This Master Subscription Agreement is between BAYBRIDGEDIGITAL, an American corporation with its principal place of business located at 590 Madison avenue, 9th floor b2, new york, ny 10022-USA acting on its behalf or on behalf of one of its Affiliates ( “BayBridgeDigital”) ANDCUSTOMER (“Customer”)Individually named the “Party” or collectively “the Parties”This agreement governs the relationship between the parties and any current or future use of the BayBridgeDigital.
1. DEFINITIONS
Affiliate : means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
Control : for purposes of this definition, means director indirect ownership or control of more than 50% of the voting interests of the subject entity.
Agreement : means this Master Subscription Agreement and any exhibits, schedules and addenda hereto.
Beta Services : means BayBridgeDigital services or functionality that may be made available to Customer to try at its option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
Content : means information obtained by BayBridgeDigital from publicly available sources or its third party content providers and made available to Customer through the Services, Beta Services or pursuant to an Order Form.
Customer : means the customer named above together with its Affiliates which have signed Order Forms.
Customer Data : means electronic data and information submitted by or for Customer to the SFDC Platform.
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 or online order specifying the Services to be provided hereunder that is entered between Customer and BayBridgeDigital or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
Services : means the software installed as a managed package on Customer’s unique instance of the SFDC Platform and made available online by SFDC via <a href="https://appexchange.salesforce.com/results?keywords=baybridgedigital">https://appexchange.salesforce.com/</a>. “Services” excludes Content.
SFDC : means Salesforce.com.
SFDC Platform : means Customer’s unique instance of the online platform provided by SFDC on which the Services are installed as a managed package.
User : means an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by BayBridgeDigital without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, BayBridgeDigital at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business
2. SERVICES
BayBridgeDigital is at liberty to have any or all of its obligations performed by an Affiliate of its choice. Provision of ServicesBayBridgeDigital or it’s Affiliate will :
(a) make the Services and Content available to Customer pursuant to this Agreement and the applicable Order Forms, (b) provide applicable BayBridgeDigital standard support for the Services to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which BayBridgeDigital shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond BayBridgeDigital’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving BayBridgeDigital employees), Internet hosting or other third-party service provider failure or delay, or denial of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to BayBridgeDigital’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s use of the Services in accordance with this Agreement and the applicable Order Form.
Interaction with BayBridgeDigital Services.The Services operate as a managed packaged installed in Customer’s instance of the SFDC Platform. Customer acknowledges and agrees that Customer Data used in conjunction with such Services will not be stored in or accessed by the Services, but rather will be stored and will persist solely in the SFDC Platform or other systems controlled by Customer. Accordingly, BayBridgeDigital shall not be responsible for failure to store, delete, correct, or destroy Customer Data or for any damage or loss to Customer Data.
SubscriptionsUnless otherwise provided in the applicable Order Form, services and access to Content are purchased as subscriptions, 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, and any added subscriptions will terminate on the same date as the underlying subscriptions.
Usage Limits.Services and Content are subject to usage limits specified in Order Forms. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing one who will no longer use the Service or Content. If Customer exceeds a contractual usage limit, BayBridgeDigital may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding BayBridgeDigital’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services or Content promptly upon BayBridgeDigital’s request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below.
Beta Services.From time to time, BayBridgeDigital may make Beta Services available to Customer at no charge. Customer may choose to try such Beta Services or noting its sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered “Services” under this Agreement, however, all restrictions, BayBridgeDigital reservation of rights and Customer obligations concerning the Services, and use of Content, shall apply equally to Customer’s use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. BayBridgeDigital may discontinue Beta Services at any time in its sole discretion and may never make them generally available. The use of the Beta Services is under the sole responsibility of the customer. BayBridgeDigital will have no liability for any harm or damage arising out of or in connection with a Beta Service.
Professional Services.As mutually agreed by the Parties, and in conjunction with the Services, BayBridgeDigital may perform Professional Services, which may include implementation, training, or other consulting services. Such Professional Services shall be provided for a separate fee, which will be specified in an applicable in specific statement of work or work order.
RESPONSABILITIES
BayBridgeDigital Warranties.BayBridgeDigital warrants that during an applicable subscription term (a) the Services will perform materially in accordance with the applicable Order form description (b) it will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination”.
Customer Responsibilities.
Customer will be responsible for Users’ compliance with this Agreement and Order Forms, the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data, use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify BayBridgeDigital promptly of any such unauthorized access or use, and use Services and Content only in accordance with this Agreement, Order Forms and applicable laws and government regulations.
Usage Restrictions.
Customer will not (non-exhaustive list)(a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than Customer or Users, unless BDD expressly agrees. (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service 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 a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of BayBridgeDigital intellectual property except as permitted under this Agreement, copy a Service or any part, feature, function or user interface thereof, (h) copy Content except as permitted herein or in an Order Form, (i) frame or mirror any part of any Service or Content, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in the Order Form, (j) access any Service or Content in order to build a competitive product or service or to benchmark with a non-BayBridgeDigital product or service, or (k) reverse engineer any Service (to the extent such restriction is permitted by law). Customer’s or a User’s intentional violation of the foregoing, or any use of the Services in breach of this Agreement or Order Forms, by Customer or Users that in BayBridgeDigital’s judgment imminently threatens the security, integrity or availability of BayBridgeDigital’s services, may result in BayBridgeDigital’s immediate suspension of the Services and reserves the right to demand payment of any damages.
Removal of Content.
If BayBridgeDigital is required by any third party rights holder to remove Content, or receives information that Content provided to Customer may violate applicable law or third-party rights, BayBridgeDigital may discontinue Customer’s access to such Content through the Services, and/or may notify Customer that it must discontinue all use of such Content, and to the extent not prohibited by law Customer will do so and promptly remove such Content from its systems. If Customer does not take required action in accordance with the above, BayBridgeDigital may disable the applicable Content, or Service until the potential violation is resolved. If requested by BayBridgeDigital, Customer shall confirm such deletion and discontinuance of use in writing and BayBridgeDigital shall be authorized to provide a copy of such confirmation to any such third party claimant or governmental authority, as applicable.
Limitation of Liability.
EXCEPT FOR: (A) DAMAGES ARISING FROM A BREACH OF A PARTY’S OBLIGATIONS OF CONFIDENTIALITY OR PRIVACY UNDER SECTION 8 OF THIS AGREEMENT; (B) DAMAGES RESULTING FROM PERSONAL INJURY, DEATH OR TANGIBLE PROPERTY DAMAGE; (C) DAMAGES ARISING FROM FRAUDULENT, CRIMINAL OR ILLEGAL ACTS ON THE PART OF BAYBRIDGEDIGITAL, OR ITS AFFILIATES, CONTRACTORS, AGENTS OR EMPLOYEES; (D) DAMAGES RESULTING FROM A PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT; (E)DAMAGES, ATTORNERY FEES AND COSTS FINALLY A WARDED AGAINST EITHER PARTY OR AMOUNTS PAID BY EITHER PARTY UNDER A COURT-APPROVED SETTLEMENT APPROVED BY THE OTHER PARTY IN WRITING, RESULTING FROM A CLAIM, DEMAND, SUIT OR PROCEEDING MADE OR BOUGHT AGAINST (I) IN THE CASE OF CUSTOMER, BY A THIRD PARTY ALLEGING THAT USE OF ANY SERVICE IN ACCORDANCE WITH THIS AGREEMENT INFRINGES OR MISAPPROPRIATES SUCH THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS (II) IN THE CASE OF BAYBRIDGEDIGITAL, BY A THIRD PARTY ALLEGING THAT ANY CUSTOMER DATA INFRINGES OR MISAPPROPRIATES SUCH THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES (IN RELATION TO BAYBRIDGEDIGITAL) ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER (BEING EITHER CUSTOMER OR AN AUTHORIZED ACT ENTITY THAT SIGNS ORDER FORM(S) UNDER THIS AGREEMENT) IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
Exclusion of Consequential and Related Damages.
IN NO EVENT WILL BAYBRIDGEDIGITAL OR ITS AFFILIATES 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 OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
DURATION
This Agreement shall be effective as of the date of electronical signature (“Effective Date”)
Term of Agreement.This Agreement commences on the Effective Date and continues until all subscriptions hereunder have expired or have been terminated.
Term of Subscriptions.The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any renewal term will increase by up to 7% above the applicable pricing in the prior term, unless BayBridgeDigital provides Customer notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at BayBridgeDigital’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 Services has decreased from the prior term will result in re- pricing at renewal without regard to the prior term’s per-unit pricing.
TERMINATION
Termination.A party may terminate this Agreement for cause (i) upon 60 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.
Refund or Payment upon Termination.If this Agreement is terminated by Customer in accordance with the “Termination” section above, BayBridgeDigital will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by BayBridgeDigital in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve Customer of its obligation to pay any fees payable to BayBridgeDigital for the period prior to the effective date of termination.
Consequences of Termination. Any Order Forms between BAYBRIDGEDIGITAL and the Client governed by this Agreement in effect upon termination or expiration of this Agreement between BAYBRIDGEDIGITAL and the Client, shall continue to remain in effect for the remainder of the applicable Order Form term and shall continue to be governed by this Agreement (including for the avoidance of doubt, each party's relevant termination rights) as if it had not been terminated.
FEES AND PAYMENT
Fees. Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
Invoicing and Payment.Fees will be invoiced in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to BayBridgeDigital and notifying BayBridgeDigital of any changes to such information.
Overdue Charges.If any invoiced amount is not received by BayBridgeDigital by the due date, then without limiting BayBridgeDigital’s rights or remedies, 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.
Suspension of Service.If any charge owing by Customer is 30 days or more overdue, BayBridgeDigital may, without limiting its other rights and remedies, suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit and whose payment has been declined, BayBridgeDigital has given Customer at least 10 days’ prior notice that its account is overdue in accordance with the “Notices” section below.
Taxes.BayBridgeDigital’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 BayBridgeDigital has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, BayBridgeDigital will invoice Customer and Customer will pay that amount unless Customer provides BayBridgeDigital with a valid tax exemption certificate authorized by the appropriate taxing authority.
PROPERTY RIGHTS AND LICENCES
All rights, title and interest in and to the Services (including without limitation all intellectual property rights therein and all modifications, extensions, customizations, script or other derivative works of the Service(s) provided or developed by BayBridgeDigital) are owned exclusively by BayBridgeDigital or its licensors.
Reservation of Rights.Subject to the limited rights expressly granted hereunder, BAYBRIDGEDIGITAL, its licensors and Content providers reserve all their right, title and interest in and to the Services and Content and all modifications, enhancements and derivatives thereto or thereof, including all their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
Access to and Use of Content. Customer has the right to access and use applicable Content subject to the terms of applicable Order Forms and this Agreement.
License by Customer to Use Feedback. Customer grants to BayBridgeDigital and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of BayBridgeDigital’s or its Affiliates’ services.
CONFIDENTIALITY
Definition of Confidential Information.“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 BayBridgeDigital includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, 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.
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 and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors (in relation to BAYBRIDGEDIGITAL) 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 (in relation to BAYBRIDGEDIGITAL), legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate (in relation to BAYBRIDGEDIGITAL), legal counsel or accountants will remain responsible for such Affiliate’s (in relation to BAYBRIDGEDIGITAL), legal counsel’s or accountant’s compliance with this “Confidentiality” section.
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.
REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
Representations. Each party represents that it has validly entered this Agreement and has the legal power to do so.
Customer warranties. Customer will defend BayBridgeDigital against any claim, demand, suit or proceeding made or brought against BayBridgeDigital by a third party alleging that any Customer Data infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Services or Content in breach of the Agreement, Order Form or applicable law(each a “Claim Against BayBridgeDigital”), and will indemnify BayBridgeDigital from any damages, attorney fees and costs finally awarded against BayBridgeDigital as a result of, or for any amounts paid by BayBridgeDigital under a settlement approved by Customer in writing of, a Claim Against BayBridgeDigital, provided BayBridgeDigital (a) promptly gives Customer written notice of the Claim Against BayBridgeDigital, (b) gives Customer sole control of the defense and settlement of the Claim Against BayBridgeDigital (except that Customer may not settle any Claim Against BayBridgeDigital unless it unconditionally releases BayBridgeDigital of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense.
Disclaimers.EXCEPT AS EXPRESSLY PROVIDED HEREIN, BAYBRIDGEDIGITAL 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. CONTENT AND SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
GDPRThe General Data Protection Regulation (GDPR) is a comprehensive data protection law that regulates the use of personal data of EU residents and provides individuals rights to exercise control over their data. The GDPR does not only apply to European companies, it extends to any organization worldwide that targets or offers services or products to EU residents.The GDPR requires companies to be transparent and accountable for their use of personal data, and to be able to demonstrate this to both regulators and the individuals concerned. There is no requirement for personal data to stay in the EU, but transfers outside of the European Economic Area are restricted, meaning that unless the European Commission has assessed the country’s privacy regime and declared it to be “adequate”, the data must be further protected by contract, or other EU-approved means. For any transfers to non-adequate countries.To the extent that it collects, stores, processes, uses and/or discloses Personal Information in performing the Services under this Agreement, BAYBRIDGEDIGITAL must not do any act, omit any act or engage in any practice; ensure that its subcontractors and Sub-processors do not do any act, omit any act or engage in any practice; and ensure that every relevant subcontract makes it a breach of that subcontract by the subcontractor (including a Sub- processor) if the subcontractor does any act, omits any act or engages in any practice; that if done or omitted by the Customer, would be a breach of a Territory Privacy Principle or GDPR Rules; and/orwould be an interference with the privacy of an individual, within the meaning of that expression in the GDPR. Each party agrees that it will not engage in any act or practice that it knows will cause the other party to breach its obligations. Additionally, in connection with BAYBRIDGEDIGITAL’s obligations under this Section 10, Customer: agrees to comply with applicable law in using the Services; agrees not to request or require BAYBRIDGEDIGITAL to process Customer Data in a manner that would violate applicable law if such processing were carried out by the Customer; agrees that it must respect the express prohibitions and usage restrictions specified in any Order Form. The parties acknowledge that BAYBRIDGEDIGITAL is providing Customer with online cloud tools that the Customer must use appropriately, and the parties agree that if Customer causes a legal violation by failing to comply with its obligations under section 10, Customer bears full responsibility for that violation. BAYBRIDGEDIGITAL shall be liable for the acts and omissions of its Sub-processors to the same extent BAYBRIDGEDIGITAL would be liable if performing the services of each Sub-processor directly under the terms of this section 10, except as otherwise set forth in the Agreement.
Protection of Personal Information. BAYBRIDGEDIGITAL shall take reasonable steps to protect Personal Information against unauthorized access, misuse or loss and must return all such information to Customer (or if requested by Customer, destroy such information) upon termination or expiry of this Agreement in accordance with the Order Form. For the purpose of this Agreement, “Personal Information” has the meaning defined in the GDPR and refers to that Personal Information which is transferred by Users to the Service as Customer Data for the purposes of this Agreement; and “Data Subject” means any individual to whom Personal Information relates.
Complaints about Customer relating to Personal Information.
If BAYBRIDGEDIGITAL receives a complaint, from a regulator or Data Subject directly naming customer and relating to Customer’s failure to comply with its applicable privacy obligations under this Agreement, BAYBRIDGEDIGITAL shall promptly notify Customer, to the extent permitted by law. Upon Customer’s request, BAYBRIDGEDIGITAL shall provide Customer with commercially reasonable cooperation and assistance relating to any such complaint, to the extent Customer does not otherwise have access to relevant information requested.
Notification of Personal Information Requests. BAYBRIDGEDIGITAL shall, to the extent legally permitted, promptly notify Customer if it receives a request from an individual for access to, correction, amendment or deletion of that person’s Personal Information contained within Customer Data. BAYBRIDGEDIGITAL shall not respond to any such individual request without Customer’s prior written consent except to confirm that the request relates to Customer. In accordance with the requirements of applicable law, BAYBRIDGEDIGITAL shall provide Customer with commercially reasonable cooperation and assistance in relation to any request for access to that person’s Personal Information contained within Customer Data, to the extent legally permitted and to the extent Customer does not have access to such data through its use of the Services. If legally permitted, Customer shall be responsible for any costs arising from BAYBRIDGEDIGITAL provision of such assistance.
Complaints about BAYBRIDGEDIGITAL relating to Personal Information. If the Customer receives a complaint alleging an interference with the privacy of an individual in respect of any Services performed by the BAYBRIDGEDIGITAL (“Complaint”) it will (a) immediately notify BAYBRIDGEDIGITAL of only those details of the Complaint necessary to minimise any breach or prevent further breaches of this Agreement; and (ii) after the Customer has given or been given notice under this clause, it will keep BAYBRIDGEDIGITAL informed of all progress with the Complaint concerning the actions of the BAYBRIDGEDIGITAL. The Parties undertake to comply also with the California Consumer Privacy Act effective on 1 January 2020 (“CCPA”).
MISCELLENAOUS
Entire Agreement and Order of Precedence..This Agreement is the entire agreement between BayBridgeDigital and Customer regarding Customer’s use of Services and Content 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) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) any exhibit, schedule or addendum to this Agreement, (3) the body of this Agreement.
Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
Notices. 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 day of the receipt of a registered letter with acknowledgement of receipt(c) the second business day after sending by confirmed by email, or Notices to BAYBRIDGEDIGITAL will be addressed to the attention of the XxXXXXX, or via email to XXXXXBilling-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 notices to Customer will be addressed to the relevant Services system administrator designated by Customer.
WaiverNo failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
Severability. 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.
Assignment and Machinery of Government. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate (in the case of BAYBRIDGEDIGITAL) or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, BAYBRIDGEDIGITAL will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
ANTI BRIBERY
Each Party hereby undertakes that, at the date of the entering into force of the Contract, itself, its directors, officers or employees have not offered, promised, given, authorized, solicited or accepted any undue pecuniary or other advantage of any kind (or implied that they will or might do any such thing at any time in the future) in any way connected with the Contract and that it has taken reasonable measures to prevent subcontractors, agents or any other third parties, subject to its control or determining influence, from doing so. The Parties agree that, at all times in connection with and throughout the course of the Contract and thereafter, they will comply with and that they will take reasonable measures to ensure that their subcontractors, agents or other third parties, subject to their control or determining influence, will comply with the following provisions: Parties will prohibit the following practices at all times and in any form, in relation with a public official at the international, national or local level, a political party, party official or candidate to political office, and a director, officer or employee of a Party, whether these practices are engaged in directly or indirectly, including through third parties:
a) Bribery is the offering, promising, giving, authorizing or accepting of any undue pecuniary or other advantage to, by or for any of the persons listed above or for anyone else in order to obtain or retain a business or other improper advantage, e.g. in connection with public or private procurement contract awards, regulatory permits, taxation, customs, judicial and legislative proceedings. Bribery often includes: (i) kicking back a portion of a contract payment to government or party officials or to employees of the other contracting Party, their close relatives, friends or business partners or (ii) using intermediaries such as agents, subcontractors, consultants or other third parties, to channel payments to government or party officials, or to employees of the other contracting Party, their relatives, friends or business partners.
b) Extortion or Solicitation is the demanding of a bribe, whether or not coupled with a threat if the demand is refused. Each Party will oppose any attempt of Extortion or Solicitation and is encouraged to report such attempts through available formal or informal reporting mechanisms, unless such reporting is deemed to be counter-productive under the circumstances.
c) Trading in Influence is the offering or Solicitation of an undue advantage in order to exert an improper, real, or supposed influence with a view of obtaining from a public official an undue advantage for the original instigator of the act or for any other person.
d) Laundering the proceeds of the Corrupt Practices mentioned above is the concealing or disguising the illicit origin, source, location, disposition, movement or ownership of property, knowing that such property is the proceeds of crime. “Corruption” or “Corrupt Practice(s)”, as used in this ICC Anti-corruption Clause, shall include Bribery, Extortion or Solicitation, Trading in Influence and Laundering the proceeds of these practices. With respect to third parties, subject to the control or determining influence of a Party, including but not limited to agents, business development consultants, sales representatives, customs agents, general consultants, resellers, subcontractors, franchisees, lawyers, accountants or similar intermediaries, acting on the Party’s behalf in connection with marketing or sales, the negotiation of contracts, the obtaining of licenses, permits or other authorizations, or any actions that benefit the Party or as subcontractors in the supply chain, Parties should instruct them neither to engage nor to tolerate that they engage in any act of corruption; not use them as a conduit for any corrupt practice; hire them only to the extent appropriate for the regular conduct of the Party’s business; and not pay them more than an appropriate remuneration for their legitimate services. If a Party, as a result of the exercise of a contractually-provided audit right, if any, of the other Party’s accounting books and financial records, or otherwise, brings evidence that the latter Party has been engaging in material or several repeated breaches of Paragraphs below above, it will notify the latter Party accordingly and require such Party to take the necessary remedial action in a reasonable time and to inform it about such action. If the latter Party fails to take the necessary remedial action or if such remedial action is not possible, it may invoke a defence by proving that by the time the evidence of breach(es) had arisen, it had put into place adequate anti-corruption preventive measures, as described in Article 10 of the ICC Rules on Combating Corruption 2011, adapted to its particular circumstances and capable of detecting corruption and of promoting a culture of integrity in its organization. If no remedial action is taken or, as the case may be, the defence is not effectively invoked, the first Party may, at its discretion, either suspend or terminate the Contract, it being understood that all amounts contractually due at the time of suspension or termination of the Contract will remain payable, as far as permitted by applicable law. Any entity, whether an arbitral tribunal or other dispute resolution body, rendering a decision in accordance with the dispute resolution provisions of the Contract, shall have the authority to determine the contractual consequences of any alleged non-compliance with this ICC Anti-corruption Clause.
Governing Law and Venue. 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 courts located in New York, United States will have exclusive jurisdiction over any dispute relating to this Agreement, and each party consents to the exclusive jurisdiction of those courts.
Electronic signature. This Deed is signed by each of the Parties using an advanced electronic signature process (AES) implemented by a third-party service provider, DocuSign, which guarantees the security and integrity of digital copies. The Parties expressly agree that this Deed, signed electronically via DocuSign: (i) constitutes the original; (ii) constitutes literal evidence: it has the same evidentiary value as a handwritten document signed on paper and may be validly used against the Parties; (iii) its electronic signature is to be considered as an original signature, and (iv) is likely to be produced in court as literal evidence in the event of disputes, including disputes between the Parties. Accordingly, the Parties acknowledge that the electronically signed instrument is evidence of its contents, the identity of the signatory and his consent. The deed is drawn up in a single original digital copy, a copy of which will be delivered to each of the Parties directly by DocuSign, which is in charge of implementing the advanced electronic signature solution.
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