Terms of Use

1. DEFINITIONS

1.1 Affiliates means any company, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with a Party. For purposes of this definition “control” means the direct possession of a majority of the outstanding voting shares of an entity.

1.2 Confidential Information has the meaning given to it in Section 4.1.

1.3 Customer Data means all Data made available by the Customer or its Users to Heretto or otherwise provided by the Customer or its Users in connection with the provision of the Services or otherwise uploaded by or on behalf of Customer or its Users into the Subscription Service.

1.4 Data means text, images, documents, materials, photos, audio, video, and all other forms of data or communication.

1.5 Order Form means each Heretto ordering document electronically entered into or signed by duly authorized representatives of both Parties which references this Agreement, identifies the specific Services provided to the Customer by Heretto, sets out the prices for the Services and contains any other applicable terms and conditions. For purposes of this Agreement, references herein to Order Forms also include, where applicable, a Statement of Work for Professional Services.

1.6 Heretto Data means all Data made available by Heretto to the Customer in connection with the Customer’s use of the Services. Heretto Data does not, however, include Customer Data.

1.7 Professional Services means implementation, training, consulting and/or custom services to be provided by Heretto. All Professional Services will be set out and described in an Order Form or a Statement of Work.

1.8 Services means the Subscription Service and any Professional Services provided by Heretto. 

1.9 Statement of Work or SOW means a Statement of Work referencing this Agreement and entered into by both Parties from time to time that describes the Professional Services to be provided by Heretto and any other related terms as agreed in writing between the Parties‍1.10 Subscription Service means Heretto’s proprietary subscription-based software solutions all as more fully set out and described on the applicable Order Form. 

1.11 Third-Party Applications means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Subscription Service, and are identified as third-party applications

1.12 User Guide means the online user guide for the Subscription Service, accessible via http://docs.easydita.com, as updated from time to time. 

1.13 Users means individuals who are authorized by Customer to use the Subscription Service, for whom subscriptions to the Subscription Service have been purchased, and who have been supplied user identifications and passwords by Customer (or by Heretto at Customer’s request). Users may include but are not limited to Customer employees, consultants, contractors and agents; or third parties with which Customer transacts business.  Users may be limited to certain roles such as authors, admins, reviewers and editors, all as more fully described in the applicable Order Form.  

1.14 Work Product means any deliverables, content, reports, analyses or documentation developed by Heretto in the performance of any Professional Services.   

2. SERVICES

2.1 Services.  Heretto shall provide the Customer with the specific Services specified on an Order Form or SOW, as the case may be. Any conflict between the terms and conditions set forth in this Agreement and any Order Form  or SOW shall be resolved in favor of this Agreement unless an Order Form or SOW makes specific reference to the section of this Agreement that is to be amended in the  Order Form or SOW.  Any exceptions expressly agreed upon in writing by the Parties pursuant to a particular Order Form or SOW will apply only for purposes of that Order Form or SOW, and will not be deemed to in any way amend, modify, cancel, or waive the provisions of this Agreement for any other Order Form. Or SOW Customer agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Heretto regarding future functionality or features.

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2.2 License Grant.  Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees set out on the applicable Order Form, Heretto hereby grants to the Customer, solely during the term of the applicable Order Form, a non-exclusive, non-transferable (except as set out in Section 11.2) license to access and use the Subscription Service solely for the Customer’s internal business purposes.  This license is restricted to use by the Customer and its authorized Users and does not include the right to use the Subscription Service on behalf of any third party unless otherwise stated on the Order Form in relation to Affiliates.  The Customer agrees: (a) that only Users are permitted to use the Subscription Service; (b) that it is responsible for Users’ actions or failures to act in connection with activities contemplated under this Agreement and (c) to otherwise take all commercially reasonable steps to protect the Subscription Service from unauthorized use and/or access.  

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2.3 Licensed Volume.  The Customer acknowledges that access and use of the Subscription Service is licensed to the Customer for use up to the number of applicable Users, the number of components in content management, the number of calls Customer is permitted to make against Heretto’s application programming interface or other metric purchased by the Customer and set out on the applicable Order Form (the “Volume Limitations”).  In the event that the Subscription Service is used in excess of the Volume Limitations then the Customer shall be obligated to pay Heretto for the number of applicable licenses or usage, in excess of such Volume Limitations at the rates set forth in the Order Form. The Customer may also add licenses for additional Users by executing a new Order Form or an amendment to an existing Order Form at any time.

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2.4 Affiliates Not Under Direct Order Form.  If permitted in the applicable Order Form, the Customer may make the Subscription Service available to its Affiliates provided that all licensing restrictions are complied with in each instance by each such Affiliate and that the Customer shall be liable for any breach of the terms and conditions of this Agreement by any of its Affiliates.  Any license restrictions set out on an Order Form shall be deemed to apply to both the Customer and its Affiliates.  By way of example, if an Order Form limits use of the Subscription Service to twenty (20) Users, then the use by the Customer and its Affiliates, when aggregated together, shall not exceed a total of twenty (20) Users.  Customer shall be liable for any breach of the terms and conditions of this Agreement by any of its Affiliates – except where the Affiliate has signed its own Order Form with Heretto for the Services pursuant to Section 2.5.

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2.5 Affiliates Under Direct Order Form.  Customer’s Affiliates may also acquire Services subject to the terms and conditions of this Agreement by executing Order Forms hereunder directly with Heretto.  Each Order Form executed by an Affiliate hereunder shall incorporate the terms of this Agreement by reference and be deemed to be a two party agreement between Heretto and such Affiliate. Each Affiliate executing an Order Form shall be solely responsible for its obligations pursuant to such Order Form as well as for the obligations to be performed pursuant to this Agreement and the liabilities arising out of this Agreement as if it was the named party instead of Customer.  Customer shall have no obligations or liabilities as to such Order Form signed by its Affiliate and Heretto shall look solely to the Affiliate executing such Order Form.

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2.6 Acquisition of Third-Party Products and Services. Heretto may offer Third-Party Applications for sale under Order Forms. Any other acquisition by Customer of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between Customer and any third-party provider, is solely between Customer and the applicable third-party provider. Heretto does not warrant or support third-party products or services, whether or not they are designated by Heretto as “certified” or otherwise, except as specified in an Order Form. No purchase of third-party products or services is required to use the Subscription Services.  Heretto may in its discretion replace a Third-Party Application either (a) with another Third-Party Application having substantially similar functionality or (b) by including into the Subscription Service a substantially similar functionality to the replaced Third-Party Application.  If Customer installs or enables Third-Party Applications for use with Subscription Service, Customer acknowledges and consents that Heretto may allow providers of those Third-Party Applications to access Customer Data as required for the interoperation of such Third-Party Applications with the Subscription Service. Heretto shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Third-Party Application providers. The Subscription Service shall allow Customer to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Subscription Service.

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3. FEES; PAYMENT TERMS

3.1 Fees.  Customer shall pay all fees specified in all Order Forms and SOWs hereunder. Except as otherwise specified herein or in an Order Form or SOW, (i) fees are quoted and payable in United States dollars (ii) fees are based on Services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the level of subscription purchased cannot be downgraded during the relevant subscription term stated on the Order Form. Unless designated on an Order Form as a month-to-month subscription, Subscription Service fees are based on annual periods that begin on the subscription start date and each annual anniversary thereof. 

3.2 Invoicing and Payment. Customer will provide Heretto with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Heretto. If Customer provides credit card information to Heretto, Customer authorizes Heretto to charge such credit card for all fees listed in the Order Form and SOW. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form or SOW. If the Order Form or SOW specifies that payment will be by a method other than a credit card, Heretto will invoice Customer in advance and otherwise in accordance with the relevant Order Form or SOW. Unless otherwise stated in the Order Form or SOW, invoiced charges are due net 30 days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information in the Subscription Service. If any charges are not received from Customer by the due date and are not subject to a good faith dispute pursuant to Section 3.4, then at Heretto’s discretion (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) Heretto may condition future subscription renewals and Order Forms on payment terms shorter than those specified in this Section 3.2.

3.3 Taxes. Unless otherwise stated, fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Heretto has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 3.3, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Heretto with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Heretto is solely responsible for taxes assessable against Heretto based on its income, property and employees.

3.4 Disputed Charges.  If the Customer disputes any charge or amount on any invoice and such dispute cannot be resolved promptly through good faith discussions between the Parties, the Customer shall pay the amounts due under this Agreement less the disputed amount, and the Parties shall proceed in good faith to promptly resolve such disputed amount.  An amount will be considered disputed in good faith if (i) the Customer delivers a written statement to Heretto on or before the due date of the invoice, describing in detail the basis of the dispute and the amount being withheld by the Customer, and (ii) all other amounts due from the Customer that are not in dispute have been paid as and when required under this Agreement
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4. CONFIDENTIALITY 

4.1 Confidential Information.  During the term of this Agreement, each Party will regard any information provided to it by the other Party and designated in writing as proprietary or confidential to be confidential ("Confidential Information"). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing Party’s business and the industry in which it operates, is of a confidential or proprietary nature. The Customer Data shall be deemed Customer’s Confidential Information. The receiving Party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, outside consultant, or advisor (collectively “Representatives") who have a need to know such Confidential Information in the course of the performance of their duties for the receiving Party and who are bound by a duty of confidentiality no less protective of the disclosing Party’s Confidential Information than this Agreement. The receiving Party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing Party. Each Party accepts responsibility for the actions of its Representatives and shall protect the other Party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. The Parties expressly agree that the terms and pricing of this Agreement are Confidential Information and the Customer further agrees that neither it or any of its Users shall not publicly post any analysis or reviews of the Services without Heretto’s prior written approval. A receiving Party shall promptly notify the disclosing Party upon becoming aware of a breach or threatened breach hereunder and shall cooperate with any reasonable request of the disclosing Party in enforcing its rights.

4.2 Exclusions.  Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing Party, without any obligation of confidentiality; (ii) becomes known to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement by the receiving Party; or (iv) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.  The receiving Party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing Party reasonable prior written notice to permit the disclosing Party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.

4.3 Injunctive Relief.  Notwithstanding any other provision of this Agreement, both Parties acknowledge that any use of the disclosing Party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate.  Therefore, both Parties agree that, in addition to any other remedy to which the disclosing Party may be entitled hereunder, at law or equity, the disclosing Party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.

4.4 No Sensitive Personal Information. Customer agrees not to use the Subscription Service to collect, process, or manage any sensitive personal information, including but not limited to any protected health information, confidential health information, or sensitive medical information. Heretto will not be responsible for any liability resulting from Customer’s use of the Subscription Service to collect or process sensitive personal information.
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5. WARRANTIES

5.1 Availability.  Heretto will undertake commercially reasonable efforts to make the Subscription Service available twenty-four (24) hours a day, seven (7) days a week in accordance with its service level agreement as outlined on its website and updated periodically.  Notwithstanding the foregoing, Heretto reserves the right to suspend Customer’s access to the Subscription Service: (i) for scheduled or emergency maintenance (Customer will be provided notice via the Subscription Service of any scheduled maintenance at least 8 hours’ in advance and Heretto shall schedule such maintenance to the extent practicable during the weekend hours from 6:00 p.m. Pacific time Friday to 3:00 a.m. Pacific time Monday), (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Heretto (beyond any applicable notice and cure period), (iii) if Customer’s use of the Subscription Service results in (or is reasonably likely to result in) damage to or material degradation of the Subscription Service that could interfere with Heretto’s ability to provide access to the Subscription Service to other users, or (iv) if Heretto receives an order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body, that expressly or by reasonable implication requires Heretto to suspend or terminate Customer and/or any authorized User’s access to the Subscription Service.

5.2 Subscription Service Warranty.  Heretto warrants that during the term of any Order Form for the Subscription Service, the Subscription Service will conform, in all material respects, with the User Guides.  Heretto does not warrant that it will be able to correct all reported defects or that use of the Subscription Service will be uninterrupted or error free.  Heretto makes no warranty regarding features or services provided by third parties.  For any breach of the above warranty, Heretto will, at no additional cost to the Customer, provide remedial services necessary to enable the Subscription Service to conform to the warranty. The Customer will provide Heretto with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects.  Such warranty shall only apply if the Subscription Service has been utilized by the Customer and its Users in accordance with the Order Form and this Agreement.  

5.3 Professional Services Warranty.  Except as expressly set forth in a SOW, Heretto warrants that any Professional Services provided hereunder shall be provided in a competent manner and in accordance with any specifications set out in the Order Form in all material respects.  Heretto further warrants that, except as expressly set forth in a SOW,  any Work Product provided pursuant to any Professional Services engagement shall comply, in all material respects, with the specifications set out in the applicable Order Form.  If the Services are not performed as warranted or the Work Product does not so comply, then, upon the Customer’s written request, Heretto shall promptly re-perform, or cause to be re-performed, such Professional Services, at no additional charge to the Customer.  Such warranties and other obligations shall survive for thirty (30) days following the completion of the Professional Services or the delivery of each applicable portion of the Work Product, as the case may be.  

5.4 Data Security. Heretto agrees to use appropriate safeguards and comply with all applicable data protection laws, to prevent use or disclosure of the Customer Data other than as provided for by this Agreement.  Heretto agrees to implement industry standard physical safeguards, technical safeguards and policy, procedure and documentation requirements that reasonably and appropriately protect the confidentiality, integrity and availability of the Customer Data.  

5.5 No Other Warranty.  HERETTO DOES NOT REPRESENT THAT THE SERVICES WILL BE ERROR-FREE OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICES WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SUBSCRIPTION SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 5 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY HERETTO. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES ARE ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.

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6. LIMITATION OF LIABILITY.

6.1 Limitation. Neither Party will be liable to the other or any third party for loss of profits or for any special, indirect, incidental, consequential or exemplary damages (including without limitation, damages for loss of business profits, loss of goodwill, business interruption, loss of business information and/or data) in connection with the performance of the Services, or the performance of any other obligations under this Agreement, even if it is aware of the possibility of the occurrence of such damages. To the fullest extent permitted by applicable law, neither Party's aggregate, cumulative liability arising out of or related to this Agreement, whether in contract, tort or under any other theory of liability, will exceed the total amount paid by Customer hereunder during  the twelve (12) month period immediately preceding the event giving rise to the claim. The foregoing shall not limit Customer’s payment obligations under section 3.  The provisions of this Agreement allocate risks between the Parties.  The pricing set forth in each Order Form and SOW reflects this allocation of risk and the limitation of liability specified herein.   

7. TERM

7.1 Term.  This Agreement will commence on the Effective Date and will continue in effect until otherwise terminated in accordance with Section 7.2 below.  The term of each Order Form for the Subscription Service shall be set out on the Order Form.  Except as otherwise specified in the applicable Order Form, the term of the Order Form for the Subscription Service shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either Party gives the other written notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless Heretto has given Customer written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.

7.2 Termination.  Notwithstanding the foregoing, either Party may terminate this Agreement or any Order Form or SOW (i) immediately in the event of a material breach of this Agreement or any such Order Form or SOW by the other Party that is not cured within thirty (30) days of written notice from the other Party, or (ii) immediately if the other Party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty (60) days of filing.  Termination of an Order Form or SOW shall not be deemed a termination of this Agreement.  Termination of this Agreement shall, however, terminate all outstanding Order Forms and SOWs.  Either Party may also terminate this Agreement upon no less than thirty (30) days’ prior written notice to the other Party for any reason, if at such time there are no outstanding Order Forms or SOWs then currently in effect.  All rights and obligations of the Parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement and each Order Form and SOW.  

7.3 Effect of Termination.  Upon any termination or expiration of this Agreement or any applicable Order Form, Heretto shall no longer provide the applicable Services to the Customer and the Customer shall promptly cease and cause its Users to promptly cease using the Services. The Customer shall pay Heretto for all fees that had accrued prior to the termination date. Upon any termination by Customer pursuant to Section 7.2, Heretto shall refund to Customer any prepaid unused fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination by Heretto pursuant to Section 7.2, Customer shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party. Upon termination of this Agreement, each party shall promptly return or destroy all Confidential Information of the other party in its possession. For 30 days after the effective date of termination of the Order Form, Heretto will make Customer Data available to Customer for download. After such 30-day period, Heretto shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Date in possession or under its control.

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8. OWNERSHIP; USE OF DATA; OBLIGATIONS

8.1 Subscription Service. The Customer acknowledges and agrees that as between Heretto and the Customer, all right, title and interest in and to the Subscription Service (but excluding any Customer Data) and including all modifications and configurations, all Heretto Data and all of Heretto’s proprietary technology, including, without limitation, all software, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information made available to the Customer by Heretto in providing the Subscription Service and all derivatives thereof are and shall remain Heretto’s or its licensors’.  During the term of this Agreement, Heretto grants to the Customer a limited, worldwide, non-exclusive, non-transferable (except as set out in Section 11.2), royalty-free right to use, display, transmit, and distribute the Heretto Data solely in connection with the Customer’s permitted use of the Subscription Service.  Heretto shall have the right to collect, use and distribute aggregated information, analysis, statistics, related benchmarking algorithms and other data generated by the Subscription Service (or derived from the Customer’s use of the Subscription Service) provided, however, that Heretto shall not disclose any such data unless such data is in an aggregated, anonymized form that would not permit a third party to identify the data as associated with the Customer or any of its Users.  

‍8.2 Customer Data.  The Customer retains ownership of all right, title and interest in and to all Customer Data.  During the term of this Agreement, the Customer hereby grants to Heretto a limited, worldwide, non-exclusive, non-transferable (except as set out in Section 11.2), royalty-free right to use, copy, display, transmit, and distribute the Customer Data solely as necessary to provide the Subscription Service to the Customer.  

8.3 Customer Obligations.  The Customer is responsible for all activities conducted under its User logins and for its Users’ use of the Services and compliance with this Agreement.  Unauthorized use, resale or commercial exploitation of the Subscription Service in any way is expressly prohibited.  Without Heretto’s express prior written consent in each instance, the Customer and its Users shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Subscription Service or access the Subscription Service in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Service.  Except as expressly permitted in this Agreement, the Customer shall not use the Subscription Service on behalf of any third-party or allow any third party to use the Subscription Services.  The Customer shall be liable for the use of the Services and any breach of this Agreement by any of its Users.  In addition to Heretto’s other remedies hereunder, Heretto reserves the right upon notice to the Customer to terminate any User’s right to access the Subscription Service if such User has violated any of the restrictions contained in this Agreement.  The Customer is solely responsible for all Customer Data.  Heretto does not guarantee the accuracy, integrity or quality of the Customer Data.  Neither the Customer nor its Users shall use the Subscription Service to: (a) send, upload or otherwise transmit any Customer Data that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) upload or otherwise transmit, display or distribute any Customer Data that infringes any trademark, trade secret, copyright or other proprietary or intellectual property rights of any person; (c) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (d) interfere with or disrupt the Subscription Service or networks connected to the Subscription Service; or (e) violate any applicable law or regulation.  

8.4 Work Product.  The parties agree that unless otherwise expressly set forth in a SOW, Customer will have a non-exclusive, non-transferable (except as set forth in Section 11.2) license to use any Work Product developed by Heretto in the performance of any Professional Services and delivered to Customer, upon Customer’s payment in full of all amounts due hereunder, solely for Customer’s internal use in connection with its use of the Subscription Service.  Heretto retains ownership of all information, software and other property owned by it prior to this Agreement or which it develops independently of this Agreement and all Work Product compiled or developed by Heretto in the performance of this Agreement.

8.5 Suggestions.  Heretto shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer including its Users, relating to the operation of the Services. Heretto shall not be required to provide any credit or attribution to Customer or pay Customer anything for such license. 

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9. INDEMNITY

9.1 Heretto Indemnification.  Subject to Section 9.3 below, Heretto will defend Customer, its Affiliates and their respective officers, directors, employees and agents (collectively, the "Customer Indemnitees"), against any claim, demand, suit or proceeding made or brought against any of the Customer Indemnitees by a third party alleging that the Services or Work Product infringe or misappropriate such third party's intellectual property rights and will indemnify the Customer Indemnitees from any damages (including reasonable attorney fees and costs) finally awarded against any of the Customer Indemnitees as a result of, or for amounts paid by under a court-approved settlement of such claim.  Excluded from the above indemnification obligations are claims to the extent arising from (a) use of the Services or Work Product in violation of this Agreement or applicable law, (b) use of the Services or Work Product after Heretto notifies the Customer to discontinue use because of an infringement claim, (c) any claim relating to any Customer Data or Third-Party Applications, (d) modifications to the Services or Work Product made other than by Heretto (where the claim would not have arisen but for such modification), (e) the combination, operation, or use of the Services or Work Product with materials, software or equipment which was not provided by Heretto, to the extent that the Customer’s liability for such claim would have been avoided in the absence of such combination, operation, or use; or (f) compliance by Heretto with the Customer’s custom requirements or specifications if and to the extent such compliance with the Customer’s custom requirements or specifications resulted in the infringement.  If the Services are held to infringe, Heretto will, at its own expense, in its sole discretion use commercially reasonable efforts either (a) to procure a license that will protect the Customer against such claim without cost to the Customer; (b) to replace the Services with non-infringing Services; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement or the applicable Order Form or SOW and refund to the Customer any prepaid unused fees paid to Heretto for the infringing Services.  The rights and remedies granted the Customer under this Section 9.1 state Heretto’s entire liability, and the Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party, whether arising under statute, common law or otherwise.

9.2 Customer Indemnity.  Subject to Section 9.3 below, Customer will defend Heretto, its Affiliates and their respective officers, directors, employees and agents (collectively, the “Heretto Indemnitees”), against any claim, demand, suit or proceeding made or brought against any of the Heretto Indemnitees by a third party (i) arising out of the Customer Data or (ii) arising out of the Customer’s breach of Section 8.3 above and will indemnify the Heretto Indemnitees from any damages (including reasonable attorney fees and costs) finally awarded against any of the Heretto Indemnitees as a result of, or for amounts paid by under a court-approved settlement of such claim.

9.3 Indemnification Procedure. The indemnified Party shall (i) promptly notify the indemnifying Party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying Party’s obligation except to the extent it is materially prejudiced thereby, and (ii) allow the indemnifying Party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement; provided that the indemnifying Party shall not settle any claim without the indemnified Party’s prior written consent (such consent not to be unreasonably withheld or delayed). The indemnified Party shall also provide the indemnifying Party with reasonable cooperation and assistance in defending such claim (at the indemnifying Party’s cost).

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10 INSURANCE

10.1 Insurance Coverage.   During the Term, Hereto shall maintain and keep in force, at its own expense the following minimum insurance coverages and limits in accordance with the Agreement in forms and with insurance companies that have a minimum A.M. Best Rating of A-VII: (i) workers’ compensation insurance, with statutory limits as required by the various laws applicable to the employees of Heretto; (ii) employer’s liability insurance, for employee bodily injuries and deaths, with a limit of $100,000 for each accident.  Excess liability insurance may be used to satisfy the limit requirement in this paragraph;  ; (iii) commercial general liability insurance, covering claims for bodily injury, death and property damage, including premises and operations, independent contractors, products, services and completed operations (as applicable to the Services), personal injury, contractual, and broad-form property damage liability coverages, with limits of $1,000,000 per occurrence and $2,000,000 aggregate for bodily injury, death and property damage.  Excess liability insurance may be used to satisfy the limit requirement in this paragraph; (iv) cyber liability insurance, with limits not less than $3,000,000 per occurrence and in the aggregate.  Coverage shall  include, but not be limited to, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information, and network security.  The policy shall provide coverage for security breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations.

10.2 Certificates of Insurance.   Heretto shall deliver certificates of insurance verifying such coverage, in a form which is industry standard, upon Customer’s reasonable request.

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11. GENERAL

11.1 Entire Agreement.  This Agreement and all Order Forms and SOWs, contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating to this Agreement.  Only a written instrument that refers to this Agreement or the applicable Order Form or SOW and that are duly signed by the authorized representatives of both Parties may amend this Agreement or such Order Form or SOW.  Any inconsistent or conflicting terms and conditions contained in any purchase order issued by the Customer shall be of no force or effect, even if the purchase order is accepted by Heretto. If this Agreement is entered into in response to a request for proposal or similar document (“RFP”), no terms of the RFP and no response to such RFP by Heretto will be incorporated into this Agreement, all of which will be of no force and effect. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the Party drafting this Agreement in construing or interpreting the provisions hereof.

11.2 Assignment.  This Agreement shall be binding upon and for the benefit of Heretto, the Customer and their permitted successors and assigns.  Neither Party may assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other Party, and any attempted assignment or delegation without such consent will be void; provided that either Party may assign this Agreement and all Order Forms and SOWs, without consent, as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets by providing written notice to the other Party.  Heretto may use independent contractors or subcontractors to assist in the delivery of Services; provided, however, that Heretto shall remain liable for the actions or omissions of such independent contractors or subcontractors and for the payment of their fees.

11.3 Governing Law and Jurisdiction.  This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of law provisions.  The federal and state courts sitting in the State of New York will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction.

11.4 Headings.  The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement. 

11.5 Relationship of the Parties.  Heretto and the Customer are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever.  Neither Party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other Party’s name or on its behalf.

11.6 Force Majeure.  Except for the obligation to make payments, nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, recognized health threats as determined by the World Health Organization, the Centers for Disease Control, or local government authority or health agencies (including but not limited to the health threats of COVID-19, H1N1, or similar infectious diseases), curtailment of transportation facilities, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party.

11.7 Notices.  Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the Party to whom the same is directed; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt to the address of the Party set forth on the applicable Order Form or SOW or (iii) by email to the email address set forth on the applicable Order Form or SOW provided receipt of such email is confirmed.  Either Party may change its address by giving written notice of such change to the other Party.

11.8 Modifications to Subscription Service.  Heretto may make modifications to the Subscription Service or particular components of the Subscription Service from time to time provided that such modifications do not materially degrade any functionality or features of the Subscription Service.

11.9 Publicity.  The Customer hereby grants Heretto a non-exclusive license solely during the term of this Agreement to list the Customer’s name and display the Customer’s logo in the customer section of Heretto’s website and to use the Customer’s name and logo in Heretto’s customer lists but only to the extent that other customers of Heretto are also listed on such list. Any other use by Heretto of the Customer’s name, logo or trademark requires the Customer’s prior written consent.

11.10 Export; Government Rights.  Both Parties will comply with all applicable export regulations.  The following provision applies only if Customer is a branch or agency of the United States Government or is purchasing the Subscription Service on behalf of the United States Government. The Subscription Service and the Documentation have been developed at private expense and are sold commercially. The Subscription Service is comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and are provided to the Government for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 (JUN 1995) and 227.7202-3 (JUN 1995). Certain components of the Subscription Service may also be Commercially Available Off-the-Shelf (COTS) items, as defined in FAR 2.101. The Subscription Service and the Documentation are provided under any U.S. government contracts or subcontracts with the most restricted and the most limited rights permitted by law and regulation.  Whenever so permitted, the government and any intermediate buyers will obtain only those rights specified in Heretto’s standard commercial license.  Thus, the Subscription Service referenced herein, and the Documentation provided by Heretto hereunder, which are provided to any agency of the U.S. Government or U.S. Government contractor or subcontractor at any tier shall be subject to the maximum restrictions on use as permitted by FAR 52.227-19 (June 1987) or DFARS 227.7202-3(a) (Jan. 1, 2000) or successor regulations.

11.11 Beta or Trial Version.  In the event that Heretto provides Customer with access to the Subscription Service for a free trial or specifies that the Subscription Service is a beta version then in either case Customer shall have a non-exclusive, non-transferable, revocable license to access and use the Subscription Service solely for Customer’s internal evaluation and use during the term of the Order Form.  Either party may terminate Customer’s access to the free trial or use of the beta version at any time upon notice to the other Party.  All provisions of this Agreement shall be applicable to Customer’s use of the free trial or beta version of the Subscription Service provided that (a) the Subscription Service is provided by Heretto “AS IS” without any warranty whatsoever and (b) Heretto’s indemnification obligations in Section 9.1 of the Agreement shall not apply.

11.12 No Third Party Beneficiaries.  Nothing contained in this Agreement is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a Party to any such person.  Notwithstanding the foregoing, Customer hereby agree that the licensors of third party software to Heretto and each Third-Party Application provider will be considered third party beneficiaries of this Agreement and will be entitled to bring a direct action against Customer in the event of breach of any applicable provisions of this Agreement, pursuant to the terms and conditions of this Agreement.

11.13 Counterparts.  This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original as against any Party whose signature appears thereon, but all of which together shall constitute but one and the same instrument.  Signatures to this Agreement transmitted by facsimile, by electronic mail in “portable document format” (“.pdf”), or by any other electronic means which preserves the original graphic and pictorial appearance of the Agreement, shall have the same effect as physical delivery of the paper document bearing the original signature.

11.14 Waiver and Severability.  Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by an authorized representative of the other Party, which waiver shall be effective only with respect to the specific obligation described therein.  The failure of either Party to exercise any of its rights under this Agreement will not be deemed a waiver or forfeiture of such rights.  The invalidity or unenforceability of one or more provisions of this Agreement will not affect the validity or enforceability of any of the other provisions hereof, and this Agreement will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.

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You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

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