Effective Date: Mar 7, 2022
THIS MASTER SUBSCRIPTION TERMS OF SERVICE (“AGREEMENT”) GOVERNS CUSTOMER’S ACQUISITION AND USE OF LOXO SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
This Agreement is entered into by and between Loxo Holdings, LLC (“Loxo” or “We”) and the entity or person placing an order for or accessing any Services (“Customer” or “you”).
This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
This Agreement permits Customer to purchase subscriptions to online software-as-a-service products and other services from Loxo pursuant to any Loxo ordering documents, online registration, order descriptions or order confirmations referencing this Agreement (“Order Form(s)”) and sets forth the basic terms and conditions under which those products and services will be delivered.
Please note that we offer many services. Your use of Loxo products or services are provided by Loxo pursuant to a separate manually or digitally-executed agreement. Those additional terms become part of your agreement with us, if you use the services.
IF CUSTOMER REGISTERS FOR A FREE TRIAL OF LOXO SERVICES OR FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES.
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) REGISTERING FOR A FREE ACCOUNT AND USING FREE 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” OR “YOU” 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.
The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
LOXO’S direct competitors are prohibited from accessing the Services, except with Loxo’s prior written consent.
Modifications: From time to time, Loxo may modify this Agreement. Unless otherwise specified by Loxo, changes become effective for Customer upon renewal of Customer’s current Subscription Term (as defined below) or entry into a new Order Form. Loxo will use reasonable efforts to notify Customer of the changes through communications via Customer’s account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Order Form, and in any event continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version. If Loxo specifies that changes to the Agreement will take effect prior to Customer’s next renewal or order (such as for legal compliance or product change reasons) and Customer objects to such changes, Customer may terminate the applicable Subscription Term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the applicable Services for the terminated portion of the Subscription Term, commencing on the date notice of termination was received.
We reserve the right to modify our Services at any time, with or without notice to you. For example, we may add or remove functionality or features, and we may suspend or stop a particular feature altogether. We also reserve the right to charge a fee for any of our features at any time. If you don’t like any changes, you can stop using our Services at any time subject to the terms and conditions of this Agreement.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT. THIS AGREEMENT CONTAINS MANDATORY ARBITRATION PROVISIONS THAT REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OR CLASS ARBITRATIONS OF ANY KIND. PLEASE READ IT CAREFULLY.
“Affiliate” means any entity under the control of Customer where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity.
“Agreement” means this Master Subscription Agreement.
“Acceptable Use Policy” means Loxo’s Acceptable Use Policy, available at Acceptable Use Policy or a successor URL.
“Beta Services” means Loxo 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 Loxo 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, as more fully described in the Documentation.
“Customer” 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 (for so long as they remain Affiliates) which have entered into Order Forms.
“Contractor” means an independent contractor or consultant who is not a competitor of Loxo.
“Customer Data” means any electronic data or information of any type, excluding Content and Non-Loxo Applications, that is submitted, uploaded or imported to the Services by or on behalf of Customer, including without limitation: (a) data from a previous database system brought over in a data migration (b) data provided by or about People that are collected through using the Services.
“Customer Properties” means Customer’s websites, apps, or other offerings owned and operated by (or for the benefit of) Customer through which Customer uses the Services to communicate with People.
“Dashboard” means Loxo’s user interface for accessing and administering the Services that Customer may access via the web or the Loxo Services.
“Documentation” means the technical user documentation provided with the Services.
“Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to any Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement.
“Feedback” means comments, questions, suggestions or other feedback relating to any Loxo product or service. Feedback does not include any Customer Data.
“Free Services” means Services that Loxo makes available to Customer free of charge.
“Intellectual Property Rights” include all valid patents, trademarks, copyrights, trade secrets, moral rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all renewals and extensions thereof, and all improvements to any of the foregoing, regardless of whether any of such rights arise under the laws of any state, country or other jurisdiction.
“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Non-Loxo Application” means Web-based, mobile, offline or other software functionality that interoperates with a Service, that is provided by Customer or a third party and/or listed on a Marketplace or under similar designation. Non-Loxo Applications, other than those obtained or provided by Customer, will be identifiable as such.
“Order Form” means a written or electronic form to order the Services or an online order completed through Loxo’s website. Upon execution by the parties (or, in the case of electronic orders, confirmation and placement of the order), each Order Form will be subject to the terms and conditions of this Agreement.
“People” (in the singular, “Person”) means Customer’s end user customers, applicants, candidates, contacts, potential end user customers, candidates, applicants, and other users of and visitors to the Customer Properties. People or Person does not include the customers of Customer’s end user customers.
“Sensitive Personal Information” means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”) not authorized or covered by a duly executed Business Associate Agreement with Loxo; or (iii) any other personal data of an EU citizen deemed to be in a “special category” (as identified in EU General Data Protection Regulation or any successor directive or regulation).
“Purchased Services” means Services that Customer or Customer’s Affiliate purchases under an Order Form or online purchasing portal, 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 online purchasing portal, or provided to Customer free of charge (as applicable) or under a free trial, and made available online by Loxo, including associated Loxo offline or mobile components, as described in the Documentation. “Services” exclude Content and Non-Loxo Applications.
“Taxes” means any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Loxo.
“Third-Party Platform(s)” means any software, software-as-a-service, data sources or other products or services not provided by Loxo that are integrated with or otherwise accessible through the Services.
“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 has purchased a subscription (or in the case of any Services provided by Loxo without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, Loxo 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.
2.1. Services Overview. Loxo’s Services are a suite of software-as-a-service recruiting solutions offered through an online platform. The Services are designed to enable Customer to manage communications and activities related to People and a) the entire end-to-end recruitment lifecycle, or b) to manage sub-stages of the recruitment lifecycle, including, sourcing, recruiting, and talent acquisition initiatives through modularized products or services and c) to provide a Dashboard for accessing and managing Customer Data.
2.2. Provision of Services. Each Service is provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term”). Customer will purchase and Loxo will provide the specific Services as specified in the applicable Order Form. Loxo will (a) make the Services and Content available to Customer pursuant to this Agreement, and the applicable Order Forms and Documentation, (b) provide applicable Loxo standard support for the Purchased Services to Customer at no additional charge, and/or upgraded support if purchased, (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 Loxo shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Loxo’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 Loxo employees), Internet service provider failure or delay, Non-Loxo Application, or denial of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to Loxo’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 and Users’ use of the Services in accordance with this Agreement, the Documentation and the applicable Order Form.
2.3. Protection of Customer Data. Loxo will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). The terms of the data processing addendum at https://www.loxo.co/legal/dpa (“DPA”) posted as of the Effective Date are hereby incorporated by reference. To the extent Personal Data from the European Economic Area (EEA), the United Kingdom and Switzerland are processed by Loxo, the Standard Contractual Clauses shall apply, as further set forth in the DPA. For the purposes of the Standard Contractual Clauses, Customer and its applicable Affiliates are each the data exporter, and Customer’s acceptance of this Agreement, and an applicable Affiliate’s execution of an Order Form, shall be treated as its execution of the Standard Contractual Clauses and Appendices. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, Loxo will make Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, Loxo will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
2.4. Loxo Personnel. Loxo will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with Loxo’s obligations under this Agreement, except as otherwise specified in this Agreement.
2.5. Free Services. Loxo may make Free Services available to Customer. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall control. Free Services are provided to Customer without charge up to certain limits as described in the Documentation. Usage over these limits requires Customer’s purchase of additional resources or services. Customer agrees that Loxo, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that Loxo will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer’s access to the Free Services for any reason, provided that if Loxo terminates Customer’s account, except as required by law Loxo will provide Customer a reasonable opportunity to retrieve its Customer Data.
2.6. Beta Offerings. Customer may choose to use Beta Offerings in its sole discretion. Beta Offerings may not be supported and may be changed at any time without notice. Beta Offerings may not be as reliable or available as the Service. Beta Offerings are not subject to the same security measures as in the Security Policy. Loxo will have no liability arising out of or in connection with Beta Offerings. CUSTOMER USES BETA OFFERINGS AT ITS OWN RISK.
NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION” SECTION BELOW, THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND LOXO SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE LOXO’S LIABILITY WITH RESPECT TO THE FREE SERVICES SHALL NOT EXCEED $50.00. WITHOUT LIMITING THE FOREGOING, LOXO AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE FREE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO LOXO AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE FREE SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
3.1. Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal, (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. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Loxo regarding future functionality or features.
3.2. General Restrictions. Customer will not (a) make any Service or Content available to anyone other than Customer or Users, or use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-Loxo Application 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 or Non-Loxo Application 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, copy or use any of Loxo intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works of a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) 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 Documentation, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content 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.
3.3. Loxo APIs. If Loxo makes access to any APIs available as part of the Services, Loxo reserves the right to place limits on access to such APIs (e.g., limits on numbers of calls or requests). Further, Loxo may monitor Customer’s usage of such APIs and limit the number of calls or requests Customer may make if Loxo believes that Customer’s usage is in breach of this Agreement or may negatively affect the security, operability, or integrity of the Services (or otherwise impose liability on Loxo).
3.4. Usage Limits. Services and Content are subject to usage limits specified in Order Forms and Documentation. If Customer exceeds a contractual usage limit, Loxo may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding Loxo’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 Loxo’s request, and/or pay any invoice for excess usage in accordance with the “Fee’s and Payment” section below.
3.5. Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
3.6. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment.
3.7. Contractors and Affiliates. Customer may permit its Contractors and its Affiliates’ employees and Contractors to serve as Permitted Users, provided Customer remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement, and any use of the Services by such individuals is for the sole benefit of Customer.
3.8. Removal of Content and Non-Loxo Applications. If Customer receives notice, including from Loxo, that Content or a Non-Loxo Application may no longer be used or must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the Acceptable Use and External Facing Services Policy, Customer will promptly do so. If Customer does not take required action, including deleting any Content Customer may have downloaded from the Services, in accordance with the above, or if in Loxo’s judgment continued violation is likely to reoccur, Loxo may disable the applicable Content, Service and/or Non-Loxo Application. If requested by Loxo, Customer shall confirm deletion and discontinuance of use of such Content and/or Non-Loxo Application in writing and Loxo shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if Loxo 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, Loxo may discontinue Customer’s access to Content through the Services.
3.9. As part of the Services as specified in the applicable Order Form, Loxo may include credits for contact information as well as access to “Content”. Loxo allows you to export person record profiles with many details including name, contact details, work history, education, etc. The number of credits in the Customer plan correlates with the number of contacts that you can prospect each billing cycle. The number of credits in the Customer plan also correlates to the maximum number of credits per user license annually that can be exported which are specifically obtained from Loxo services and “Content” , unless Loxo enters into a separate agreement with Customer that specifies a different credit limit, governed by an applicable further Order Form. THERE ARE NO LIMITS FOR “CUSTOMER DATA” THAT CAN BE EXPORTED. THE CREDIT LIMITS ONLY APPLIES TO LOXO PROVIDED DATA AND “CONTENT”
4.1. Non-Loxo Products and Services. Loxo or third parties may make available third-party products or services, including, for example, Non-Loxo Applications, routing and transmitting to you the applicable third party services via links, implementation and other consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any Non-Loxo provider, product or service is solely between Customer and the applicable Non-Loxo provider. Loxo does not warrant or support Non-Loxo Applications or other Non-Loxo products or services, whether or not they are designated by Loxo as “certified” or otherwise, unless expressly provided otherwise in an Order Form. Loxo is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-Loxo Application or its provider. We neither control nor endorse, nor is Loxo responsible for, any third party services, including the accuracy, integrity, quality, legality, usefulness or safety of third party services, or any intellectual property rights therein. Nothing in this Agreement shall be deemed to be a representation or warranty by Loxo with respect to any third party services. In addition, the availability of any Non-Loxo Applications through the Service does not imply our endorsement of, or our affiliation with, any provider of such third party services, nor does such availability create any legal relationship between you and any such provider.
4.2. Integration with Non-Loxo Applications. The Services may contain features designed to interoperate with Non-Loxo Applications. Loxo cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Loxo Application ceases to make the Non-Loxo Application available for interoperation with the corresponding Service features in a manner acceptable to Loxo.
5.1. Data Processing by Loxo. All data processing activities by the Service will be governed by the Data Processing Addendum (“DPA”) incorporated by reference herein.
5.2. Rights in Customer Data. As between the parties, Customer will retain all right, title and interest in and to the Customer Data as provided to Loxo. Subject to the terms of this Agreement, Customer hereby grants to Loxo a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services to Customer.
5.3. Storage of Customer Data. Loxo does not provide an archiving service. Loxo agrees only that it will not intentionally delete any Customer Data from any Service prior to termination of Customer’s applicable Subscription Term and expressly disclaims all other obligations with respect to storage.
5.4. Customer Obligations.
a) In General. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Loxo that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Data as contemplated in this Agreement (including granting Loxo the rights in Section 4.1 (Rights in Customer Data)) and that no Customer Data will violate or infringe (i) any third party Intellectual Property Rights or, publicity, privacy, or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreements governing the Customer Properties or Customer’s accounts with any Third-Party Platforms. Customer further represents and warrants that all Customer Data complies with the Acceptable Use Policy. Customer will be fully responsible for any Customer Data submitted to the Services by any Person as if it was submitted by Customer.
b) No Sensitive Personal Information. Except as otherwise expressly agreed between the Parties in writing by entering into a business associate agreement for HIPAA data, Customer specifically agrees not to use the Services to collect, store, process or transmit any Sensitive Personal Information. Customer acknowledges that Loxo is not a payment card processor and that the Services are not PCI DSS compliant. Except for Loxo’s obligations as a business associate pursuant to this Agreement, Customer shall be responsible for any Sensitive Personal Information it submits to the Service, and Loxo will treat such submissions as Customer Data as defined in this Agreement such that Loxo is not subject to any additional obligations that apply to Sensitive Personal Information.
c) Compliance with Laws. Customer agrees to comply with all applicable Laws in its use of the Services. Without limiting the generality of the foregoing, Customer will not engage in any unsolicited advertising, marketing, or other activities using the Services, including without limitation any activities that violate the Telephone Consumer Protection Act of 1991, CAN-SPAM Act of 2003 or any other anti-spam laws and regulations.
5.5. Indemnification by Customer. Customer will indemnify, defend and hold harmless Loxo from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to any Customer Data, Content, Customer communications, Customer’s use of a Third-Party Platform(s), browser extensions, plugins, third-party apps, or breach or alleged breach by Customer of Section 3.4 (Customer Obligations). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Loxo at Customer’s expense. Notwithstanding the foregoing sentence, (a) Loxo may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) Customer will not settle any claim without Loxo’s prior written consent, unless the settlement fully and unconditionally releases Loxo and does not require Loxo to pay any amount, take any action, or admit any liability.
5.6. Indemnification by Loxo. Loxo will defend Customer from and against any claim by a third party alleging that a Service when used as authorized under this Agreement infringes any Intellectual Property Rights and will indemnify and hold harmless Customer from and against any damages and costs finally awarded against Customer or agreed in settlement by Loxo (including reasonable attorneys’ fees) resulting from such claim, provided that Loxo will have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for Loxo to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of a Service is (or in Loxo’s opinion is likely to be) enjoined, if required by settlement or if Loxo determines such actions are reasonably necessary to avoid material liability, Loxo may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using such Service; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement and refund to Customer the fees paid by Customer for the portion of the Subscription Term that was paid by Customer but not rendered by Loxo. The foregoing indemnification obligation of Loxo will not apply: (1) if such Service is modified by any party other than Loxo, but solely to the extent the alleged infringement is caused by such modification; (2) if such Service is combined with products or processes not provided by Loxo, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of such Service; (4) to any action arising as a result of Customer Data or any third-party deliverables or components contained within such Service; (5) to the extent the alleged infringement is not caused by the particular technology or implementation of the Service but instead by features common to any similar product or service; (6) to any action arising from Customer’s use of Third Party Platforms or Apps; or (7) if Customer settles or makes any admissions with respect to a claim without Loxo’s prior written consent. THIS SECTION SETS FORTH LOXO’S AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT OR THIRD-PARTY CLAIM DESCRIBED IN THIS SECTION.
5.7. Content You Post. Loxo may provide opportunities for Customer to post text, photographs, videos, or other Content on the Services. Customer can only post Content if Customer owns all the rights to that Content, or if another rights holder has given Customer permission.
Customer does not transfer ownership of Content simply by posting it. However, by posting Content, Customer grants Loxo, our agents, licensees, and assigns an irrevocable, perpetual (non-exclusive) right and permission to reproduce, encode, store, copy, transmit, publish, post, broadcast, display, publicly perform, adapt, modify, create derivative works of, exhibit, and otherwise use Customer Content. Without those rights, Loxo couldn’t offer our Services. Please note that this license continues even if you stop using our Services.
Customer agrees to indemnify, release, and hold Loxo harmless from any and all liability, claims, actions, loss, harm, damage, injury, cost or expense arising out of any Content Customer posts.
Keep in mind that if you send Loxo any information, ideas, suggestions, or other communications to Loxo, those communications will not be confidential. Moreover, unless we tell you otherwise, Loxo reserves the right to reproduce, use, disclose, and distribute such communications without any obligation to Customer.
6.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
6.2. Limited Warranty. Loxo warrants, for Customer’s benefit only, that each Service will operate in substantial conformity with the applicable Documentation. Loxo’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for Loxo to use commercially reasonable efforts to correct the reported non-conformity, or if Loxo determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 6.2 will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to use provided on a no-charge, trial or evaluation basis.
6.4. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALL SERVICES ARE PROVIDED “AS IS”. NEITHER LOXO NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. LOXO DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES LOXO WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS OR CORRUPTION. LOXO MAKES NO REPRESENTATION OR WARRANT AS TO THE COMPLETENESS, ACCURACY OR RELIABILITY OF THE DATA; ASSUMES NO LIABILITY FOR MISTAKES INNACCURACIES OR INCONSISTENCIES OR SATISFACTORY QUALITY, AND/OR FITNESS FOR PARTICULAR PURPOSE. LOXO DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR THE DATA AND CONTENT OBTAINED / TRANSMITTED BY CUSTOMER OR OTHERS, AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR UNAUTHORIZED USE OR MISUSE OF CONTENT OR CUSTOMER DATA. ACCORDINGLY, THE CUSTOMER ASSUMES ALL LIABILITIES AND RESPONSIBILITIES FOR ANY ACTIONS TAKEN OR NOT TAKEN REGARDING CUSTOMERS USE OF CONTENT AND CUSTOMER DATA.
LOXO SHALL NOT BE LIABLE FOR THE RESULTS OF ANY COMMUNICATIONS SENT OR ANY COMMUNICATIONS THAT WERE FAILED TO BE SENT USING THE SERVICES. LOXO SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS, THIRD PARTY APPS, OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF LOXO. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. BOTH LOXO AND CUSTOMER CONFIRM THAT THEY HAVE ENTERED INTO THE AGREEMENT WITH THE KNOWLEDGE OF THIS WARRANTY LIMITATION. FOR ANY BREACH OF A WARRANTY ABOVE, CUSTOMER’S EXCLUSIVE REMEDIES ARE THOSE DESCRIBED IN THE “TERM AND TERMINATION” AND “REFUND OR PAYMENT UPON TERMINATION” SECTIONS.
7.1. Limitation of Liability. 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 AND ITS AFFILIATES 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 AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
7.2. 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.
Loxo agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of any Service or Customer Data, as further described in Loxo’s Network and Security Policy. However, Loxo will have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Loxo’s control.
9.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Loxo, its Affiliates, its licensors and Content Providers reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
9.2. Access to and Use of Content. Customer has the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation.
9.3. License by Customer to Loxo. Customer grants Loxo, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Non-Loxo Applications and program code created by or for Customer using a Service or for use by Customer with the Services, and Customer Data, each as appropriate for Loxo to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. If Customer chooses to use a Non-Loxo Application with a Service, Customer grants Loxo permission to allow the Non-Loxo Application and its provider to access Customer Data and information about Customer’s usage of the Non-Loxo Application as appropriate for the interoperation of that Non-Loxo Application with the Service. Subject to the limited licenses granted herein, Loxo acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, Non-Loxo Application or such program code.
9.4. License by Customer to Use Feedback. Customer grants to Loxo and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and make and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of Loxo’s or its Affiliates’ services.
10.1. Fees and Payment. 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, unless otherwise specified in the Order Forms.
10.2. Invoicing and Payment. Customer will provide Loxo with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Loxo. If Customer provides credit card information to Loxo, Customer authorizes Loxo 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 the “Term of Purchased Subscriptions” section below. 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, Loxo will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Loxo and notifying Loxo of any changes to such information.
10.3. Invalid Payment. If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to Loxo and Loxo may, in its sole discretion, either (i) invoice Customer directly for the deficient amount, (ii) continue billing the Credit Card once it has been updated by Customer (if applicable) or (iii) terminate this Agreement.
10.4. Overdue Charges. If any invoiced amount is not received by Loxo by the due date, then without limiting Loxo’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) Loxo may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above.
10.5. Suspension of Service for Non-Payment and Acceleration. If any charge owing by Customer under this or any other agreement for services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized Loxo to charge to Customer’s credit card), Loxo may, without limiting its 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 Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, Loxo will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section below for billing notices, before suspending services to Customer.
10.6. Payment Disputes. Loxo will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
10.7. Taxes. Loxo’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 Loxo has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Loxo will invoice Customer and Customer will pay that amount unless Customer provides Loxo with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Loxo is solely responsible for taxes assessable against it based on its income, property and employees.
11.1. Term. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
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 the initial term, unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Loxo’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length 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.
11.3. Termination. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
11.4. Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with the “Termination” section above, Loxo 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 Loxo in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to Loxo for the period prior to the effective date of termination.
11.5. Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all Services (including any and all related Loxo Technology) and delete (or, at Loxo’s request, return) any and all copies of the Documentation, any Loxo passwords or access codes and any other Loxo Confidential Information in its possession. Customer acknowledges that following termination, it will have no further access to any Customer Data input into any Service, and that Loxo may delete any such data as may have been stored by Loxo at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise. Company will make all Customer Data available to Customer for electronic retrieval. One full data backup Is available by request at no cost.
11.6. Surviving Provisions. The sections titled “General Restrictions”, “Free Services,” “Fees and Payment,” “Storage of Customer Data”, “Proprietary Rights and Licenses,” “Confidentiality,” “Content You Post”, “Warranty Disclaimer”, “Customer Obligations”, “Indemnification by Customer,”, “Indemnification”, “Limitation of Liability,” “Refund or Payment upon Termination”, “Term and Termination”, “Removal of Content and Non-Loxo Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as Loxo retains possession of Customer Data.
12.1. 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. Confidential Information of Customer includes Customer Data; Confidential Information of Loxo includes the Services and Content, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes 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 knowledge of any breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Loxo services.
12.2. Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its 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 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, Loxo may disclose the terms of this Agreement and any applicable Order Form to a contractor or Non-Loxo Application Provider to the extent necessary to perform Loxo’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
12.3. 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.
13.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be null and void.
13.2. Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
13.3. Governing Law; Dispute Resolution.
a) Direct Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, whether arising in contract, tort or otherwise, (“Dispute”), the parties shall first use their best efforts to resolve the Dispute. If a Dispute arises, the complaining party shall provide written notice to the other party in a document specifically entitled “Initial Notice of Dispute,” specifically setting forth the precise nature of the dispute (“Initial Notice of Dispute”). If an Initial Notice of Dispute is being sent to Loxo it must be emailed to firstname.lastname@example.org and sent via mail to:
Attn: Legal Department Loxo Lohman’s Crossing Road Ste-504 #105 Austin TX 78734
Following receipt of the Initial Notice of Dispute, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interest, attempt to reach a just and equitable solution of the Dispute that is satisfactory to both parties (“Direct Dispute Resolution”). If the parties are unable to reach a resolution of the Dispute through Direct Dispute Resolution within thirty (30) days of the receipt of the Initial Notice of Dispute, then the Dispute may subsequently be resolved in a court of law as set forth below.
b) Choice of Law and Jurisdiction. FOR ANY CLAIM WHICH IS NOT SUBJECT TO THIS DISPUTE RESOLUTION PROVISION, CUSTOMER AGREES TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN TEXAS. IN ANY DISPUTE, TEXAS LAW SHALL APPLY.
c) Construction and Joinder. THIS AGREEMENT MUST BE CONSTRUED AS IF IT WAS JOINTLY WRITTEN BY BOTH PARTIES. BOTH CUSTOMER AND LOXO AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS. NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. IN THE EVENT OF ANY DISPUTE CONCERNING THE VALIDITY OR ENFORCEABILITY OF THIS PROVISION, SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.
d) IF YOU ARE A CONSUMER AND DO NOT WANT TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MAY OPT OUT. IN ORDER TO OPT OUT OF THIS ARBITRATION PROVISION, YOU MUST NOTIFY US IN WRITING THAT YOU DO NOT WANT TO RESOLVE DISPUTES WITH US BY ARBITRATION, AND SUCH NOTICE SHOULD BE DELIVERED BY MAIL TO 2121 LOHMANS CROSSING RD STE-504 #105 AUSTIN TX, 78734, WITHIN THIRTY (30) DAYS OF THE EARLIER OF (A) THE DATE YOU FIRST USE THE SERVICE; AND (B) THE DATE YOU CLICK OR TAP ANY BUTTON OR BOX MARKED “ACCEPT,” “AGREE” OR “OK” (OR A SIMILAR TERM) IN CONNECTION WITH THIS AGREEMENT.
e) Injunctive Relief. Notwithstanding the above provisions, Loxo may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
13.4. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
13.5. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch; (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; or (iv) if given by electronic mail to either the Contact on the contract or the Admin(s) on the account.
13.6. Amendments; Waivers. Except as provided under “Modifications to this Agreement” and otherwise provided herein, no supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
13.7. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Services are on-line, subscription-based products, and that in order to provide improved customer experience Loxo may make changes to the Services, and Loxo will update the applicable Documentation accordingly. The support and service level availability terms described in the Security Policy, and the SLA may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease Loxo’s obligations as compared to those reflected in such terms as of the Effective Date). 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) this Agreement, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
13.8. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
13.9. Subcontractors. Loxo may use the services of subcontractors and permit them to exercise the rights granted to Loxo in order to provide the Services under this Agreement, provided that Loxo remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement,(ii) for the overall performance of the Services as required under this Agreement, and (iii) compliance with the terms of the DPA.
13.9. Subpoenas. Nothing in this Agreement prevents Loxo from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but Loxo will use commercially reasonable efforts to notify Customer where permitted to do so.
13.10. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
13.11. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement
13.11. Export Control and Economic Sanctions. In its use of the Services, Customer agrees to comply with all export control and economic sanctions and any relevant import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government export control embargo or economic sanctions, (ii) Customer will not (and will not permit any of its users to) access or use the Services in violation of any U.S. export control or economic sanction, prohibition or restriction, and (iii) Customer will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations or that is controlled under any Export Control Classification Number (other than EAR99) on the Commerce Control List of the Export Administration Regulations.
13.12. Government End-Users. Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. All Services were developed fully at private expense. All other use is prohibited
13.13. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.