This online Software as a Service Agreement (‘Agreement’) is incorporated by reference into each Order that you may enter into with Infield, Inc., a Delaware corporation (‘we,’ Infield,’ ‘our,’ ‘us’). ‘You’ means your employer or the entity you represent, its Affiliates and Users, or, if that does not apply, it means you as an individual. Each of you and us is a ‘Party,’ and collectively, you and we are the ‘Parties.’ Capitalized terms not defined herein shall have the meaning set forth in the applicable Order.
You must be at least eighteen (18) years old to use the Services.
While acting on behalf of your employer or another entity, or while acting on your own behalf as an individual, when you click ‘I Agree/I Accept/Sign Up/Pay Now’ (or similar button or checkbox) when registering for the Services, you are accepting this Agreement on behalf of your employer, another entity, or yourself, as applicable, and represent and warrant that: (i) you have full legal authority to bind your employer, such other entity, or yourself, as applicable, to the terms of this Agreement; (ii) you have read and understand the terms of this Agreement; and (iii) you agree to the terms of this Agreement on behalf of your employer, an entity that you represent, or yourself, as applicable.
If you do not agree with the terms of this Agreement, or you don’t have the legal authority to bind your employer or another entity, do not click ‘I Agree/I Accept/Sign Up’ (or similar button or checkbox) when presented to you. In this case, you may not use the Services.
PLEASE NOTE THAT IF YOU REGISTER FOR THE SERVICES USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU SHALL BE DEEMED TO REPRESENT SUCH PARTY, AND (B) YOUR CLICK TO ‘AGREE/ACCEPT/SIGN UP/PAY NOW’ (OR SIMILAR BUTTON OR CHECKBOX) WILL BIND YOUR EMPLOYER OR THE OTHER ENTITY TO THIS AGREEMENT.
This Agreement is effective as of the earliest of (i) the date you first complete registration for the Services by clicking ‘I Agree/I Accept/Sign Up/Pay Now’ (or similar button or checkbox), (ii) access the Services, or (iii) the effective date set forth on the initial Order (the ‘Effective Date’). For Evaluations, you also indicate your acceptance of the terms of this Agreement by your accessing or using the applicable Evaluation(s). This Agreement does not have to be signed in order to be binding.
Your right to access and use the Services, whether or not an Order has been signed between you and us, is expressly conditioned on your acceptance of this Agreement.
‘Affiliate’ means a company, corporation, individual, partnership or other legal entity that directly or indirectly controls, is controlled by, or is under common control with a Party to this Agreement. For purposes of this definition, ‘control’ means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.
‘California Privacy Law’ means the California Consumer Privacy Act of 2018 (CCPA) and any regulations promulgated thereunder, as amended by the California Privacy Rights Act of 2020 (CPRA).
‘California User Data’ means the personal information of consumers in California provided or made available by you to us.
‘Infield Content’ means all data, Documentation, reports, text, images, sounds, video, and content made available through the Site or the Software.
‘Confidential Information’ means any technical, financial, business or other information provided by one Party to the other Party, either designated as confidential or proprietary, or reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
‘Disclosing Party’ means the party that provides Confidential Information to the other Party.
‘Documentation’ means any manuals, instructions or other documents or materials that we provide or make available to you in any form or medium and which describe the functionality, components, features or requirements of the Software or Infield Content, including the Specifications and any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof, excluding any marketing or other publicly available materials.
‘Equipment’ means any and all hardware, servers, software, operating systems, networking, web servers, internet and telecommunications service(s) and ancillary services needed to connect to, access or otherwise use the Services.
‘Feedback’ means any suggestion, idea, improvement, enhancement request, recommendation, correction or other feedback provided by you or any User relating to the operation of the Services, which we may, in our sole discretion, utilize to design, debug, display, perform, copy, make, have made, use, sell, and otherwise dispose of in any manner that we may choose without remunerating or accrediting you.
‘Intellectual Property Rights’ means rights under any copyright, patent, trademark, trade secret and other intellectual property laws worldwide.
‘Non-Infield Applications’ means any internet-based or offline software application, such as a version control system (‘VCS’), that is provided by you or a third party and interoperates with the Services.
‘Order’ means any order form, or other ordering document, including any internet-based or email-based ordering mechanism or registration process (e.g., your account page in the Services) specifying the level of the Services to be provided hereunder and associated fees therefor that is entered into between you and us or any of our respective Affiliates, including any addenda and supplements thereto. By entering into an Order hereunder, any Affiliate of yours agrees to be bound by the terms of this Agreement as if it were you.
‘Personal Data’ means information that, alone or in combination with other information, could be used to identify a User.
‘Privacy Laws’ means all laws and regulations regarding data privacy and transmission of Personal Data that apply to our provision of the Services to you (e.g., storing and processing Your Data), including, without limitation, Articles 25(1) and 26(1) of EU Directive 95/46/EC of 24 October 1995, General Data Protection Regulation 2016/679 (GDPR) and California Consumers Privacy Act of 2018 (CCPA), as amended by the California Privacy Rights Act of 2020 (CPRA).
‘Privacy Policy’ means our Privacy Policy located at https://www.infield.ai/privacy/ or any successor URL.
‘Receiving Party’ means the Party that receives Confidential Information from the other Party.
‘Services’ means (i) the Site, (ii) the Software and related technologies, and (iii) all Infield Content, collectively.
‘Site’ means the web site located at https://www.infield.ai/ or any successor URL.
‘Software’ means our dependency management software as a service offering and any other software, including downloadable software, that may be made available by us to interoperate with the foregoing.
‘Specifications’ means the description of, minimum standards required, and the mode, means and mechanisms of action or functionality for the Services set forth in the Documentation.
‘Supplemental Terms’ means additional terms that apply to certain Services, including any product-specific terms that may be agreed by the Parties.
‘Support’ means free or paid ticket-based help with the Services.
‘Taxes’ means all applicable federal, state and local taxes, fees, charges, or other similar exactions, including, without limitation, sales and use taxes, excise taxes, VAT, GST, and other license or business and occupations taxes. Taxes do not include any Taxes that are imposed on or measured by our net income, property tax, or payroll taxes.
‘Term’ means the period during which you have agreed to subscribe to the Services.
‘Third-Party Content’ means information and data obtained by us from publicly available sources or our third-party content providers and made available to you and your Users through the Services, Evaluation Services or pursuant to an Order.
‘Usage Data’ means metrics and data relating to a User’s use of the Services. For the avoidance of doubt, Usage Data does not include your source code.
‘User’ means an individual who is authorized by you to use the Services. Users may include, for example, your employees, consultants, contractors, representatives and/or agents.
‘Your Data’ means any data, software, information, text, audio files, graphic files, content or other material received by the Services from you or any Users in the course of your accessing or using the Services, excluding Infield Content, Third-Party Content and Non-Infield Applications.
By entering into an Order or otherwise downloading, accessing or using the Services, you unconditionally accept and agree to all of the terms of this Agreement. This Agreement shall apply to all usage by you and each of your User(s) of the Services. We may modify this Agreement at any time by posting a revised version at https://www.infield.ai/tos/, and the revised version will become effective on the day it is published; provided, however, that if an Order specifies a fixed term of twelve (12) months or longer, the modifications will instead be effective immediately upon the start of the next renewal Term, if applicable. In either case, if any change to this Agreement is not acceptable to you, as your sole and exclusive remedy, you may choose not to renew, including canceling the auto-renewal of any Terms, in accordance with the terms set forth in Section 9. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.
If there are any conflicts between this Agreement and any Order, the Order takes precedence and prevails over this Agreement, solely with respect to the subject matter of the applicable Order.
From time to time, we may invite you to try certain features or products at no charge for a limited evaluation period, which may be designated or identified as beta, pilot, evaluation, trial or the like (collectively, ‘Evaluation(s)’). Your agreement to participate in an Evaluation is completely voluntary, and if you opt to participate in an Evaluation, you may opt out of participation at any time in writing. If you opt out of participating in an Evaluation for which you had originally opted in, your access to such Evaluation will be terminated. Notwithstanding the foregoing, we may discontinue our Evaluation program in whole or in part at any time in our sole discretion and we reserve the right to decide whether to make features provided in an Evaluation generally available. DUE TO THE NATURE OF EVALUATIONS AND THEIR VOLUNTARY PARTICIPATION, EVALUATIONS ARE PROVIDED WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, AND WE SHALL HAVE NO LIABILITY TO YOU OR ANY THIRD PARTY RESULTING FROM OR RELATING TO THE EVALUATION, UNLESS SUCH EXCLUSION IS NOT ENFORCEABLE UNDER APPLICABLE LAW. IF LIABILITY EXCLUSION IS NOT ENFORCEABLE UNDER APPLICABLE LAW, OUR LIABILITY ARISING UNDER CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY WITH RESPECT TO THE EVALUATION SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00).
We Own the Services. We and our licensors own and retain all right, title and interest in and to the Services, Documentation, Usage Data and Feedback and all associated Intellectual Property Rights therein. Except as provided in Section 6(a) below, we don't grant you or your Users any further rights pursuant to this Agreement.
You Own Your Data. You own and retain all rights, title and interest in and to Your Data and all associated Intellectual Property Rights therein. Subject to the limited licenses granted herein, we acquire no right, title or interest from you or your licensors under this Agreement in or to Your Data.
License Grants. Subject to the terms of this Agreement, each Order and your payment of all Fees, we hereby grant to you and your Users a worldwide, non-exclusive, non-sublicensable, non-transferable license to access and use (and where applicable, download and install) the Software during the applicable Term.
You hereby grant us, our Affiliates and licensors a worldwide, non-exclusive, royalty-free, fully paid, sublicensable, non-transferable (except as specified in Section 15(b)), license to receive, host, store, analyze, process, enhance, copy, transmit, create derivative works of, maintain and display Your Data that you or your User(s) post(s) to the Services (either directly or via a Non-Infield Application) solely to administer and provide the Services in accordance with this Agreement.
If You use a Non-Infield Application with the Services, you grant us a license to provide the Non-Infield Application and its provider with access to Your Data and information about your and your Users’ usage of the Services, as appropriate, for the interoperation of that Non-Infield Application with the Services.
Obligations. You shall use the Services only for lawful purposes in accordance with this Agreement as expressly licensed herein, including, without limitation, with your obligations set forth in this Section 6, the Documentation, and applicable laws and government regulations. You shall (i) be responsible for your Users’ compliance with this Agreement; (ii) be responsible for the quality and legality of Your Data and the means by which you acquired Your Data; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify us promptly of any such unauthorized access or use of which you becomes aware; (iv) provide all necessary disclosures to your Users and obtain all necessary consents from such Users, in each case to the extent necessary to share such Users’ Personal Data with us and for us and our Affiliates, licensors and service providers to use such Personal Data to provide the Services; and (v) comply with the terms of service of the Non-Infield Applications that you use with the Services. You shall promptly notify us of any suspected or alleged violation of this Agreement and shall cooperate with us with respect to: (i) our investigation of any suspected or alleged violation of this Agreement and (ii) any action taken by us to enforce this Agreement. If we send you a notice that any Third-Party Content or a Non-Infield Application must be modified, disabled and/or removed from the Services to avoid violating applicable law, third-party rights, or the terms of this Agreement, you shall promptly do so. You shall confirm such modification, disablement or removal of such Third-Party Content or Non-Infield Application in writing upon our request, and you hereby authorize us to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. You are responsible for maintaining the security of your accounts, usernames and passwords and files, and for all uses of your and any User’s account. We shall not be liable for any loss or damage from your or any of your User’s failure to comply with this security obligation.
Consequences. We may, in our sole discretion, suspend or terminate your or any of your User’s access to the Services with or without advance written notice to you if we reasonably determine that you or your User has violated this Section 6. If you do not remove Third-Party Content or a Non-Infield Application upon notice from us, or if, in our judgment, continued violation is likely to reoccur, we may disable or remove the Third-Party Content and/or the Non-Infield Application from the Services. You will be liable for any violation of this Agreement by any of your Users.
Creation of Infield Account. As part of the registration process for the Services, you will create an Infield account by either providing your email address and a password or by authorizing the Infield application through a Non-Infield Application (e.g., GitHub via OAuth). Account information must be accurate, current, and complete, and is governed by our Privacy Policy. You are responsible for maintaining the confidentiality of your account(s), and for any activities performed using your account(s). We reserve the right to access your and your Users’ account(s) in order to respond to your and your Users’ requests for technical support. We retain the right, but not the obligation, to monitor the Services and Your Data.
Provision of Services and Support. We shall make the Services available to you pursuant to this Agreement and the applicable Order. We will provide you with free Support for the Services, and you may be eligible to purchase upgraded Support depending on your plan type. We will use commercially reasonable efforts to make the Services available 24 hours per day, 7 days per week, except for: (i) planned downtime, of which we will attempt to provide reasonable electronic notice of (ii) any unavailability caused by unscheduled emergency maintenance either by us or our third-party vendors or hosting providers, or (iii) a Force Majeure event, the failure or delay of an internet service provider or Non-Infield Application, or any denial of service attack, for which we may or may not provide notice.
Non-Infield Applications. You may enable or log in to our Services through various Non-Infield Applications, such as a VCS. You may authenticate, register for, and/or log into Non-Infield Applications on such application’s website. The Non-Infield Applications provide us with certain information that you have provided to such Non-Infield Applications, and we will use, store and disclose such information in accordance with our Privacy Policy. The manner in which Non-Infield Applications use, store and disclose your and your Users’ information is governed solely by the policies of the third parties operating the Non-Infield Applications, and we shall have no liability or responsibility for the privacy practices or other actions of any third-party site, application or service that may be enabled within the Services. In addition, we are not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Non-Infield Applications. We shall not be liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Non-Infield Applications. We enable access to Non-Infield Applications merely as a convenience, and the integration or inclusion of such does not imply that we endorse or recommend any Non-Infield Applications.
Software Updates. We continuously update our Software, so when you log in to the Services, you are using the newest Software version.
Equipment. You are responsible for obtaining and maintaining any Equipment you need to use the Services and ensuring that such Equipment is compatible with the Services (and, to the extent applicable, the Software) and complies with all configurations and Specifications set forth in the Documentation. We shall have no liability to you for any damage caused to your servers resulting from using the Services. You are responsible for maintaining the security of the Equipment and for all uses of the Equipment.
Payment. You shall pay us the fees set forth in each Order by and between you and us, in accordance with the terms set forth therein and this Agreement (‘Fees’). All amounts paid or payable are non-refundable, non-cancelable and non-creditable. Unless otherwise stated in an Order, you are responsible for and will pay all Taxes imposed on or with respect to the Services that are the subject of this Agreement. If you are a tax-exempt organization, you will supply official exemption documentation to us. If you are paying any Fees by credit card, you shall provide complete and accurate information regarding the applicable credit card. You represent and warrant that all such information is correct and that you are authorized to use such credit card. You shall promptly update your account information with any changes (for example, a change in billing address or credit card information) that may occur. You hereby authorize us to bill such credit card (1) in advance on a periodic basis, in accordance with the terms of this Agreement and an Order; and (2) in arrears for any applicable overages, in accordance with the terms of this Agreement and an Order, and you further agree to pay any and all charges so incurred. You shall maintain, and we shall be entitled, to audit any records relevant to your or any of your Users’ use of the Services hereunder. We may audit such records on reasonable notice at our cost (or if the audit reveals material non-compliance with this Agreement, at your cost).
Modification of Fees. We reserve the right to modify the Fees for the Services under one or more Orders, by notifying you in writing of the change in Fees before the end of the then-current Term.
Changes to Support and Services. You may request Support and/or Services upgrades at any time. Upon receipt of such request, we will promptly upgrade the Support level and bill you for such upgrade, prorated for the remaining Term of your current billing cycle. You may downgrade Support upon the commencement of the first renewal Term after notice of such downgrade. We do not provide mid-term downgrades. You acknowledge that Support upgrades provide additional features and decreased response times, while support downgrades remove features and increase response times.
Past Due Payments. If you owe any amount under this Agreement for the Services and it is ten (15) or more days overdue, we may, in our sole discretion and without limiting our other rights and remedies, suspend your and your Users' access to the Services and Support and/or otherwise limit the functionality of the Services and Support until such amounts are paid in full. We may also, in our sole discretion, terminate the account in accordance with Section 9(b) below. If we suspend, limit, or terminate the Services pursuant to this Section 8(d), then we will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur in connection with any such actions.
Future Functionality. You agree that your purchase is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Infield regarding any future functionality or features.
Term of Agreement and Orders. This Agreement will begin on the Effective Date and continue in effect until terminated. Each Party may terminate this Agreement with thirty (30) days’ advance written notice if all Terms of Orders for the Service have expired or are terminated in accordance with Section 9(b). The Term of each Order will be set forth therein, starting on the Effective Date of the Order and continuing for the time period specified. If you purchase Services on a month-to-month basis or take advantage of the free version of our Services, your Term will automatically renew for a subsequent renewal term of equal length to the then-current Term. This will continue until you notify us (or we notify you), prior to the end of the then-current Term, that the Term will not renew, or you or we terminate in accordance with Section 9(b)(i). If you do not use the Services for more than six (6) consecutive months, we may, in our sole discretion, terminate your Account and delete Your Data in accordance with Section 9(b)(ii) below. Neither Party shall have the right to terminate this Agreement without legally valid cause (aka, ‘for convenience’).
Either Party may terminate any Order in accordance with its terms. Either Party may terminate any Order for cause upon written notice if the other Party fails to cure any material breach thereof within thirty (30) days after receiving a reasonably detailed written notice from the other Party alleging the breach. We may terminate any Order for cause upon written notice (i) within ten (10) days in the case of non-payment; and (ii) immediately in the case of your breach of Section 6(c). Upon any termination of this Agreement due to our uncured material breach of this Agreement, we will provide you with a refund of any prepaid but unused Fees on a prorated basis. Termination is not an exclusive remedy, and all other remedies shall be available regardless of whether termination occurs.
Regardless of the basis for expiration or termination of this Agreement, (i) upon expiration or termination of an Order or this Agreement, we will terminate your access to the Software, Support and Infield Content and (ii) we shall not be obligated to retain Your Data for longer than thirty (30) days after any such expiration or termination. Once the thirty (30) day retention period has ended, we may, in our sole discretion, permanently delete Your Data from the Services. You will destroy all copies of all Infield Content and all portions thereof in your possession and certify such destruction to us if requested by us.
All provisions of this Agreement which by their nature should survive expiration or termination, including without limitation, Sections 3 (Agreement Structure and Order of Precedence), 5 (Ownership), 9 (Term and Termination), 10 (Your Indemnification of Us), 11 (Warranties and Disclaimer), 12 (Limitation of Liability), 13 (Confidentiality), 14 (Privacy, Security and Continuity), and 15 (Miscellaneous) shall survive any expiration or termination of this Agreement. The applicable Orders may identify additional terms that shall survive any expiration or termination of this Agreement.
Your Indemnification of Us. You shall defend, indemnify and hold harmless us and our Affiliates, and each of their respective officers, directors, employees and agents (the ‘Infield Indemnitees’) from all damages, settlements, attorneys’ fees and expenses related to any third-party claim, suit or demand (i) arising from your or your User’s use of the Services in breach of this Agreement or in violation of applicable law, or (ii) alleging that Your Data infringes or misappropriates such third party’s Intellectual Property Rights or violates applicable law; provided you are promptly notified of any and all threats, suits, claims and proceedings related thereto and given reasonable assistance by the applicable Infield Indemnitees (at your cost). Each applicable Infield Indemnitee reserves the right to assume the exclusive defense and control of any matter that is subject to indemnification under this Section 10. In such case, you agree to cooperate with any reasonable requests in assisting each applicable Infield Indemnitee’s defense of such matter.
Warranties. During the Term, we warrant, for your benefit only, that (i) we have the full legal authority to bind ourselves to the terms of this Agreement; and (ii) the Software and Services shall be provided in a professional and workmanlike manner. You represent and warrant that you: (i) have the full legal authority to bind yourself to the terms of this Agreement and (ii) have read, understand and agree to the terms of this Agreement.
Disclaimer. EXCEPT AS PROVIDED HEREIN, THE SERVICES, EVALUATIONS, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN ‘AS IS’ AND ‘AS AVAILABLE’ BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND Infield DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL WE OR OUR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO YOU, ANY USER OR ANY THIRD-PARTY FOR ANY (i) INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, GOODWILL, OR OTHER INTANGIBLE LOSSES; OR (ii) COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF WHETHER WE HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, OUR AGGREGATE LIABILITY TO YOU, YOUR AFFILIATES, OR ANY THIRD PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, SHALL IN NO EVENT EXCEED THE GREATER OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR OR YOUR USER’S CLAIM OR ONE HUNDRED DOLLARS (US$100.00). YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 12 IS TO ALLOCATE THE RISK UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU OR SOME USERS. IN SUCH JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
All Confidential Information shall be held in confidence and will not be disclosed or used except to the extent necessary to carry out the Receiving Party’s obligations or express rights hereunder, except as otherwise authorized by the Disclosing Party in writing. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care). These obligations shall not apply to information that (i) was previously known by the Receiving Party, as demonstrated by documents or files in existence at the time of disclosure; (ii) is generally and freely publicly available through no fault of the Receiving Party; (iii) the Receiving Party otherwise rightfully obtains from third parties without restriction; or (iv) is independently developed by the Receiving Party without reference to or reliance on the Disclosing Party’s Confidential Information, as demonstrated by documents or files in existence at the time of disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled to do so by law, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information. In the event that such protective order or other remedy is not obtained, the Receiving Party will furnish only that portion of the Confidential Information that is legally required and use commercially reasonable efforts to obtain assurance that confidential treatment will be accorded the Confidential Information.
Privacy. We will use Your Data only as permitted by Privacy Laws, our Privacy Policy and this Agreement. You represent that you have read our Privacy Policy and understand that it sets forth how we will collect, store, use and disclose Your Data including Personal Data. If you do not agree with our Privacy Policy, then you must stop using the Services immediately. We encourage you to periodically review our Privacy Policy, as it may change from time to time. Each Party shall comply with its own obligations under the applicable Privacy Laws. In this regard, you will be solely responsible for providing any notices required by applicable Privacy Laws to, and receiving any consents and authorizations required by applicable Privacy Laws from, persons whose Personal Data may be included in the Your Data.
California Privacy Law. For clarity under this Section 14(b), the terms ‘business’, ‘business purpose’, ‘commercial purpose’, ‘consumer’, ‘personal information’, ‘sensitive personal information’, ‘sell’, ‘share’ and ‘service provider’ have the meanings set forth in the California Privacy Law. The parties agree that we are acting as a service provider in connection with this Agreement with respect to the California User Data, and that we receive the California User Data from you pursuant to a business purpose. You represent and warrant to us that you (i) are acting as a business in connection with this Agreement with respect to the California User Data, and (ii) are sharing and making available California User Data to us pursuant to a business purpose and in accordance with the California Privacy Law. The Parties agree to comply with their own applicable obligations under and provide the same level of privacy protection to California User Data as required by California Privacy Law.
Our Obligations. We agree not to (i) sell or share California User Data or (ii) retain, use or disclose California User Data (1) for any purpose other than for the specific purpose of performing the Services or for a commercial purpose other than providing the Services, or (2) outside of the direct business relationship between you and us, including by not combining any California User Data with other personal information collected or received from another source except as otherwise permitted under the California Privacy Law.
Your Obligations and Rights. You agree that (i) you will only disclose California User Data to us for the limited purpose of using the Services in accordance with the Agreement, and (ii) you represent that the California User Data does not contain sensitive personal information. If we engage in an unauthorized use of California User Data, you may, upon reasonable notice to us, take reasonable and appropriate steps to stop and remediate the unauthorized use of the California User Data.
Security of the Services; Protection of Your Data. We shall maintain reasonable administrative, physical, and technical safeguards to protect the security, confidentiality and integrity of Your Data. Those safeguards will include measures designed to prevent unauthorized access to or disclosure of Your Data (other than by you). We shall not be responsible or liable for any deletion, correction, damage, destruction or loss of Your Data that does not arise from a breach of our obligations under this Section 14(c).
Data Transmission and Encryption. Your Data is encrypted at rest and in transit as it traverses private networks and the internet. While we maintain a Data Backup Policy that requires restoration capabilities within common industry timelines, you bear sole responsibility for adequate backup of Your Data. We shall have no liability to you for any corruption, deletion, destruction or loss of any of Your Data resulting from your failure to backup such data.
Business Continuity & Disaster Recovery. Throughout the Term, Infield shall implement and maintain commercially reasonable business continuity and disaster recovery plans to help ensure availability of the Your Data following any significant interruption or failure of critical business processes or systems affecting the Services.
Governing Law; Venue; Attorney’s Fees. This Agreement shall be governed by and construed pursuant to New York law and controlling United States federal law, without regard to the conflicts of law provisions of any jurisdiction. The Parties (i) hereby generally, irrevocably and unconditionally submit to the exclusive jurisdiction of the federal and state courts in the county of New York, NY for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement; (ii) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in such state and such courts; and (iii) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court. This choice of jurisdiction does not prevent either Party from seeking injunctive relief in any appropriate jurisdiction with respect to a violation of Intellectual Property Rights. The Services are a service, not goods, and are not subject to the Uniform Commercial Code, or the United Nations Convention on the International Sale of Goods. If any action is necessary to enforce the terms of this Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees, costs and expenses, in addition to any other relief that such prevailing Party may be entitled.
Assignment. Neither Party may assign or otherwise transfer (by operation of law or otherwise) this Agreement, or any of a Party’s rights or obligations under this Agreement, to any third party without the other Party’s prior written consent, which consent must not be unreasonably withheld, delayed or conditioned; provided, however, that either Party may assign or otherwise transfer this Agreement, including all associated Orders (and all its rights and obligations thereunder), (i) to a successor-in-interest in connection with a merger, acquisition, reorganization, a sale of all or substantially all of its assets, or other change of control, or (ii) to any of its Affiliates. In the event of such a permitted transfer by you, the rights granted under this Agreement shall continue to be subject to the same usage limitations that applied under applicable Order prior to the transfer (e.g., any transaction volume terms and limitations particular to your legal entities, business units, projects, brands, products and/or services set forth therein). Any purported assignment or other transfer in violation of this Section is void. Subject to the terms of this Section, this Agreement shall bind and inure to the benefit of the Parties and their respective permitted successors and transferees. There are no third-party beneficiaries under this Agreement.
Force Majeure. Except for the payment obligations hereunder, if either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond its reasonable control, e.g., war, riots, labor unrest, fire, earthquake, flood, hurricane, other natural disasters and acts of God, internet service failures or delays, and denial of service attacks (collectively, ‘Force Majeure’), the affected Party’s performance shall be excused for the resulting period of delay or inability to perform. The affected Party must, however, (a) give the other Party prompt written notice of the nature and expected duration of such Force Majeure, (b) use commercially reasonable efforts to mitigate the period of delay or inability to perform, (c) periodically notify the other Party of significant changes in the status of the Force Majeure, and (d) notify the other Party promptly when the Force Majeure ends.
Independent Contractors. The Parties are independent contracting parties. Neither Party has, or shall hold itself out as having, any right or authority to incur any obligation on behalf of the other Party. The Parties’ relationship in connection with this Agreement shall not be construed as a joint venture, partnership, franchise, employment, fiduciary, or agency relationship, or as imposing any liability upon either Party that otherwise might result from such a relationship. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
Notices. We will send billing-related notices to you by email to the accounts payable contact you designate. You may email us billing-related notices. We will provide platform-related notices to you by email and/or the platform. Email notices shall be deemed to have been given on the day the email is sent. Notices for material breach or an indemnifiable claim must be in writing and shall be deemed to have been given upon personal delivery or delivery confirmation by nationally or internationally recognized overnight delivery service. We will provide written notice to you at the address you provide on your Order.
Anti-Corruption. Each Party shall comply with applicable United States laws concerning anti-bribery and anti-corruption, which includes the United States Foreign Corrupt Practices Act of 1977 as may be amended. As of the date of this Agreement and the date of each Order, you acknowledge that you have not received or been offered any illegal or otherwise improper bribe, kickback, payment, gift or other thing of material value by any of our employees, representatives or agents in connection with this Agreement. You shall use reasonable efforts to promptly notify us if you become aware of any circumstances that are contrary to this acknowledgment.
Government Users. If you are a U.S. Government Agency, or this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR) and any applicable Agency-specific FAR Supplements, you acknowledge that the Services constitute ‘commercial computer software’ and ‘commercial computer software documentation’ as such terms are used in FAR 12.212, DFARS 252.227-7014 and DFARS 227.7202. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Services shall be as provided in this Agreement, except that, for U.S. Department of Defense customer, technical data customarily provided to the public is being furnished in accordance with DFARS 252.227-7015. If a U.S. Government Agency needs additional rights, it must negotiate a mutually acceptable written specially negotiated license to be incorporated as an addendum to this Agreement that will specifically grant those rights.
Publicity. Unless you notify us otherwise, we may use your name, logo and marks to identify you as a customer on our Site and other marketing materials.
Execution. This Agreement and any Order may be signed electronically and in counterparts, in which case each signed copy shall be deemed an original as though both signatures appeared on the same document. For purposes of this Section 15(j), clicking ‘I Agree/I Accept/Sign Up’ (or similar button or checkbox) when registering for the Services is deemed your electronic signature.
Severability. If any provision of this Agreement or any Order shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement and any applicable Order shall otherwise remain in full force and effect and enforceable.
Waiver. A Party’s failure or delay in exercising any right hereunder shall not operate as a waiver thereof, nor shall any partial exercise of any right or power hereunder preclude further exercise.
Entire Agreement. This Agreement, together with all applicable Orders (including any other terms referenced in any of those documents), comprises the entire agreement between the Parties regarding the subject matter of this Agreement, and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding such subject matter.
