, directly or indirectly, suspend, terminate, or otherwise deny Customer's or any Authorized User's access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) Company receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Company to do so; (b) Company believes, in its reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any material term of these Terms, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under these Terms or in any manner that does not comply with any material instruction or requirement of the Documentation; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (c) These Terms expire or are terminated. This Section 2.4 does not limit any of Company's other rights or remedies, whether at law, in equity, or under these Terms.
3. CUSTOMER'S RESPONSIBILITIES
3.1 Authorized Use
Except if expressly authorized in writing, Customer will not, and will not permit any third party to, use the Service for any purpose other than Customer's own internal business use, or in such manner that would enable any unauthorized person (e.g., not an Authorized User) to access or use the Service for any other purpose other than Customer's own internal use (including without limitation, sublicensing, distributing, selling, or reselling the Service).
3.2 High-Risk Activities
Except if expressly authorized in writing, Customer will not, and will not permit any third party to, use the Service in connection with any high-risk or strict liability activity (including, without limitation, space travel, firefighting, police operations, power plant operation, military operations, rescue operations, hospital and medical operations or the like).
3.3 Prohibited Uses
Customer will not use the Service other than in accordance with these Terms and in compliance with all applicable laws and regulations (including but not limited to any privacy laws, and laws and regulations concerning intellectual property, consumer and child protection, obscenity or defamation) or use the Company's materials in any manner that: (a) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, or libelous (including without limitation, accessing any computer, computer system, network, software, or data without authorization, breaching the security of another user or system, and/or attempting to circumvent any user authentication or security process); (b) impersonates any person or entity, including without limitation any employee or representative of Company; or (c) contains a virus, trojan horse, worm, time bomb, unsolicited bulk, commercial, or "spam" message, or other Harmful Code (including without limitation, password guessing programs, decoders, password gatherers, keystroke loggers, cracking tools, packet sniffers, and/or encryption circumvention programs).
3.4 Account Security
To use the Service, Customer will need to set up an account. When setting up the account, Customer must provide accurate and complete information to Company. Customer must not set up an account using a name or contact information that does not apply to Customer, and must provide accurate and current information on all registration forms. Customer has complete responsibility for the account and everything that happens on the account. Customer must safeguard passwords and other Login Credentials. If Customer discovers that someone is using the account without permission, Customer must notify Company immediately. The account cannot be transferred without Company's explicit prior written consent. Company is not liable for any damages or losses caused by someone using the account without Customer's permission. However, if Company (or anyone else) suffers any damage due to unauthorized use of the account, Customer may be liable.
3.5 Security Obligations
When using the Service, Customer shall: (a) use best efforts to prevent unauthorized access to, or use of, the Service; (b) notify Company in writing immediately of any unauthorized use of, or access to, the Service, or any user account or password thereof; and (c) promptly notify Company of any known or suspected compromise of Login Credentials.
3.6 Restrictions on Use
In the absence of prior express written authorization from Company, Customer shall not, directly or indirectly: (a) sublicense, resell, rent, lease, distribute, market, commercialize, or otherwise transfer rights or usage to the Service or any modified version or derivative work thereof; (b) provide the Service or any modified version or derivative work thereof on a timesharing, service bureau or other similar basis; (c) remove or alter any copyright, trademark or proprietary notice in the Services; (d) copy any features, functions, or graphics in the Service for any purpose other than what is expressly authorized in these Terms; (e) send, store, or authorize a third party to send or store spam, unlawful, infringing, obscene or libelous material, or Harmful Code; (f) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Service or any related systems or networks; (g) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part; (h) use any intellectual property rights protected by applicable laws and contained in or accessible through the Service for the purpose of building a competitive product or service or copying its features or user interface; or (i) access or use the Services for purposes of competitive analysis of the Services or the development, provision, or use of a competing service or product.
4. FEES AND PAYMENT TERMS
4.1 Fees; Payment Terms
In exchange for the use of the Service, Customer will pay Company the fees identified in the Order Form and in accordance with the payment terms set forth in the Order Form. If actual payment has not been received within thirty (30) days of the date of receipt of a correct invoice, Company reserves the right to suspend or cancel performance of all or part of the Service if payment is not received by Company within ten (10) days after Company provides notice of non-payment to Customer. Furthermore, Customer will reimburse Company for all costs (including reasonable legal fees) associated with collecting delinquent or dishonored payments by Customer that are more than thirty (30) days past due. At Company's option, interest charges may be added to any past due amounts at the lower of: (i) one and a half percent (1.5%) per month; or (ii) the maximum amount allowed by applicable law. Payments by Customer will thereafter be applied first to accrued interest and then to the principal unpaid balance. Company may revise the fees set forth in the Order Form at time of renewal.
4.2 Taxes
All consideration payable or to be provided under or in accordance with these Terms (including any fees) is exclusive of Taxes. Customer will pay Company an amount equal to any Taxes arising from or relating to these Terms or an applicable Order Form which are paid by or are payable by Company and are separately itemized in Company's invoices to Customer. If Customer is required to withhold or deduct any portion of the payments due to Company, Customer will increase the sum payable to Company by the amount necessary so that Company receives an amount equal to the sum it would have received had Customer not made withholdings or deductions. If Customer is exempt from paying any or all Taxes, Customer shall provide Company with written evidence of such Tax exemptions issued by the applicable taxing authority. Customer shall, on at least an annual basis and upon reasonable request from Company, update or re-confirm such status. Company reserves the right to invoice for applicable Taxes if Customer fails to maintain or update written evidence of such tax-exempt status with Company.
5. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
5.1 Customer Data Ownership
As between Customer and Company, Customer owns and will continue to own all rights, title, and interest, including all Intellectual Property Rights, in and to its Customer Data. Nothing in these Terms shall in any way transfer any right in Customer Data to Company except as expressly provided herein.
5.2 License to Customer Data
Customer grants Company during the Service Term a non-exclusive, non-sublicensable (except to subcontractors solely for purposes of providing the Services), royalty-free, worldwide license to use, copy, store, transmit, modify, process, create derivative works of, and display Customer Data solely to the extent necessary to provide the Services under these Terms.
5.3 Company Services
As between Customer and Company, Company owns and reserves all rights, title, and interest, including all Intellectual Property Rights, in and to: (a) the Services and all improvements, enhancements, modifications, and derivative works thereof; (b) the Documentation; (c) all Resultant Data; and (d) all technology, software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information used by Company to provide the Services.
5.4 Feedback
Customer hereby grants Company a royalty-free, worldwide, transferable, sublicensable, irrevocable, and perpetual license to any Feedback. Company may, without any obligation, incorporate, use, commercialize, and distribute in any manner, including as part of the Services, such Feedback without any attribution, payment, or other obligation to Customer. To the extent that any Feedback relates to Company's Confidential Information, such Feedback shall be deemed Company's exclusive Confidential Information.
5.5 Use of Aggregate Information
Notwithstanding anything to the contrary in these Terms, Company shall have the right to collect and analyze Customer Data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies. Company will be free (during and after the Service Term) to: (a) use such data to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services; and (b) utilize any such data in an aggregated or other de-identified form for any lawful purpose in conformance with applicable privacy laws.
6. CONFIDENTIALITY
6.1 Scope of Confidential Information
As used herein, "Confidential Information" means all information disclosed by either Company or Customer ("Disclosing Party") to the other party ("Recipient") during the term of these Terms that either: (a) is marked confidential or with a similar marking; (b) is disclosed orally and described as confidential at the time of disclosure and subsequently set forth in writing, marked confidential, and sent to the Recipient within thirty (30) days following the oral disclosure; or (c) would be considered confidential by a reasonable third party that is not familiar with the specific industry of the Disclosing Party. Notwithstanding the foregoing, information disclosed by either party concerning technical or product information of any nature, personal data, information relating to the provision of Services, trade secrets, software code, proposals, financial and pricing information and rates, product and marketing plans, marketing opportunities and customer lists is hereby deemed to be Confidential Information regardless of whether or not it is so identified. If Recipient incorporates Confidential Information it has received into its own notes or other data, then those items are also considered Confidential Information. Confidential Information shall not include information which: (1) is or later becomes publicly available other than by the Recipient disclosing it in violation of these Terms or is disclosed by the Disclosing Party without any obligation of confidentiality; (2) is or becomes available to the Recipient from a source other than the Disclosing Party without the requirement that it be treated as confidential, provided that such source was not known by the Recipient to be bound by an obligation of confidentiality with respect to such information; (3) is independently developed by the Recipient without use of the Confidential Information; (4) is in the rightful possession of the Recipient at the time of disclosure by the Disclosing Party without an obligation of confidentiality; (5) is generally known, useless or easily developed by someone with ordinary skills in the business of the Recipient; (6) is disclosed by the Recipient with the Disclosing Party's prior written approval; (7) is licensed under an Open Source License (as defined by the Open Source Initiative at www.opensource.org); or (8) the parties agree in writing should not be treated confidentially or may be disclosed.
6.2 Use and Non-Disclosure
Each party agrees that it will: (a) use the Confidential Information of the Disclosing Party solely to perform its obligations or exercise its rights under these Terms; (b) exercise due care in protecting the Confidential Information from unauthorized use and disclosure; (c) use reasonable measures to protect the confidentiality and value of the other party's Confidential Information; and (d) not disclose, or permit to be disclosed, the Disclosing Party's Confidential Information or the terms of these Terms directly or indirectly to any third party without the Disclosing Party's prior written consent. Notwithstanding the foregoing, either party may disclose the Disclosing Party's Confidential Information: (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations at least as protective as those in these Terms; and (ii) as required by law, provided that, where permissible and feasible, Recipient will provide Disclosing Party with prior written notification and the opportunity to contest such disclosure, and Recipient will use commercially reasonable efforts to minimize such disclosure to the extent permitted by applicable law. In the event of actual or threatened breach of the provisions of this Section 6 by Recipient, Disclosing Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
6.3 Compelled Disclosures
If Recipient or any of its Representatives is compelled by applicable law to disclose any Confidential Information, then to the extent permitted by applicable law, Recipient shall: (a) promptly, and prior to such disclosure, notify Disclosing Party in writing of such requirement so that Disclosing Party can seek a protective order or other remedy or waive its rights under this Section 6; (b) provide reasonable assistance to Disclosing Party, at Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure; and (c) if Disclosing Party waives compliance or, after providing the notice and assistance required above, Recipient remains required by law to disclose any Confidential Information, disclose only that portion of the Confidential Information that, on the advice of Recipient's legal counsel, Recipient is legally required to disclose, and use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
7. REPRESENTATIONS AND WARRANTIES
7.1 Mutual Representations and Warranties
Each Party represents and warrants that: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or organization; (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under these Terms; (c) the execution of these Terms and any Order Form by its representative has been duly authorized by all necessary corporate or organizational action; and (d) when executed and delivered by both Parties, these Terms will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
7.2 Customer Representations and Warranties
Customer represents, warrants, and covenants that: (a) it has the legal authority and all rights necessary to provide Customer Data to Company hereunder; (b) Customer's provision of Customer Data to Company does not and will not violate or conflict with or result in a breach of any terms, conditions, duties or obligations Customer has to any third party or any other rights of any third party or any applicable law, rule or regulation; (c) it owns or otherwise has all necessary rights, power, and authority to utilize Customer Data and to share Customer Data with Company for the purposes set forth in these Terms; (d) it has obtained all requisite authority and consents to share Customer Data with Company; (e) neither Customer Data, nor the use, storage, or provision of Customer Data on or through the Services, will infringe, misappropriate, or violate any third party's Intellectual Property Rights, or rights of publicity, privacy, or confidentiality; (f) its use and provision of Customer Data will not breach any agreement between Customer and a third party or violate any applicable laws, regulations, orders, or rules; and (g) Customer Data does not and will not contain any Harmful Code.
7.3 Limited Warranty
Company represents and warrants to Customer that during the Service Term, the Service will materially comply with the Documentation. In the event of a breach of the foregoing warranty, Customer's exclusive remedy, and Company's entire liability, will be, to the maximum extent permitted by applicable law, for Company to correct any failure(s) of the Service to materially perform in accordance with the Documentation, or if Company cannot substantially correct such breach in a commercially reasonable manner, Customer may elect to terminate the applicable Order Form, and Company will promptly refund to Customer any prepaid, unused fees paid by Customer to Company under such Order Form. The warranty set forth in this Section does not apply to: (a) any Trial or beta use; (b) any use of the Service not in accordance with the Documentation or terms of these Terms; (c) any bug or defect attributable to software, hardware or a product not supplied by Company; or (d) any modification of the Service by anyone other than Company or its authorized agents.
7.4 Disclaimer
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.3, THE SERVICE IS PROVIDED AND LICENSED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF QUALITY, MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AND SUCH IMPLIED WARRANTIES, AND ANY OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS AND TERMS, EXPRESS OR IMPLIED (AND WHETHER IMPLIED BY STATUTE, COMMON LAW, COURSE OF DEALING, TRADE USAGE OR OTHERWISE) ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. COMPANY DOES NOT GUARANTEE THAT THE SERVICE HAS BEEN DESIGNED TO MEET CUSTOMER'S SPECIFIC BUSINESS REQUIREMENTS, THAT THE USE OF THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, THAT ALL ERRORS WILL BE CORRECTED, OR THAT THE SERVICE WILL COMPLY WITH LEGAL OR REGULATORY REQUIREMENTS APPLICABLE TO CUSTOMER. CUSTOMER AGREES THAT IT IS SOLELY RESPONSIBLE FOR THE RESULTS OBTAINED FROM THE USE OF THE SERVICE. COMPANY FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR ITS EMPLOYEES OR CONTRACTORS WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
8. INDEMNIFICATION
8.1 Indemnification for Infringement
Company will indemnify, defend and hold harmless Customer, its officers, directors, and employees (collectively, "Customer Indemnitees") from and against all Losses awarded in final judgment or paid in settlement in relation to any third party claim, action or suit ("Claim") brought against Customer Indemnitees arising from an allegation that Customer's authorized use of the Service in accordance with these Terms infringes any Intellectual Property Right of a third party ("Infringement Claim"). The foregoing obligation does not apply to the extent that the alleged infringement arises from: (a) Customer Data or any Third-Party Software; (b) access to or use of the Services in combination with any content, hardware, system, software, network, or other materials or service not provided by Company or specified for Customer's use in the Documentation; (c) modification of the Services other than: (i) by or on behalf of Company; or (ii) with Company's written approval in accordance with Company's written specification; (d) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Company; or (e) any acts, omissions, or matters described in Section 8.2, whether or not the same results in any action against or Losses by any Company Indemnitee.
8.2 Indemnification by Customer
Customer will defend, indemnify and hold harmless Company, its officers, directors, employees, contractors and licensors (collectively, "Company Indemnitees"), from and against all Losses in relation to any Claims against any Company Indemnitees arising from or in relation to: (a) Customer Data, including any processing of Customer Data by or on behalf of Company in accordance with these Terms; (b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Company's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User; (c) Customer's infringement of third party's rights, including Intellectual Property Rights or rights of privacy; (d) Customer's breach of any laws, rules, or regulations; (e) allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants, or obligations under these Terms; or (f) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with these Terms.
8.3 Indemnification Procedure
Each Party's indemnification obligations under this Section 8 are contingent upon the indemnified party: (a) providing the indemnifying party with prompt written notice of such Claim; (b) providing the indemnifying party with reasonable cooperation, at indemnifying party's expense, in the defense and settlement of such Claim; and (c) granting the indemnifying party sole control to defend or settle such Claim, provided that no settlement shall require any payment, admission of liability, or other action by the indemnified party without the indemnified party's prior written consent, which shall not be unreasonably withheld. The indemnified party may participate in the defense with counsel of its choice at its own expense. If the indemnifying party fails to assume defense of a Claim within thirty (30) days after receiving written notice thereof, the indemnified party may defend the Claim at the indemnifying party's expense. The indemnified party's failure to perform any obligations under this Section 8.3 will not relieve the indemnifying party of its obligations under this Section 8, except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure.
8.4 Remedies; Mitigation
If the Services are, or in Company's reasonable opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer's use of the Services is enjoined or threatened to be enjoined, Company may, at its option and sole expense: (a) obtain the rights necessary for Customer to continue to use the Services consistent with these Terms; (b) modify or replace the Services so that they are non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services under these Terms; or (c) by giving written notice to Customer, terminate these Terms with respect to the affected Services and require Customer to immediately cease use thereof, provided that, subject to Customer's compliance with Section 9.3(b) (Effect of Termination), Customer will be entitled to a refund of a pro-rata portion of prepaid fees attributable to the remaining unused portion of the Service Term for the affected Services.
8.5 Sole Remedy
OTHER THAN THE INDEMNIFICATION OBLIGATIONS IN RESPECT OF COVERAGE OF LOSSES, THE FOREGOING STATES THE ENTIRE OBLIGATION OF COMPANY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AND LICENSORS WITH RESPECT TO ANY REMEDY AGAINST AN INFRINGEMENT CLAIM. THIS SECTION 8 SETS FORTH CUSTOMER'S SOLE REMEDIES AND COMPANY'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR ANY SUBJECT MATTER OF THESE TERMS INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
8.6 Exclusions
Notwithstanding the foregoing, neither party will have any obligation to indemnify the other party in the event that the Claim arose due to the indemnified party's gross negligence or willful misconduct.
9. RENEWAL AND TERMINATION
9.1 Renewal
Unless otherwise agreed in the applicable Order Form, with respect to the Service, the Service Term will automatically renew for successive periods equal in length to the initial Service Term (each a "Renewal Service Term"), unless either party gives written notice to the other of its intention not to renew at least thirty (30) days before the commencement of the next Renewal Service Term. Company reserves the right to modify the fees or terms applicable to any Renewal Service Term, provided that Company provides notice of such modifications at least thirty (30) days prior to the commencement of the Renewal Service Term.
9.2 Termination; Effect of Termination
If either party materially breaches the terms of these Terms or an Order Form, and such breach is not cured within thirty (30) days after written notice of the breach is given to the breaching party, then the non-breaching party may, by giving written notice of termination to the breaching party, terminate these Terms and/or any applicable Order Form; provided, however, that in case of non-payment of fees the cure period shall only be ten (10) days. The termination of an individual Order Form will not terminate any other Order Form or these Terms unless otherwise specified in the written notice of termination. Either party may terminate an Order Form, these Terms, and any other Order Form(s) in existence at the time with immediate effect by written notice to the other party if the other party has been declared bankrupt or if a moratorium of payments has been declared, or if any proceeding of bankruptcy, insolvency or other law for the relief of debtors, including the appointment of any liquidator, examiner, administrator, receiver or trustee or assignment for the benefit of creditors shall be instituted or other similar or analogous event in any jurisdiction occurs. Upon any expiration or termination of these Terms: (i) all rights granted hereunder and all obligations of Company to provide the Service will immediately terminate; (ii) Customer will cease use of the Service; and (iii) each party will return or destroy all copies or other embodiments of the other party's Confidential Information (except for backups made in the ordinary course of business which shall be deleted according to that Party's standard backup deletion schedule).
9.3 Survival
Upon expiration or termination of these Terms, any provisions intended by their nature to survive termination of these Terms shall survive, including without limitation Sections 1 (Definitions), 5 (Intellectual Property Rights and Ownership), 6 (Confidentiality), 10 (Exclusion and Limitation of Liability), 11 (Miscellaneous), 12 (Governing Law and Dispute Resolution), and any obligations for payment of fees incurred prior to termination.
10. EXCLUSION AND LIMITATION OF LIABILITY; RISK ALLOCATION
10.1 Exclusion of Damages
IN NO EVENT WILL EITHER PARTY OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) LOSS OF USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS; (C) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (D) COST OF REPLACEMENT GOODS OR SERVICES; (E) LOSS OF GOODWILL OR REPUTATION; OR (F) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
10.2 Limitation of Liability
EXCEPT FOR INFRINGEMENT BY A PARTY OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL THE AGGREGATE LIABILITY OF A PARTY OR ANY OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, OR ARISING FROM INDEMNIFICATION OBLIGATIONS OF A PARTY, EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE TO COMPANY UNDER THESE TERMS IN THE TWELVE (12) MONTHS PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11. MISCELLANEOUS
11.1 Entire Agreement
These Terms, including all Order Forms and any MSA, sets forth the entire agreement between the parties and supersedes all prior proposals, agreements and representations between them, whether written or oral, relating to the subject matter contained herein. Each party acknowledges that in entering into these Terms it has not relied on any representation, warranty or collateral contract or other assurance except those set out in these Terms. These Terms and each Order Form may be changed only if agreed to in writing and signed by an authorized signatory of each party. In the event of a conflict between an Order Form and these Terms, the terms and conditions set forth in the Order Form will govern unless expressly stated otherwise in the Order Form. In the event of a conflict between an MSA and these Terms, the terms and conditions set forth in the MSA will govern. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Customer issues any purchase orders or similar documents in connection with its purchase of the Service, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms, which are hereby deemed rejected and extraneous to these Terms. To facilitate execution, these Terms may be executed by one or more of the parties in the form of an "Electronic Record," as such term is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. ("ESIGN Act"). These Terms may be executed in as many counterparts as may be required to reflect all parties' agreement, all counterparts will collectively constitute a single agreement, and such "Electronic Signature," as defined in the ESIGN Act, will constitute an original and binding signature of a party. The fact that a document is in the form of an Electronic Record and/or is signed using an Electronic Signature will not, in and of itself, be grounds for invalidating such document.
11.2 Export Control
Customer may not remove or export from the United States or allow the export or re-export of the Service 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. Customer represents and warrants that neither Customer nor any Authorized User is named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person.
11.3 Assignment
Neither party may assign these Terms or assign or delegate its rights or obligations under these Terms without the other party's prior written consent, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may assign these Terms to an acquirer of or successor to all or substantially all of its business or assets to which these Terms relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise, provided that such assignment or transfer is not in favor of a direct competitor of the non-assigning party. Any assignment or attempted assignment by either party otherwise than in accordance with this Section will be null and void. Subject to the foregoing, these Terms will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
11.4 Notices
All notices under these Terms will be in writing and sent to the addresses or email addresses set forth in the Order Form or as otherwise designated by a party in writing. Customer shall direct all notices to Company to the email address: legal@getlago.com. Notices will be deemed to have been duly given: (a) when received, if personally delivered; (b) when receipt is electronically confirmed, if transmitted by email; (c) the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and (d) upon receipt, if sent by certified or registered mail, return receipt requested.
11.5 Relationship of the Parties
No agency, partnership, joint venture, or employment is created as a result of these Terms and neither party has any authority of any kind to bind the other party in any respect whatsoever. Customer is not authorized to make any statement, representation, or commitment on behalf of Company or otherwise act on behalf of Company in any manner.
11.6 Severability
If any provision or provisions of these Terms and/or any Order Form shall be held to be invalid, illegal or unenforceable in whole or in part by any court of competent jurisdiction or other competent authority: (a) these Terms and/or any affected Order Form will continue to be valid and enforceable as to the other provisions and/or the remainder of the affected provision(s); and (b) the affected provision(s) will be deemed amended to the minimum extent necessary to render it valid and enforceable in conformity with applicable law and in both cases (a) and (b) subject to the parties' intent as expressed in these Terms and/or the Order Form.
11.7 Force Majeure
Neither party shall be liable to the other for failure or delay in the performance of a required obligation under these Terms and/or Order Form if such failure or delay is caused by acts of God, wars, riots, strikes, fire, terrorist acts, flood, explosion, failure or diminishment of power or of telecommunications or data networks or services, earthquake or other natural disaster, government regulation, or other similar cause beyond such party's reasonable control (each, a "Force Majeure Event"); provided that such party: (a) gives prompt written notice of such condition to the other party; and (b) resumes its performance as soon as reasonably possible. If a Force Majeure Event continues for more than ninety (90) days continuously after the commencement of the Force Majeure Event, either party may terminate the affected Order Form and/or these Terms immediately by giving written notice to the other party, and Company shall refund to Customer any prepaid and unused fees for the affected Services.
11.8 Use of Name and Public Announcements
(a) Customer agrees that Company may identify Customer in Company's promotional materials and customer lists, and may use Customer's corporate name and/or logo in such materials, but Company will promptly stop doing so upon receipt of Customer's written request sent to Company at legal@getlago.com.
(b) Except as permitted in subsection (a), neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to these Terms or, unless expressly permitted under these Terms, otherwise use the other party's trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other Party, which consent shall not be unreasonably withheld.
11.9 Compliance with Laws
Each Party agrees to comply with all applicable laws and regulations with respect to its activities under these Terms, including, but not limited to, export control laws, anti-corruption laws, data protection and privacy laws, and any other applicable laws and regulations. Customer represents and warrants that its use of the Services complies with all applicable laws and regulations.
11.10 Equitable Relief
Each Party acknowledges that a breach of Section 3 (Customer's Responsibilities), Section 5 (Intellectual Property Rights and Ownership), or Section 6 (Confidentiality) may cause the non-breaching Party irreparable harm for which monetary damages would be inadequate compensation. Accordingly, in addition to any other remedies available at law or in equity, the non-breaching Party shall be entitled to seek injunctive relief and other equitable remedies to prevent or restrain such breach, without the requirement of posting a bond or proving actual damages. Such equitable relief shall be in addition to, and not in lieu of, any other remedies available to the non-breaching Party.
11.11 Waiver
The waiver by either Party of any default or breach of these Terms will not constitute a waiver of any other or subsequent default or breach. No waiver will be effective unless it is in writing and signed by the party against whom such waiver is sought to be enforced.
11.12 Non-Exclusive Remedies
Except as expressly set forth in Section 8.5 (Sole Remedy), the exercise by either Party of any remedy under these Terms will be without prejudice to its other remedies under these Terms or otherwise available at law or in equity.
11.13 Interpretation
For purposes of these Terms: (a) the words "include," "includes," and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to these Terms as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in these Terms to sections mean the sections of these Terms. The headings in these Terms are for convenience of reference only and have no legal effect. The Parties intend for these Terms to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
12. GOVERNING LAW AND DISPUTE RESOLUTION
12.1 Governing Law
These Terms will be governed by and construed in accordance with the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any law or regulation which provides that the language of a contract shall be construed against the drafter will not apply to these Terms.
12.2 Arbitration Agreement
Except for Company's right to seek injunctive relief in any court of competent jurisdiction to prevent imminent harm to Company, its users, or its Intellectual Property Rights, any dispute, controversy, or claim arising out of or relating to these Terms, or the breach, termination, or validity thereof, shall be settled by binding arbitration administered by JAMS (Judicial Arbitration and Mediation Services) pursuant to its Streamlined Arbitration Rules and Procedures then in effect.
The place of arbitration shall be San Francisco, California. The arbitration shall be conducted in English. The decision of the arbitrator shall be final and binding on the Parties, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each party shall bear its own costs and attorneys' fees, and the parties shall share equally the fees and expenses of the arbitrator unless the arbitrator determines otherwise.
12.3 Individual Arbitration
The arbitration shall be conducted on an individual basis only, and not as a class, consolidated, or representative action. The arbitrator(s) shall have no authority to proceed with arbitration on a class or representative basis or to consolidate different arbitration proceedings. Any relief awarded by the arbitrator(s) shall be individualized to the claimant and shall not affect any other party to these Terms or any other customer or user of the Services.
12.4 Class Action Waiver
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION OR CLAIM UNDER THESE TERMS SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. CUSTOMER AGREES TO WAIVE ANY RIGHT TO COMMENCE OR PARTICIPATE IN ANY CLASS ACTION AGAINST COMPANY RELATED TO ANY CLAIM AND, WHERE APPLICABLE, CUSTOMER ALSO AGREES TO OPT OUT OF ANY CLASS PROCEEDINGS AGAINST COMPANY.
Customer acknowledges and agrees that by agreeing to this arbitration provision and class action waiver, Customer may only bring claims against Company in an individual capacity and not as a plaintiff or class member in any purported class action, collective action, private attorney general action, or other representative proceeding.
12.5 Arbitrator Authority
The arbitrator shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this arbitration agreement, including any contention that all or any part of this arbitration agreement is void or voidable, and any claim that this arbitration agreement has been breached, revoked, or is otherwise inapplicable. The arbitrator shall also have exclusive authority to determine whether any dispute is subject to arbitration.
12.6 Opt-Out Right
Customer has the right to opt out of this arbitration provision by sending written notice of Customer's decision to opt out to Company at legal@getlago.com within thirty (30) days of the date Customer first accepts these Terms. The notice must include Customer's name, address, and a clear statement that Customer wishes to opt out of this arbitration provision. If Customer opts out of this arbitration provision, all other parts of these Terms will continue to apply. Opting out of this arbitration provision has no effect on any previous, other, or future arbitration agreements that Customer may have with Company.
12.7 Severability of Arbitration Provision
If any provision of this Section 12 (Governing Law and Dispute Resolution) is found to be unenforceable or unlawful for any reason, the unenforceable or unlawful provision shall be severed from these Terms, and the remainder of this Section 12 and the Agreement shall remain in full force and effect. Notwithstanding the foregoing, if the class action waiver in Section 12.4 is found to be unenforceable for any reason, then the entirety of this arbitration provision (Sections 12.2 through 12.7) shall be null and void, and any dispute shall be resolved in court as set forth in Section 12.8.
12.8 Jurisdiction and Venue (If Arbitration Provision is Void)
If for any reason the arbitration provision in this Section 12 is found to be void, unenforceable, or otherwise inapplicable, the parties hereby consent to the exclusive jurisdiction and venue of the state and United States federal courts located in San Francisco, California for any actions, suits or proceedings arising out of or relating to these Terms. Both parties submit to the personal jurisdiction of those courts and waive any objection to venue in such courts.