Last Updated: August 3, 2023

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BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE LIFTLAB PLATFORM AND RECEIVING ASSOCIATED SERVICES, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE LIFTLAB PLATFORM OR RECEIVE SERVICES FROM LIFTLAB. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE AS ANY WRITTEN AGREEMENT SIGNED BY YOU.

 

IF YOU ARE AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO BIND SUCH ENTITY AND ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.

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AGREEMENT

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These Terms of Service (“TOS”) are between LiftLab Analytics Inc., a Delaware corporation with its principal place of business at 1111 Broadway, 5th Floor, Oakland, CA 94607 (“LiftLab”), and the company that is a party to an executed Order Form (defined below) referencing these TOS (other than a Reseller, as defined in the definitions section) placing an order for, or accessing, the LiftLab Platform (“Customer”). The integrated and complete agreement between LiftLab and Customer (“Agreement”) consists of these TOS and any attachments, addenda, amendments, exhibits or URLS referenced in the TOS, and any Order Forms signed by LiftLab and Customer. The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to the LiftLab Platform through any online provisioning, registration, or order process or (b) the effective date of the first Order Form referencing this Agreement.

 

Modifications to this Agreement. From time to time, LiftLab may modify the Agreement. Unless otherwise specified by LiftLab, changes become effective for Customer upon renewal of a Subscription Term or upon the effective date of a new Order Form after the updated version of this Agreement goes into effect. LiftLab will use reasonable efforts to notify Customer of the changes through communications via Customer’s account within the LiftLab Platform, via email or other means. Customer may be required to click to accept or otherwise agree to a modified Agreement before renewing a Subscription Term or upon the effective date of a new Order Form, and in any event, continued use of the LiftLab Platform after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.

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1. DEFINITIONS
    

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.

“Barred Data” means personally-identifiable information or personal data as defined under any data protection laws that is collected by Customer or third parties acting on Customer’s behalf concerning Customer’s customers or any other individuals with whom Customer engages in business transactions in the normal course (excluding Business Contact Information as defined below), which information identifies or could be used to identify a person, including but not limited to any person’s, (i) name, email address, or home address, (ii) government-issued identification number of any kind, (iii) health, genetic, biometric record or data, (iv) personal financial or bank account number, credit or debit card number, with or without any required security code, access code or any personal identification number or password that would permit access to the individual's financial account.

“Business Contact Information” means essential business contact information exchanged between Customer and LiftLab about Users or each other’s other personnel within the parties’ respective organizations, including Affiliates) that is required for Customer and LiftLab to engage in internal communications with each other concerning the administration, delivery, receipt, and performance of the parties’ respective obligations under this Agreement and each Order Form, such as sales, services, billing, invoicing, collection, support, business escalations, login to the LiftLab Platform, business reviews and other routine business communications between the parties.

“Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Cloud Provider” means the third-party cloud services provider with which LiftLab maintains an agreement for access and use of the LiftLab Platform, currently, Amazon Web Services (AWS).

“Customer” means the customer named above, together with its Affiliates that have signed Order Forms.

“Customer Data” means (1) the marketing spend and other non-personally identifiable transactional electronic data and information submitted by or for Customer to the LiftLab Platform as specified in the Order Form, and (2) Business Contact Information as defined below. Customer Data excludes Barred Data as defined above.

“Data Safeguards” are the security measures described in Section 2 of this Agreement and in the DPA.

“Documentation” means the generally available LiftLab Platform documentation and usage guides, as updated from time to time.

“DPA” means, collectively, and as applicable based on the Customer Data actually provided, the Data Processing Addendum and/or the USASP Addendum at the foregoing URLs or that are separately executed by the parties.

“LiftLab Platform” means LiftLab’s software as identified on the Order Form made available pursuant to this Agreement.

“Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses.

“Order Form” means an ordering document mutually executed by Customer and LiftLab that states the fees, subscription term, scope of use, and other agreed-to specifications and/or transaction-specific terms and conditions mutually agreed between Customer and LiftLab.

“User” means an individual who is authorized by Customer to use the LiftLab Platform as permitted by this Agreement and the Order Form, and to whom user identification and password are assigned. Users may include employees, consultants, contractors, and agents of Customer or its Affiliates (including marketing agencies), and third parties with which Customer transacts business.

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2. LIFTLAB RESPONSIBILITIES.
 

LiftLab will: (a) make the LiftLab Platform available to Customer pursuant to this Agreement and the applicable Order Forms, (b) provide LiftLab standard support as noted on the Order Form for the LiftLab Platform to Customer at no additional charge, or upgraded support if purchased and noted on the Order Form, (c) provide the LiftLab Platform and use Customer Data in accordance with laws and government regulations applicable to LiftLab’s business generally (i.e., without regard for Customer’s particular industry, business model, or intended use of the LiftLab Platform). LiftLab will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with LiftLab’s obligations under this Agreement. At all times during a Subscription Term, LiftLab will implement and maintain in the LiftLab Platform, and only utilize Cloud Providers that implement and maintain in the LiftLab Platform, appropriate administrative, physical, and technical safeguards for the protection, security, confidentiality, and integrity of Customer Data as described in Annex B of the DPA ("Data Safeguards"). At the Customer's reasonable request, LiftLab will provide pertinent information regarding then-current Data Safeguards implemented by LiftLab or the Cloud Provider. Information concerning the Data Safeguards employed by Amazon Web Services, "AWS") is directly available to the Customer via the URL https://aws.amazon.com/artifact/ (as updated by AWS from time to time). Except as mutually agreed upon and scheduled between Customer and LiftLab, Customer will at no time use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the LiftLab Platform or LiftLab's or the Cloud Provider compliance with the obligations related to the Data Safeguards.

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3. USE OF LIFTLAB PLATFORM
 

3.1 Subscriptions.  Access to the LiftLab Platform is provided solely in the form of purchased term-based subscriptions as noted on the Order Form (“Subscription Term”). Subscriptions may be added during a Subscription Term at the same pricing as the underlying subscription pricing, prorated for the portion of that Subscription Term remaining at the time the subscriptions are added. Any added subscriptions will terminate on the same date as the underlying subscriptions upon the expiration or termination of the original Subscription Term.

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3.2 Usage Limits.  The LiftLab Platform is subject to usage limits specified in Order Forms. Unless otherwise specified, a User’s password may not be shared with any other individual, and except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing the former User who will no longer use the LiftLab Platform. If Customer exceeds a contractual usage limit, the parties will promptly execute a supplemental Order Form for additional quantities of the applicable LiftLab Platform, and/or LiftLab will issue, and Customer will pay a supplemental invoice for excess usage in accordance with the “Invoicing and Payment” section below.

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3.3 Customer Responsibilities.  Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation, and Order Forms to the same extent assumed for itself, (b) be responsible for the accuracy, quality, and legality of Customer Data and the means by which Customer acquires Customer Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of LiftLab Platform, and notify LiftLab promptly if it becomes aware of any such unauthorized access or use, and (d) use LiftLab Platform only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations.

 

3.4 Usage Restrictions.  Customer will not (a) make the LiftLab Platform available to anyone other than Customer or Users, (b) sell, resell, license, sublicense, distribute, make available, rent or lease the LiftLab Platform, or include the LiftLab Platform in a service bureau or outsourcing offering,  (c) use the LiftLab Platform to upload any Barred Data, or to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the LiftLab Platform to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the LiftLab Platform or third-party data contained therein, (f) attempt to gain unauthorized access to the LiftLab Platform, (g) permit direct or indirect access to or use of any LiftLab Platform in a way that circumvents a contractual usage limit, (h) use the LiftLab Platform except as permitted under this Agreement, an Order Form, or the Documentation, (i) copy the LiftLab Platform or any part, feature, function or user interface thereof, (j) access the LiftLab Platform in order to build a competitive product or service or to benchmark it with a non-LiftLab product or service, or (k) reverse engineer the LiftLab Platform. Customer’s or a User’s violation use of the LiftLab Platform in breach of this Section, this Agreement, or the Order Forms, or any use by Customer or Users that in LiftLab’s reasonable and good faith judgment imminently threatens the security, integrity, or availability of the LiftLab Platform, may result in LiftLab’s suspension of the LiftLab Platform. LiftLab will use commercially reasonable efforts under the circumstances to provide Customer with an opportunity to remedy such violation or threat prior to any such suspension, to limit the suspension to affected Users or portions of the LiftLab Platform, and to restore Customer’s and its User’s access to the same as soon as the issue giving rise to the suspension is resolved.

 

3.5 DPA. The parties will comply with the DPA, as legally applicable, given the Customer Data processed pursuant to this Agreement and the Business Contact Information shared between the parties. Business Contact Information provided by Customer or LiftLab may be used by the other party solely in connection with the business relationship established by this Agreement, for the benefit of the party providing it, and in accordance with the DPA. Business Contact Information is the Confidential Information of the party providing it as Disclosing Party (defined in Section 7 below).

 

3.6 Barred Data. Use of the LiftLab Platform does not entail, nor does it require, any form of Barred Data. Customer understands and agrees that it is an express condition of this Agreement and Customer’s obligation not to upload or provide Barred Data to LiftLab or the LiftLab Platform, as neither LiftLab nor the LiftLab Platform are developed, reviewed, audited, or certified for compliance with any privacy, security, or other legal or regulatory standards implicated in the processing of Barred Data, regardless of the jurisdiction. Therefore, LiftLab assumes no liability, obligation, or other undertakings to Customer in the event that Customer breaches, knowingly or unintentionally, the restriction against the provision of Barred Data except, on receipt of notice from Customer, to suspend access to the LiftLab Platform until Customer ceases the further provision of Barred Data and removes or purges such Barred Data from the LiftLab Platform (or LiftLab may do so itself, including for a possible cost, if Customer has not done so within a reasonable period and the effort to LiftLab is substantial as determined reasonably and in good faith by LiftLab).

 

4. PROFESSIONAL SERVICES.
 

As mutually agreed by the parties and set forth in an Order Form, LiftLab may perform professional services related to the Customer’s use of the LiftLab Platform, which may include implementation or configuration of the LiftLab Platform, training pertaining to the same or other agreed-to consulting services. Professional services are not “work for hire” services and do not entail the development of Customer-specific software or other functionality, but at all times relate to LiftLab’s underlying intellectual property as embodied in the LiftLab Platform. Unless otherwise noted on the Order Form, professional services are provided for a separate fee, which will be specified in an applicable Order Form.
 

5. FEES.
 

5.1 Fees and Payment. Unless Section 5.3 below applies, Customer will pay all undisputed fees specified in Order Forms. Except as otherwise specified in this Agreement or an Order Form, fees are based on LiftLab Platform subscriptions purchased and not actual usage, and payment obligations are non-cancelable, and fees paid are non-refundable. Fees will be invoiced in accordance with the invoicing terms stated on the relevant Order Form. Unless otherwise stated in the Order Form, fees are due thirty (30) days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to LiftLab and notifying LiftLab of any changes to such information. If any undisputed invoiced amount is not received by LiftLab by the due date, those charges may accrue late interest at the rate of 1.0% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.

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​5.2 Taxes. LiftLab’s fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If LiftLab has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, LiftLab will invoice Customer, and Customer will pay that amount unless Customer provides LiftLab with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, LiftLab is solely responsible for taxes assessable against it based on its income, property, and employees.

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5.3 Reseller Orders. Customer may purchase or renew subscriptions to the LiftLab Platform and associated services through a LiftLab-authorized reseller ("Reseller") pursuant to a separate agreement between Customer and Reseller ("Reseller Arrangement"), which may specify different terms regarding invoicing, taxes and payments from those in this Agreement. LiftLab will only be obligated to provide the LiftLab Platform to Customer in connection with a Reseller Arrangement if LiftLab and Reseller have executed the required ordering documentation for such purchase. Customer acknowledges and agrees that, solely in connection with the purchase by Customer through a Reseller Arrangement: (a) LiftLab may share information with Reseller related to Customer's use and consumption of the LiftLab Platform or associated services to facilitate billing, implementation, configuration, support, resolve disputes or other requirements or obligations under the legal agreement between Reseller and LiftLab, subject to applicable confidentiality obligations between Reseller and LiftLab; (b) notwithstanding anything to contrary in this Agreement, references to all payments of fees, refunds and credits, if any, are payable by or to the Reseller and not to Customer; (c) this Agreement governs Customer's use of the LiftLab Platform, notwithstanding anything to the contrary in the Reseller Arrangement; (d) LiftLab and its providers are a permitted subcontractor of Reseller insofar as LiftLab is required to deliver services under LiftLab’s agreement with the Reseller (however, LiftLab is not liable to Customer for Reseller’s services for which the Reseller assumes responsibility under the Reseller Arrangement); and (e) Reseller is not authorized to make any changes to this Agreement or otherwise authorized to make any warranties, representations, promises or commitments on behalf of LiftLab, including any as concern the LiftLab Platform or LiftLab’s services.

 

5.4 Usage Review.  LiftLab or its nominee (including its accountants and auditors) may monitor and review Customer’s use of the LiftLab Platform at any time during the Subscription Term where necessary to verify Customer’s compliance with the use provisions of this Agreement or the calculation of fees payable to LiftLab. Where requested by LiftLab, Customer will cooperate reasonably at no charge to LiftLab during normal business hours with respect to such review. If, as a result of a review, an adjustment to fees is necessary for compliance with Customer’s agreed to pricing terms, the parties will promptly enter into an Order Form reflecting such adjustment, or LiftLab may otherwise issue an invoice for fees payable, and Customer will, directly or via the Reseller, as applicable, pay such additional fees.

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5.5 Affiliate Ordering. Customer's Affiliates may purchase subscriptions or services from LiftLab by executing an Order Form pursuant to the Agreement. This will establish a new and separate agreement between the Customer Affiliate and the LiftLab entity signing such Order Form. If the Customer Affiliate resides in a different country than Customer, then the Order Form may include mutually agreed-to modifications to terms applicable to the transaction(s) (including, but not limited to, tax terms or governing law).

 

6. PROPRIETARY RIGHTS AND LICENSES
 

6.1 Customer Rights. Subject to the limited rights expressly granted hereunder, Customer and its licensors reserve all their right, title, and interest in and to the Customer Data, Customer’s Confidential Information, including all their related intellectual property rights. During the Subscription Term, Customer grants LiftLab with the limited right to access and use the LiftLab Platform and Customer Data therein using Customer-provided access rights solely for Customer’s benefit as necessary to operate and manage the LiftLab Platform for Customer’s benefit. LiftLab’s use of Customer Data will be limited solely to delivery of the LiftLab Platform and compliance with applicable law, including associated support and the performance of professional services, if applicable, and for no other purposes. No rights are granted to LiftLab hereunder other than as expressly set forth herein.

 

6.2 LiftLab Rights. Subject to the limited rights expressly granted hereunder, LiftLab and its licensors reserve all their right, title, and interest in and to the LiftLab Platform, LiftLab’s Confidential Information, and all modifications, enhancements, updates, upgrades, fixes, patches, and derivative works thereto or thereof, including all their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

 

6.3 License by Customer to Use Feedback. Customer grants to LiftLab and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its LiftLab Platform any suggestion, enhancement request, recommendation, correction, or other feedback (“Feedback”) provided by Customer or Users relating to the operation of the LiftLab Platform. Feedback will not include any Customer Data, Customer’s Confidential Information, or identify or be used or displayed in any way that permits identification of Customer, Users, or any individuals.

 

6.4 Service Data. In providing the LiftLab Platform, and subject to the requirements and limitations of this Section, LiftLab may aggregate and/or analyze the Customer Data, alone or in combination with other LiftLab data or data from other sources, by applying advanced manipulations and analytics developed or licensed by LiftLab or combinations thereof, that result in the derivation of new and/or enhanced, de-identified data (“Service Data”). Service Data may be presented to Customer as part of Customer’s subscription and may be used by Customer for Customer’s internal business use during the Subscription Term subject to the terms of this Agreement. Service Data will never: (a) identify or permit identification or re-identification of Customer or any of its Users, (b) disclose any of Customer’s Confidential Information, or (c) constitute an identifiable copy of the Customer Data. Subject to the requirements of (a) through (c) in the preceding sentence, Customer hereby consents to LiftLab’s creation of Service Data using, in part, Customer Data, understands and agrees that portions of Customer Data may be incorporated in the Service Data, and, to the extent that Customer Data forms part of the Service Data, such Customer Data is licensed to LiftLab on a perpetual, royalty-free, and worldwide basis solely for use together with and as part of the Service Data and not for standalone use. Subject to Customer’s retained rights in the Customer Data, Service Data is owned by LiftLab and may be used by LiftLab for LiftLab’s legitimate business purposes without royalty or other compensation to Customer. Customer agrees that, provided that LiftLab complies with the terms of this Section, LiftLab may make Service Data publicly available, available to other customers (including customers in identical or similar industries as Customer’s) and/or incorporate it into other LiftLab Platform.

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7. CONFIDENTIALITY
 

7.1 Definition. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data. Confidential Information of LiftLab includes the LiftLab Platform, Documentation, and any of LiftLab’s training materials, templates, professional services or support tools, know-how, product roadmap, and methodologies pertaining to the LiftLab Platform. Confidential Information of each party includes Business Contact Information provided by the Disclosing Party, the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, company information, suppliers, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

 

7.2 Protection of Confidential Information. 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) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, including, where applicable, the DPA, and (ii) except as otherwise authorized by the Disclosing Party in writing or otherwise required by law, limit access to and use of Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel, and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section.

 

7.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, 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.
 

8. WARRANTIES AND DISCLAIMERS
 

8.1 LiftLab Warranties. LiftLab warrants that during each Subscription Term (a) the LiftLab Platform will perform materially in accordance with the applicable Documentation and the specifications noted on the Order Form, (b) it will not materially decrease the overall functionality of the LiftLab Platform, and (c) it will use commercially-available and industry-standard means to monitor and prevent the introduction of Malicious Code to the LiftLab Platform (excluding any Malicious Code introduced by Customer, Users, or third parties acting on behalf of the foregoing). For any breach of a warranty above, Customer’s exclusive remedies are LiftLab to attempt to correct the LiftLab Platform so it conforms to the warranted standards within a reasonable time, or for either party to terminate the Order Forms, whereupon LiftLab will provide a pro-rata refund of any fees paid for the subscription for the remaining months of the Subscription Term, or in the event fees have yet to be paid, cancelation of the payment obligation related to the non-conforming professional services. In addition to the warranties set forth above, LiftLab further warrants that professional services and support hereunder will be provided in a professional and workmanlike manner consistent with applicable industry standards and laws applicable to LiftLab. In the event the professional services fail to meet this warranty, LiftLab will, upon notice from the Customer, re-perform the nonconforming professional service. If LiftLab re-performs the professional services and such professional services still fail to meet the warranty provided herein, the Customer’s exclusive remedies for the nonconforming professional services will be a refund of any fees paid for such professional services or in the event fees have yet to be paid, cancelation of the payment obligation related to the non-conforming professional services.

 

8.2 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

 

9. MUTUAL INDEMNIFICATION
 

9.1 Indemnification by LiftLab. LiftLab will defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party (1) alleging that the LiftLab Platform, Documentation, or other material supplied by LiftLab hereunder infringes or misappropriates such third party’s intellectual property rights, or arising from LiftLab’s unauthorized access or use of the Customer Data, or (2) resulting from LiftLab’s breach of the DPA or the confidentiality, use, or processing obligations pertaining to Customer Data under this Agreement (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and litigation costs and expenses awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by LiftLab in  writing of, a Claim Against Customer, provided Customer (a) promptly gives LiftLab written notice of the Claim Against Customer, (b) gives LiftLab sole control of the defense and settlement of the Claim Against Customer (except that LiftLab may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives LiftLab all reasonable assistance, at LiftLab’s expense. If LiftLab receives information about an infringement or misappropriation claim related to the LiftLab Platform, LiftLab may, in its discretion and at no cost to Customer, (i) modify the LiftLab Platform so that they are no longer claimed to infringe or misappropriate, without breaching LiftLab’s warranties under “LiftLab Warranties” above, (ii) obtain a license for Customer’s continued use of the LiftLab Platform in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for the LiftLab Platform upon 30 days written notice and refund Customer any prepaid fees covering the remainder of the Subscription Term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against Customer arises from (A) Barred Data, or the supply of unauthorized or infringing Customer Data,  (B) Customer’s breach of this Agreement or violation of applicable law, (C) Customer’s unauthorized use of the LiftLab Platform, (D) any modification of the LiftLab Platform made by anyone other than LiftLab, (E) any combination of the LiftLab Platform with the LiftLab Platform or any other software, hardware, network or intellectual property not supplied by LiftLab.

 

9.2 Indemnification by Customer. Customer will defend LiftLab against any claim, demand, suit or proceeding made or brought against LiftLab by a third party (1) resulting from Customer’s supply of Barred Data, (2) alleging that any Customer Data infringes or misappropriates such third party’s intellectual property rights or is provided in breach of the DPA, or (3) arising from Customer’s use of the LiftLab Platform in breach of the Agreement or applicable law (each a “Claim Against LiftLab”), and will indemnify LiftLab from any damages, attorney fees and costs awarded against LiftLab as a result of, or for any amounts paid by LiftLab under a settlement approved by Customer in writing of, a Claim Against LiftLab, provided LiftLab (a) promptly gives Customer written notice of the Claim Against LiftLab, (b) gives Customer sole control of the defense and settlement of the Claim Against LiftLab (except that Customer may not settle any Claim Against LiftLab unless it unconditionally releases LiftLab of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense.

 

9.3 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for the third-party claims described in this section.

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10. LIMITATION OF LIABILITY
 

10.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EACH PARTY, TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE TOTAL SUBSCRIPTION AND OTHER FEES PAID OR PAYABLE TO LIFTLAB BY CUSTOMER OR THE RESELLER, AS APPLICABLE, GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE INCIDENT OUT OF WHICH THE LIABILITY AROSE (“GENERAL LIABILITY CAP”), EXCEPT THAT, IN CONNECTION WITH EITHER PARTY’S BREACH OF THE DPA, THE CONFIDENTIALITY PROVISIONS OF THIS AGREEMENT, THE INDEMNIFICATION PROVISIONS, OR BREACH OF THE DATA OR PRODUCT USE RESTRICTIONS IN THIS AGREEMENT, THE AGGREGATE LIABILITY OF A PARTY WILL NOT EXCEED THREE TIMES (3X) THE GENERAL LIABILITY CAP. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT THE CUSTOMER'S PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE

 

10.2 Exclusion of Consequential and Related Damages. IN NO EVENT  WILL EITHER PARTY HAVE  ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES,  WHETHER  AN ACTION  IS  IN  CONTRACT  OR TORT  AND REGARDLESS  OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES  OR  IF  A  PARTY’S  REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

 

11. TERM AND TERMINATION.
 

This Agreement commences on the Effective Date and continues until terminated in accordance with the terms herein. Each Subscription Term will be specified in the applicable Order Form. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at LiftLab’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any LiftLab Platform has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In no event will termination relieve Customer of its obligation to pay any fees payable to LiftLab for the period prior to the effective date of termination. The sections titled “Fees,” “Proprietary Rights and Licenses,” “DPA,” “Confidentiality,” “Mutual Indemnification,” “Limitation of Liability,” and “General Provisions” will survive any termination or expiration of this Agreement.

 

12. GENERAL PROVISIONS.
 

The LiftLab Platform, Customer Data, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. LiftLab and Customer each represent that it is not named on any U.S. government denied-party list. Neither party will access or use the foregoing in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. Each party agrees to comply with any applicable anti-corruption or anti-bribery laws in the conduct of their respective obligations hereunder. This Agreement is the entire agreement between LiftLab and Customer regarding the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) or any other document supplied by either party is void. In the event of any conflict or inconsistency among the following documents, the order of precedence will be (1) the applicable Order Form, (2) any exhibit, schedule, or addendum to this Agreement, (3) the body of this Agreement, and (4) the Documentation. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries under this Agreement. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon(a) personal delivery, (b) the second business day after mailing, (c) the second business day after sending by confirmed facsimile, or (d), except for notices of termination or an indemnifiable claim (“Legal Notices”), the day of sending by email. Notices to LiftLab will be addressed to the attention of the CEO at the address set forth in the introduction to this Agreement or via email at notices@liftlab.com . Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer, and Legal Notices to Customer will be addressed to Customer and be clearly identifiable as Legal Notices. All other routine business or support notices to Customer will be addressed to the relevant LiftLab Platform system administrator or other business contacts designated by Customer. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. Either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The state and federal courts located in San Francisco County, California, will have exclusive jurisdiction over any dispute relating to this Agreement, and each party consents to the exclusive jurisdiction of those courts. This Agreement may be executed electronically, by facsimile, and in counterparts.