During the provision of the Services, The Company may have access to certain data or information concerning the end users and your customers ( “Information”). The Information shall be deemed your Confidential Information and The Company shall not disclose such data to third parties or use such data except for the provision of Services hereunder, provided however that The Company may use such data for its own internal purposes such as the general improvement of its Services or in order to recommend Services to third parties.
You shall maintain Information in accordance with all applicable privacy and data protection law and regulation including for avoidance of doubt the General Data Protection Regulations ( “GDPR”), as may be amended from time to time.
You confirm that you have commercially reasonable physical, technical, organizational and administrative security measures and policies in place to protect all Information in your possession, or by your authorized personnel acting on your behalf, from and against unauthorized access, use and/or disclosure including without limitation in accordance with the GDPR.
You represent and warrant that no action, claim, proceeding, compliant, inquiry, audit or investigation is pending or, to your best knowledge, threatened against you or any of your officers, directors, or employees (in their capacity as such) by any private party or any governmental authority, foreign or domestic, with respect to data and/or privacy laws and regulations. You are and have been in compliance in all material respects with all laws relating to data loss, theft and breach of security notification obligations and shall maintain full compliance during the Term, including without limitation under the GDPR. There has been no material loss, unauthorized access to or other misuse by or on behalf of you of such data, and, to your knowledge, no third party misused any data collected by it.
The Company is not a data retention service. You must create backups of your data, and The Company shall have no responsibility or liability in respect of any loss off or damage to any of your data.
You will defend, indemnify and hold harmless The Company for any damages, losses, costs and expenses resulting from any third party claims to the extent relating to: (a) a breach by you of your representation or warranties hereunder; (b) use or misuse of the Services; (c) infringement of a third party's intellectual property or other right. The Company will (i) provide you with prompt written notice of any claim for which indemnification is sought; (ii) cooperate fully with you in defending the applicable claim; and (iii) provided you diligently defend the claim with reputable and recognized legal counsel, allow you to control the defense and settlement of such claim. No settlement may be entered into without the consent of The Company if such settlement would require any action from or impose any obligation on The Company. Subject to the foregoing, the Company will at all times have the option to participate in any matter or litigation through counsel of its own selection at its own expense.
Limitation of Liability
IN NO EVENT SHALL THE COMPANY BE LIABLE TO YOUR OR ANY THIRD PARTY FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO INCIDENTAL, CONSEQUENTIAL, INDIRECT, DIRECT, SPECIAL OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATING TO THE SERVICES OR THIS TERMS OF SERVICE. IN NO EVENT SHALL THE COMPANY'S MAXIMUM CUMULATIVE LIABILITY UNDER ANY CAUSE OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE AMOUNTS PAID BY CUSTOMER TO THE COMPANY FOR THE SERVICES IN RESPECT OF THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH A CLAIM OR CAUSE OF ACTION AROSE
Term and Termination
The term of this Terms of Service shall commence as of the Effective Date and shall continue for a period of one year thereafter (the "Initial Term"). Following the Initial Term, this Terms of Service shall automatically renew for subsequent terms of one year each (each a "Renewal Term" and, together with the Initial Term, the "Term") unless one of the parties provides the other with written notice of its desire not to renew this Terms of Service at least 30 days prior to the applicable Renewal Term. The Parties may agree in writing to different term and termination provisions. Either party may terminate this Terms of Service if the other party breaches its obligations under this Terms of Service and does not cure such breach within 5 days of the receipt of written notice thereof. Upon the termination or expiration of this Terms of Service (a) The Company shall cease the provision of all Services hereunder; and (b) You shall make prompt payment of all amounts due hereunder, including but not limited in respect of any uncompleted work performed by The Company. Any understandings between the Parties in writing may contain additional terms regarding the termination of this Terms of Service. Sections 2, 6, 8 – 15 and 18 shall survive the termination or expiration of this Terms of Service for any reason. Except as otherwise set forth herein or in any other understanding between the Parties in writing, no party shall have any liability for the termination of this Terms of Service in accordance with its terms.
The Company may subcontract its rights and obligations hereunder, provided that The Company shall at all times retain the responsibility and liability to you for the performance of the Services hereunder. The parties are independent contractors and neither party nor its personnel shall be deemed an employee, partner, agent or joint venture partner. Each party is solely responsible and liable for the taxes, insurance premiums and employment benefits of its personnel. This Terms of Service is non-exclusive; nothing herein prohibits The Company from creating or offering any similar product or service or entering into any similar agreement with any other party.
You agree that The Company may disclose that you are a customer of The Company and are receiving the Services, including by displaying your name and logo on The Company’s website and other marketing materials.
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