1.1. "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, "control" means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.3. "Customer Data" means all data submitted, stored, posted, displayed, transmitted or otherwise used together with the Subscription Services.
1.4. "Documentation" means the online user instructions and help files made available by 5CUPIDS.COM as part of the Subscription Services, as may be updated from time to time by 5CUPIDS.COM.
1.6. "Services" means the Subscription Services and any Ancillary Services.
1.7. "Statement of Work" or "SOW" means a statement of work entered into and executed by the parties describing Ancillary Services to be provided by 5CUPIDS.COM to Customer.
1.8. "Subscription Services" means the online, web-based data analytics and reporting technologies provided by 5CUPIDS.COM via the URL 5cupids.com or such other websites designated by 5CUPIDS.COM, including: (a) all proprietary technology (software, hardware, processes, algorithms, user interfaces, know-how, techniques, templates, designs and other tangible or intangible technical material or information) of 5CUPIDS.COM, its licensors and service providers used by 5CUPIDS.COM to provide the Subscription Services, and (b) associated support and maintenance services, as may be applicable.
1.9. "Third Party Offerings" means services delivered or performed by third parties independently of 5CUPIDS.COM related to the Subscription Services, or other online, web-based CRM, ERP, or other business application subscription services, and any associated offline products provided by third parties, that interoperate with the Subscription Services.
1.10. "Users" means Customer's or its Affiliates' employees, consultants, contractors or agents who are authorized by Customer or its Affiliates to access and use the Subscription Services and who have been supplied user identifications and passwords for such purpose.
2.2. Customer Data for Trial Services. ANY CUSTOMER DATA ENTERED INTO THE SUBSCRIPTION SERVICES DURING THE TRIAL SERVICES TERM AND ANY CHANGES MADE TO THE CUSTOMER DATA BY OR FOR CUSTOMER DURING THE TRIAL SERVICES TERM MAY BE PERMANENTLY LOST UNLESS CUSTOMER: (A) PURCHASES A SUBSCRIPTION TO THE SAME SUBSCRIPTION SERVICES AS THOSE COVERED DURING THE TRIAL SERVICES TERM, (B) PURCHASES UPGRADED SERVICES, OR (C) EXPORTS ITS CUSTOMER DATA BEFORE THE END OF THE TRIAL SERVICES TERM.
4.1 5CUPIDS.COM Obligations.
4.1.1. Availability. 5CUPIDS.COM will use commercially reasonable efforts to make the purchased Subscription Services available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime (with regard to which 5CUPIDS.COM will endeavor to provide at least 48 hours advance notice), or (b) any unavailability caused by circumstances beyond 5CUPIDS.COM's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or the unavailability or modification by third parties of Third Party Offerings.
4.1.2. Provisioning of the Subscription Services. 5CUPIDS.COM will host the Subscription Services and may update the functionality and user interface of the Subscription Services from time to time in its sole discretion as part of its ongoing improvement of the Subscription Services. The Subscription Services may be subject to certain limitations, such as, for example, limits on storage capacity for Customer Data. Any such limitations will be specified either in the Order Form or in the Documentation.
4.1.3. Support. 5CUPIDS.COM makes a variety of Subscription Services support offerings available to its customers and will provide Customer with the level of support to which Customer is entitled based on Customer's purchase.
4.6. Accuracy of Customer's Contact Information; Email Notices. Customer agrees to provide accurate, current and complete information as necessary for 5CUPIDS.COM to communicate with Customer from time to time regarding the Services, issue invoices or accept payment, or contact Customer for other account-related purposes. Customer agrees to keep any online account information current and inform 5CUPIDS.COM of any changes in Customer's legal business name, address, email address and phone number. Customer agrees to accept emails from 5CUPIDS.COM at the e-mail address specified by its Users for login purposes. In addition, Customer agrees that 5CUPIDS.COM may rely and act on all information and instructions provided to 5CUPIDS.COM by Users from the above-specified e-mail address.
5.2. Invoices and Payment. All Subscription Services fees will be invoiced in advance and in accordance with the applicable Order Form. Fees for Ancillary Services will be invoiced as set forth in an applicable SOW and/or Order Form. Except as otherwise set forth in the applicable Order Form or SOW, Customer agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date.
5.3. Overdue Charges. If 5CUPIDS.COM does not receive fees by the due date, then at 5CUPIDS.COM's discretion, (i) 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 (ii) 5CUPIDS.COM may condition future Services purchases and Order Forms on payment terms shorter than those specified in Section 5.2 (Invoices and Payment).
5.4. Suspension of Service. If any amounts owed by Customer for the Services are thirty (30) or more days overdue, 5CUPIDS.COM may, without limiting 5CUPIDS.COM's other rights and remedies, suspend Customer's and its Users' access to the Services until such amounts are paid in full.
5.5. Payment Disputes. 5CUPIDS.COM agrees that it will not exercise its rights under Section 5.3 (Overdue Charges) or 5.4 (Suspension of Service) if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
5.6. Taxes. Customer is solely responsible for the payment of all taxes, assessments, tariffs, duties or other fees imposed, assessed or collected by or under the authority of any governmental body (collectively, "Taxes") arising from 5CUPIDS.COM's provision of the Services hereunder, except any taxes assessed on 5CUPIDS.COM's net income. If 5CUPIDS.COM is required to directly pay Taxes related to Customer's use of the Subscription Services or receipt of any Ancillary Services hereunder, Customer agrees to promptly reimburse 5CUPIDS.COM for any amounts paid by 5CUPIDS.COM.
6.4. Statistical Information. 5CUPIDS.COM may monitor Customer's use of the Services and use data related to Customer's use in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services. Customer agrees that 5CUPIDS.COM may make such information publicly available, provided that such information does not incorporate any Customer Data and/or identify Customer or its Confidential Information. 5CUPIDS.COM retains all intellectual property rights in such statistical and performance information.
7.3. Exceptions. Confidential Information shall not include information that: (i) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party; (ii) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party; (iii) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to the Disclosing Party; or (iv) is independently developed by the Receiving Party without reference to or use of the Disclosing Party's Confidential Information.
7.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable law, regulation or legal process. The Receiving Party must, however: (i) provide the Disclosing Party with prompt written notice of the requirement to disclose, (ii) provide the Disclosing Party with reasonable assistance in the event the Disclosing Party wishes to oppose or contest such disclosure, and (iii) limit its disclosure to that strictly required by law, regulation or legal process.
7.5. Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
8.3. 5CUPIDS.COM Labs Disclaimer. SERVICES IDENTIFIED AS “5CUPIDS.COM LABS” OR BY A SIMILAR DESIGNATION ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTY WHATSOEVER, AND ARE EXCLUDED FROM ANY SUPPORT, UPDATE, AVAILABILITY OR UPTIME OBLIGATIONS, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO SECTIONS 3.1, 4.1 AND 8.1.
9.2. Indemnification by Customer. Customer, at its expense, will defend and pay any settlement amounts or damages awarded by a court of final jurisdiction arising out of any third party claim, suit or proceeding (i) alleging that the Customer Data infringes any trade secret, trademark, copyright, or patent issued as of the Effective Date; or (ii) arising from occurrence of the conditions set forth in Section 9.1(i)-(vi) above.
9.3. Conditions. The parties' obligations under this Section 9 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim under this Section, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party. The rights and remedies set forth in this Section 9 are subject to the limitations and exclusions set forth in Section 10 below and are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable third party claim.
10.2. Exclusion of Consequential and Related Damages. EXCEPT AS SET FORTH IN SECTION 10.3 BELOW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE AND/OR THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF 5CUPIDS.COM AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE REASONABLY FORESEEN THEM.
10.3. Exceptions. THE LIMITATIONS AND EXCLUSIONS OF SECTIONS 10.1 AND 10.2 ABOVE SHALL NOT APPLY TO EITHER PARTY'S BREACH OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS.
11.1. Term of Subscriptions to Subscription Services. Customer's subscription to use the Subscription Services begins on the start date specified in the Order Form and continues for the period set forth therein (each a "Subscription Term").
11.3. Retrieval of Customer Data. In the event of termination or expiration of the Subscription Term under an Order Form, 5CUPIDS.COM shall make Customer Data available for download by Customer in the format in which it is stored in the Subscription Services, provided Customer requests such return of Customer Data and pays all outstanding charges hereunder in full within 30 days after the termination or expiration effective date. After such 30-day period, 5CUPIDS.COM shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.
12.6. Publicity. 5CUPIDS.COM may reference and use Customer's name and trademarks and may disclose the nature of the Services provided hereunder in 5CUPIDS.COM business development and marketing efforts, including without limitation its web site.
12.9. Export. The Services utilize software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the Subscription Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Subscription Service, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Subscription Services may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. 5CUPIDS.COM and its licensors make no representation that the Service is appropriate or available for use in other locations. Each party shall be solely responsible for its required compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Customer Data contrary to law is prohibited. None of the Customer Data, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.