Master Subscription Agreement
THIS AGREEMENT AND THE TERMS OF USE AVAILABLE ON THE PALMTECH WEBSITE GOVERN CUSTOMER’S ACQUISITION AND USE OF THE PALMTECH SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THIS AGREEMENT BY CLICKING A BOX INDICATING ACCEPTANCE, OR, FOR FREE SERVICES, BY USING SUCH SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
Palmtech’s competitors are prohibited from accessing the Services, except with Palmtech’s prior written consent. In addition, the Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on January 11th, 2023. It is effective between Customer and Palmtech as of the date of Customer’s accepting this Agreement (the “Effective Date”).
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 direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement and any Order Forms entered into between us.
“Customer” or “You” means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity which have entered into Order Forms.
“Customer Data” means electronic data and information submitted by or for Customer to the Services.
“Palmtech” or “We,” “Us” or “Our” means Palmtech, a business unit of Porch.com, Inc.
“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 executed by Customer specifying the Services to be provided hereunder by Palmtech, including any addenda and supplements thereto.
“Purchased Services” means Services that Customer or Customer’s Affiliate purchase under an Order Form, as distinguished from Free Services or those provided pursuant to a free trial.
“Services” means the products and services that are ordered by Customer under an Order Form or provided to Customer or Users free of charge (as applicable) or under a free trial, and made available online by Us, including associated Palmtech offline or mobile components.
“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer have purchased a subscription (or in the case of any Services provided by Palmtech without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, Palmtech at Customer’s request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, Customer employees, consultants, contractors, and agents, and third parties with which Customer transacts business, such as borrowers.
2. FREE TRIAL
2.1 Free Trial. If Customer registers on the Palmtech website for a free trial, Palmtech will make one or more Services available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial for which Customer registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service(s), or (c) termination by us in our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING SECTIONS 8 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS) AND 9.1 (INDEMNIFICATION BY US), DURING THE FREE TRIAL, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND PALMTECH SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE PALMTECH’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $100.00. WITHOUT LIMITING THE FOREGOING, PALMTECH AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL WILL BE ACCURATE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 10.1 (LIMITATION OF LIABILITY), CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO PALMTECH AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
3. OUR RESPONSIBILITIES
3.1. Provision of Purchased Services. We will (a) make the Services available to Customer and Users pursuant to this Agreement and any applicable Order Forms, (b) provide Palmtech standard support at no additional charge, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Palmtech’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 Palmtech employees), Internet service provider failure or delay, or denial of service attack.
3.2. Protection of Customer’s Data. Palmtech will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer’s Data.
3.3. Palmtech Personnel. Palmtech will be responsible for the performance of our personnel (including our employees and contractors) and their compliance with our obligations under this Agreement, except as otherwise specified herein.
4. USE OF SERVICES
4.1 Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Purchased Services are purchased as subscriptions, (b) subscriptions for Purchased Services 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 (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
4.2 Usage Limits. Services are subject to usage limits, including, for example, the quantities specified in Order Forms. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service 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. If Customer exceeds a contractual usage limit, Palmtech may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding Our 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 promptly upon our request, and/or pay any invoice for excess usage in accordance with Section 5.2 (Invoicing and Payment).
4.3 Customer’s Responsibilities. Customer is responsible for all activity occurring under Users’ accounts and for Users’ compliance with this Agreement and Order Forms and for the accuracy, quality, and legality of Customer’s Data, the means by which Customer acquired Customer’s Data and Customer’s use of Customer’s Data with Our Services. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of Services and will notify Palmtech promptly of any such unauthorized access or use. Customer will use the Services only in accordance with this Agreement, Order Forms, and applicable laws and government regulations. Customer must (a) notify us promptly upon becoming aware of any unauthorized use of any User password or account (or any other breach of security of the Service) and (b) notify us promptly upon becoming aware of, and make a reasonable effort to stop, any unauthorized copying, distribution or other misuse of any aspect of the Service.
4.4 Usage Restrictions. Customer will not (a) make any Service available to anyone other than Users, or use any Service for the benefit of, anyone other than Customer, unless expressly stated otherwise in an Order Form, (b) sell, resell, license, sublicense, copy, modify, transfer, distribute, make available, rent, or lease any Service, or include any Service 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 the data, including third-party data, contained therein, (f) attempt to gain unauthorized access to any Service or its related systems or networks, (g) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, or use of any of Our Services to access or use any of Our intellectual property except as permitted under this Agreement, an Order Form, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) frame or mirror any part of any Service, other than framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes, or (j) disassemble, reverse engineer, or decompile a Service, or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service or (4) determine whether the Services are within the scope of any patent. You also must use reasonable security measures to access the Services and must not knowingly send, store or use any material containing any viruses, worms, Trojan horses or other malicious or harmful computer code, files, scripts, agents or programs in connection with the Services.
Any use of the Services in breach of this Agreement or Order Forms, by Customer or Users that in Palmtech’s sole judgment threatens the security, integrity, or availability of our services, may result in the immediate suspension of the Services, however Palmtech will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to such suspension.
5. FEES AND PAYMENT FOR PURCHASED SERVICES
5.1. Fees. Customer will pay all fees specified in Order Forms or SOWs without setoffs, withholdings or deductions of any kind. Except as otherwise specified herein or in an Order Form or SOW, (i) fees are based on Services 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.
5.2. Invoicing and Payment. Customer will provide Palmtech with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Palmtech. If Customer provides credit card information to Palmtech, Customer authorizes Palmtech to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 5.8. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Palmtech will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Palmtech and notifying Palmtech of any changes to such information.
5.3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Palmtech’s rights or remedies, (a) those 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, and/or (b) Palmtech may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment). Palmtech will be entitled to recover our reasonable costs of collection.
5.4. Suspension of Service and Acceleration. If any amount owing by Customer under this or any other agreement for Palmtech services is 30 or more days overdue (or 10 or more days overdue in the case of amounts Customer has authorized Palmtech to charge to Customer’s credit card), Palmtech may, without limiting Palmtech’s other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Palmtech services to Customer until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, Palmtech will give Customer at least 10 days’ prior notice that Customer’s account is overdue, in accordance with Section 12.2 (Communications) for billing notices, before suspending services.
5.5. Payment Disputes. Customer’s failure to pay some or all of a Palmtech invoice in good faith will not constitute a breach of this MSA (or the relevant Order Form(s)), or justify imposition of any late payment or collection fees or suspension of the Services, as long as all of the following requirements are satisfied:
a. You reasonably believe in good faith that the amount shown as due on the relevant invoice is incorrect;
b. You provide reasonably detailed written notice to us (including via email to our Customer Service team at [email protected] within forth-five (45) days of receiving the disputed invoice, explaining the basis on which you dispute the invoice (the “Bona Fide Payment Dispute Notice”);
c. As of the date you provide the Bona Fide Payment Dispute Notice or the due date of the disputed invoice (whichever is later), you have paid all undisputed amounts in accordance with this MSA and the applicable Order Form(s); and
e. You make a commercially reasonable, good faith effort to resolve such payment dispute within thirty (30) days after providing the Bona Fide Payment Dispute Notice (the “Good Faith Negotiation Period”).
If (i) at any time you fail to satisfy any of these criteria (a)-(c), or (ii) you fail to pay amounts identified on the Bona Fide Payment Dispute Notice within thirty (30) days after the Good Faith Negotiation Period expires or, if later, all related good faith negotiations have ceased, then each Party will have the right to exercise its remaining rights and remedies under this MSA (including either party’s right to terminate for breach without any additional cure period, and our right to seek its contractual remedies for non-payment).
5.6. Taxes. Our 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 Customer’s purchases hereunder. If Palmtech has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 5.6, Palmtech will invoice Customer and Customer will pay that amount unless Customer provides Palmtech with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Palmtech is solely responsible for taxes assessable against us based on our income, property, and employees.
5.7. Future Functionality. Customer agrees that Customer’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features. More generally, Customer agrees that by in entering into this MSA, neither party is relying on any other commitments, statements or other matters not expressly addressed in this MSA or an Order Form.
5.8. Price Increases. Palmtech reserves the right to increase its Fees at any time, except that Palmtech shall notify Customer of any increase in the Fees at least thirty (30) days’ in advance of such increase. 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.
6. PROPRIETARY RIGHTS AND LICENSES
6.1. Grant of Access. Subject to the terms and conditions of this MSA, Palmtech hereby grants to Customer or User the non-exclusive right to access and use the Services during the Term in accordance with the limitations in the Agreement (e.g., any usage volume terms and limitations to Customer’s particular legal entities, business units, projects, brands, products or services set forth therein). Subject to the limited rights expressly granted hereunder, we and our Affiliates, our licensors reserve all of our/their right, title, and interest in and to the Services, including all of our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
6.2. License to and Applications. Customer grants Palmtech, Palmtech’s Affiliates, and applicable contractors a worldwide, limited-term license to host, access, store, copy, display, use and otherwise process any program code created by or for Customer using a Service or for use by Customer with the Services as reasonably necessary for Palmtech to (a) provide, monitor and ensure proper operation of our Services and associated systems in accordance with this Agreement; (b) improve or enhance the Services and other Palmtech offerings; and (c) fulfill our obligations or exercise our rights under the Agreement. Subject to the limited licenses granted herein, Palmtech acquires no right, title, or interest from Customer or Customer’s licensors under this Agreement in or to such program code.
6.3 License to Customer’s Data. Customer grants Palmtech a worldwide, non-exclusive royalty-free, fully paid, perpetual, irrevocable, and fully sub-licensable and transferable license to use, reproduce, distribute, prepare derivative works of, publish, broadcast, publicly perform and display, make, use, import, offer to sell, sell, and otherwise transfer and exploit all copyrights, inventions, and other intellectual property rights in the Customer Data in any form and any medium, subject to our obligations and restrictions in the Privacy Policy relating to personal information.
6.4 License to Use Feedback. You grant to Palmtech and Palmtech’s Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Palmtech and/or Palmtech’s Affiliates’ services any suggestion, enhancement request, recommendation, correction, or other feedback provided by You or Users relating to the operation of Our or Our Affiliates’ services.
7. CONFIDENTIALITY
7.1. 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. Customer’s Confidential Information includes Customer’s Data; Our Confidential Information includes the Services; 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 Receiving Party can prove (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. The existence of this Agreement is not Confidential Information.
7.2. 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 not authorized by this Agreement and (ii) except as provided in this Agreement or 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 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. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Order Form to a subcontractor to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein.
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.
7.4. Ownership and Destruction of Confidential Information. As between Disclosing Party and Receiving Party, all Disclosing Party’s Confidential Information is the property of Disclosing Party, and no license or other rights are granted or implied other than those expressly set forth herein. Promptly after any request by Disclosing Party, Receiving Party will destroy or return to Disclosing Party all Confidential Information and materials in Receiving Party’s possession or control. However, Receiving Party may retain electronic copies of any computer records or electronic files containing any Disclosing Party Confidential Information that have been created pursuant to Receiving Party’s standard, reasonable archiving and backup practices.
7.5. Confidentiality Period. Receiving Party’s obligations with respect to Disclosing Party’s Confidential Information under Section 7 will remain in effect for the term of the Agreement and for three (3) years after any expiration or termination of the Agreement. Notwithstanding the foregoing, Receiving Party’s obligations under the Agreement will continue to apply to Confidential Information that qualifies as a trade secret or personal data under applicable law for as long as it so qualifies.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
8.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so, and that: (a) this MSA has been duly authorized, executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) to the best of its knowledge, no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of this MSA; and (c) to the best of its knowledge, the execution, delivery and performance of this MSA does not violate the terms or conditions of any other legally binding agreement.
8.2. Our Warranties. Palmtech warrants that during an applicable subscription term (a) this Agreement and the Order Forms accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer’s Data, (b) Palmtech will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) Palmtech will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies and our sole obligations are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
8.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SERVICES OR ANY MATTER WHATSOEVER 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. THE SERVICES ARE PROVIDED “AS IS,” 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.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by Palmtech. Palmtech will defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that any Purchased Service infringes or misappropriates such third party’s copyright in any country or a patent, trademark, or other intellectual property right of the U.S.A., (a “Customer Claim”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer by a court of competent jurisdiction as a result of, or for amounts paid by Customer under a settlement approved by Palmtech in writing of, a Customer Claim, provided Customer (a) promptly gives Palmtech written notice of the Claim, (b) gives Palmtech sole control of the defense and settlement of the Customer Claim (except that Palmtech may not settle any Customer Claim unless it unconditionally releases Customer of all liability), and (c) gives Palmtech all reasonable assistance, at Palmtech’s expense.
If Palmtech receives information about an infringement or misappropriation claim related to a Service, Palmtech may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Palmtech warranties under “Palmtech Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that our Services are the basis of the Customer Claim; (2) a Customer Claim arises from the use or combination of our Services or any part thereof with software, hardware, data, or processes not provided by Palmtech, if the Palmtech Services or use thereof would not infringe without such combination or a Customer Claim arises from the unauthorized alteration or modification by of the Services to the extent Customer’s Claim is based on such alteration or modification; (3) a Customer Claim arises from Services under an Order Form for which there is no charge; (4) a Customer Claim is based on traditional online storefront commerce functionality that is or was in general use in the industry; or (5) a Customer Claim arises from Customer’s use of the Services in violation of this Agreement or applicable Order Forms.
9.2. Indemnification by Customer. Customer will defend Palmtech and Palmtech’s Affiliates against any claim, demand, suit or proceeding made or brought against Palmtech by a third party based on a breach by you of Section 4 (Use of Services) of this MSA. Customer will also defend Palmtech and Palmtech’s Affiliates against any claim, demand, suit or proceeding made or brought against Palmtech by a third party 1) alleging that any of Customer’s Data or Customer’s use of Customer’s Data with Our Services infringes or misappropriates such third party’s intellectual property rights, or 2) arising from Customer’s use of the Services in an unlawful manner or in violation of the Agreement or Order Form (each a “Palmtech Claim”). Customer will indemnify Palmtech from any damages, attorney fees and costs finally awarded against Palmtech as a result of, or for any amounts paid by Palmtech under a settlement approved by Customer in writing of, a Palmtech Claim, provided we (a) promptly give Customer written notice of the Palmtech Claim, (b) give Customer sole control of the defense and settlement of the Palmtech Claim (except that Customer may not settle any Palmtech Claim unless it unconditionally releases Palmtech of all liability), and (c) give Customer all reasonable assistance, at Customer’s expense.
9.3. Exclusive Remedy. This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 9.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability.TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY 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.
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY 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.
THE PROVISIONS OF THIS SECTION 10 ALLOCATE RISKS UNDER THE AGREEMENT BETWEEN US, AND THE FEES CHARGED FOR THE SERVICES ARE BASED ON THIS ALLOCATION OF RISKS AND THESE LIMITATIONS OF LIABILITY.
11. TERM AND TERMINATION
11.1 Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions and/or Order Forms hereunder have expired or have been terminated in accordance with this MSA.
11.2. Term of Purchased 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, in the case of an annual subscription, or before the next billing date, in the case of a month-to-month subscription.
11.3. Termination. Either party may terminate this Agreement with or without cause. In the case of Customer’s termination, the effective date of such termination shall be the last date of the month in which such notice was given (the “Effective Date of Termination”).
Either Party may terminate an Order Form in accordance with their respective terms. Palmtech may terminate an Order Form with thirty (30) days’ notice for convenience. Either Party may terminate an Order Form for cause upon written notice if the other Party fails to cure any material breach thereof, or any material breach of this MSA, within thirty (30) days after receiving reasonably detailed written notice from the other Party alleging the breach.
11.4. Refund or Payment upon Termination. If this Agreement is terminated by Palmtech in accordance with Section 11.3 (Termination), Palmtech 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 Customer in accordance with Section 11.3, in no event will termination relieve Customer of Customer’s obligation to pay any fees payable to Palmtech for the period prior to the Effective Date of Termination.
11.5 Customer’s Data Portability and Deletion. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, Palmtech will make Customer’s Data available to Customer for export or download. After such 30-day period, Palmtech will have no obligation to maintain or provide any Customer’s Data.
11.6. Surviving Provisions. The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Customer’s Data Portability and Deletion,” “Surviving Provisions”, and “General Provisions” will survive any termination or expiration of this Agreement.
12. COMMUNICATIONS, GOVERNING LAW, AND JURISDICTION
12.1. Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and sent, in the case of Notice to Palmtech, to Legal, Porch.com, Inc. 411 1st Ave S, Ste 501, Seattle, WA, 98104, and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related and all other notices to you will be addressed to you.
12.2. Communications. Each party agrees not to make any communication to any third party that is reasonably likely to disparage, create a negative impression of, or in any way be harmful to the business or business reputation of the other party.
12.3. Agreement to Governing Law and Jurisdiction. The Agreement is governed by Delaware law and controlling United States federal law, without regard to conflicts of law rules, and each party agrees to the exclusive jurisdiction of the courts located in King County, Washington.
13. GENERAL PROVISIONS
13.1. Export Compliance. Customer agrees to comply with all applicable laws, regulations, orders and sanctions relating to prohibitions or limitations on relationships or transactions with prohibited countries or individuals (e.g., those administered by the U.S. Commerce or Treasury Departments). Customer shall not make the Services available to any individual or entity that is (i) located in a country that is subject to a United States government embargo, or (ii) is listed on any United States government list of prohibited or restricted parties.
13.2. Anti-Corruption. Customer agrees that Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any Palmtech employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify us at [email protected].
13.3 Entire Agreement and Order of Precedence. The Agreement is the entire agreement between Customer and Palmtech regarding Customer’s use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form and (2) this MSA.
13.3. Assignment. This Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.4 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.
13.4. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
13.5. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
13.6. 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.
