Effective Date: August 25th, 2023
These TestBox Terms of Service (the “Terms”) apply when you (“Customer”) use the Services as described herein. Throughout these Terms, TestBox, Inc., a Delaware corporation, may be referred to as “Provider”, “we”, “us”, or “our”. “You” or “Customer” includes the legal entity or an individual user for the Services or Provider IP. Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.
YOU ACCEPT THE TERMS AND CONDITIONS OF THESE TERMS WHEN YOU EXECUTE AN ORDER FORM THAT REFERENCES THESE TERMS OR RELATES TO THE SERVICES, INCLUDING ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE SERVICES.
You may not access the Services or request information from our Services if you are a direct competitor of Provider, except with our prior written consent. In addition, you may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other competitive purposes.
Access and Use
- Service Access and Use Grant. During a Subscription Term, subject to the payment of Fees, Provider hereby grants to Customer a non-exclusive, non-transferable, non-assignable right to (i) access and use the Services by the Authorized Users solely for Customer's internal business use, which includes providing demonstrations to Customer’s potential end users, and (ii) use and reproduce the Documentation internally solely to the extent necessary for Customer’s use of the Services.
- Use Restrictions. Customer shall not, and shall ensure that its Authorized Users do not: (i) use the Service in any manner or for any purpose other than as expressly permitted in these Terms, Order Form or Documentation; (ii) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (iii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iv) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (v) remove any proprietary notices from the Services or Documentation; (vi) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vii) use the Services or Documentation for purposes of competitive analysis or for the development of a competing software product or service; (viii) interfere with, degrade or disrupt the Service; or (ix) access or use the Service in a way intended to avoid incurring fees or exceeding the usage limits or purchased number of Authorized Users in an Order Form.
- Reservation of Rights. Provider reserves all rights not expressly granted to Customer in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Services or Provider IP.
- Aggregated Statistics. Provider may monitor Customer's use of the Services and collect and compile Aggregated Statistics. Customer acknowledges that Provider may include Customer Data (excluding personal data) in its Aggregated Statistics. Customer grants to Provider all rights and licenses in and to the Aggregated Statistics that include Customer Data (where such Aggregated Statistics do not identify Customer or Customer's Confidential Information) for Provider’s business purposes and as permitted under applicable law.
- Suspension. Notwithstanding anything to the contrary in these Terms, if necessary, Provider may implement a Service Suspension. Provider shall use commercially reasonable efforts to provide written notice of any material Service Suspension and updates about Service resumption. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
- Updates. From time to time Provider may provide Updates to the Services. To take advantage of these Updates you may need to enter into a new Order Form and pay additional Fees. All Updates will be subject to the terms and conditions of these Terms.
- Account Security. You may need to register for an Account in order to receive access to the Services. You agree to keep your Account information current, accurate and complete so that Provider can send notices, statements, and relevant information to you via email or through your Account. As an Authorized User, it is your responsibility to maintain the confidentiality of Your login information and credentials for the Account that enable you to access the Services. Notify Provider immediately if You believe Your login credentials have been compromised.
- General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these Terms if taken by Customer will be deemed a breach of these Terms by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of these Terms's provisions as applicable to such Authorized User's use of the Services, and shall cause Authorized Users to comply with such provisions.
- Customer Service Access Grant. Customer hereby grants to Provider a non-exclusive, non-transferable, non-assignable right to (i) access and use the Customer Service solely for permit Provider to provide the Services, including, without limitation, the ability to create accounts within Customer Service and have other such access reasonably required to provide the Services, and (ii) use and reproduce the Documentation internally solely to the extent necessary for Provider to provide the Services.
- Customer Data. Customer will only provide Customer Data that is necessary to use the Services or as required under these Terms. Customer is solely responsible for Customer Data and for all activity that occurs under Customer’s account. Without limiting the foregoing, Customer agrees not to, and will ensure Authorized Users do not, transmit, submit or upload any Customer Data or act in any way that: (i) restricts of inhibits use of the Services; (ii) violates the legal rights of others, including defaming, abuse, stalking or threatening users; (iii) infringes (or results in the infringement of) the intellectual property rights, moral rights, publicity, privacy, or other rights of any third party; (iv) is (or you reasonably believe or should reasonably believe to be) stolen, illegal, counterfeit, fraudulent, pirated, violent or unauthorized; (v) does not comply with all applicable laws, rules and regulations; or (vi) posts, stores, transmits, offers, or solicits anything that contains the following, or that you know contains links to the following or to locations that in turn contain links to the following: (1) material that we determine to be offensive (including material promoting or glorifying hate, violence, bigotry, or any entity (past or present) principally dedicated to such causes or items associated with such an entity), (2) material that is racially or ethnically insensitive, material that is defamatory, harassing or threatening, (3) pornography or obscene material, (4) any virus, worm, trojan horse, or other harmful or disruptive component or (5) anything that encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or regulation or is otherwise inappropriate or offensive. Provider may elect, at its sole discretion, to remove any Customer Data that Provider reasonably believes violates the foregoing. Customer agrees to not provide personal health information of any type or nature as part of the Customer Data, and if such personal health information is necessary, will seek prior written approval from Provider whereby as one of the requirements, you will agree to enter into a business associate agreement that is HIPPA compliant. For any questions about personal health information as set forth in the preceding sentence, you may contact firstname.lastname@example.org.
Provider will implement and maintain appropriate based on the nature of the Service administrative, physical, and technical safeguards designed to prevent any unauthorized collection, use or disclosure of, or access to, the Services and/or Customer Data. The Parties agree that the provisions of the TestBox Data Processing Addendum (“DPA”) shall apply to the Provider’s processing of any Customer Data identified as personal data (as defined in the DPA) in connection with the rendering of Services.
Fees and Payment
- Fees. Customer shall pay Provider the fees (“Fees”) specified in the applicable Order Form without offset or deduction. Unless otherwise set forth in an Order Form, Fees are subject to change at the conclusion of each year of a Subscription Period.
- Payment. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the applicable Order Form. If Customer fails to make any payment when due, without limiting Provider's other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, Provider may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full and has the right to see all remedies available under the law or in equity.
- Taxes. All Fees and other amounts payable by Customer under these Terms are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider's income.
- Non-Disclosure. From time to time during the Term, one Party (“Disclosing Party”) may disclose or make available Confidential Information to the other Party (“Receiving Party”). The Receiving Party will (i) 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), (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, and (iii) except as otherwise authorized by the Disclosing Party in writing, disclose Confidential Information of the Disclosing Party only to those of its employees, officers, advisors, contractors, and agents and its Affiliates’ employees, officers, advisors, contractors, and agents who need that access for purposes consistent with these Terms and who are subject to confidentiality obligations consistent with these Terms. Receiving Party is fully responsible for the compliance of its employees, officers, advisors, contractors, and agents and its Affiliates’ employees, officers, advisors, contractors, and agents.
- Proceedings. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order.
- Equitable Relief. In recognition of the unique and proprietary nature of the Confidential Information disclosed by each Party, it is agreed that each Party’s remedy at law for breach by the other party of its obligations under this Section may be inadequate and the Disclosing Party will, in the event of such breach or threatened breach, be entitled to seek equitable relief, including without limitation, injunctive relief and specific performance, in addition to any other remedies provided hereunder or available at law.
- Effect of Termination. On the expiration or termination of the Terms, the Receiving Party shall promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Terms for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Intellectual Property Ownership; Feedback
- Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP. The Services may provide or integrate third party products, and the right, title and interest in such third-party products, including all intellectual property rights, shall vest in the applicable third-party provider.
- Customer Data and Customer Service. TestBox acknowledges that, as between TestBox and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data and Customer Service. Customer hereby grants to TestBox a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for TestBox to provide the Services to Customer and as necessary in accordance with Section 1(d).
- Feedback. Customer grants to Provider a worldwide, perpetual, irrevocable, transferable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer its Authorized Users relating to the operation of the Services, provided that Provider shall not identify Customer as the source of such feedback.
Limited Warranty and Warranty Disclaimer
- Provider warrants that the Services (i) will conform in all material respects to the specifications set forth in the Documentation and (ii) will be monitored using commercially available means to attempt to prevent the introduction of Malware into the Services, provided, however, Provider makes no warranty and has no obligation or liability Customer Service to the extent not directly caused by the Services.
- EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION, THE PROVIDER IP IS PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
- Provider Indemnification. Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable external attorneys’ fees) (“Losses”) finally awarded to Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with these Terms, infringes or misappropriates such third-party's. intellectual property rights, patents, copyrights, or trade secrets. This Section 8(a) will not apply to the extent that the alleged infringement arises from: (i) unauthorized use of Provider IP or Services by Customer or its Users; (ii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (iii) modifications to the Services not made by Provider; or (iv) Customer Data. If such a claim is made or appears possible, Customer agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, (B) obtain the right for Customer to continue use, or (C) if Provider determines that neither alternative is reasonably available, Provider may terminate these Terms, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer and Provider will provide a refund of any prepaid and unused fees from the date of such termination. THIS SECTION SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE PROVIDER IP INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
- Customer Indemnification. Customer shall indemnify, hold harmless, and defend Provider from and against any Losses resulting from any Third-Party Claim arising out of or related to (i) Customer Data, or any use of the Customer Data in accordance with these Terms, that infringes or misappropriates such third-party's intellectual property rights; (ii) Customer’s gross negligence or willful misconduct; or (ii) use of the Services by Customer or an Authorized User in a manner not authorized by these Terms.
- Procedure. If any claim is commenced against a person or entity entitled to indemnification under this Section, the indemnified party shall provide prompt notice thereof to the indemnifying party, provided that any delay in providing such notification will not relieve the indemnifying party of its obligations except to the extent prejudiced by such delay. The indemnifying party may, if it so elects, in a notice promptly delivered to the indemnified party, immediately take control of and assume the defense and investigation of such claim and to employ and engage attorneys to handle and defend the same, at indemnifying party’s sole cost and expense. The indemnified party will cooperate, at the indemnifying party’s expense, in all respects with the investigation and defense of such claim; provided, however, that the indemnified party may, at its own cost and expense, participate, through its attorneys or otherwise, in such investigation and defense. If any settlement requires an affirmative obligation of, results in any ongoing liability to, or materially prejudices the rights of, the indemnified party hereunder, then such settlement will require the indemnified party’s prior written consent (not to be unreasonably withheld or delayed).
- Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Term and Termination
- Term. The initial term of these Terms begins upon acceptance of these Terms (as set forth above) and, unless terminated earlier pursuant to these Terms’s express provisions, will continue in effect until expiration of the last Order Form (“Term”). Either Party may give the other Party notice of termination either via email or in writing (i) at least thirty (30) days prior to the expiration of the Subscription Term on the last outstanding Order Form, or (ii) if no Order Form is outstanding, given at any time.
- Termination. In addition to any other express termination right set forth in these Terms:
- either Party may terminate these Terms, effective on written notice to the other Party, if the other Party materially breaches these Terms, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
- either Party may terminate these Terms, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- Effect of Expiration or Termination. Upon any termination or expiration of these Terms: (i) all licenses and rights granted hereunder by Provider, including access to the Service, and granted by Customer to Customer Service will terminate; (ii) Customer will cease and cause its Authorized Users to cease using the Provider IP; (iii) each Party will cease using and promptly return to the other Party, or destroy (and certify such destruction in writing), at the other Party’s option, all Confidential Information in its possession and any other information or materials provided to it pursuant to these Terms; and (iv) if requested by Customer, Provider will return to Customer (or any third party designated by Customer) all Customer Data (provided that Provider shall continue to be entitled to use Customer Data included in the Aggregated Statistics for the purpose set forth herein) at Customer’s expense.
- Survival. The Sections that are intended by their nature to survive termination or expiration shall so survive any termination or expiration of these Terms.
- Entire Agreement. These Terms and other documents referred to in these Terms (including, without limitation, Order Forms and the DPA) and any documents referenced herein and therein, are hereby incorporated into and made a part of these Terms and contain the complete understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein. Any waiver, modification or amendment of any provision of these Terms will be effective only if in writing and signed by duly authorized representatives of the Parties.
- Notices. All notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) the first business day after sending by email (provided email shall not be sufficient for notices for legal claims and indemnifiable claims). Notices to each Party shall be addressed to addresses set forth on the Order Form or your Account.
- Force Majeure. In no event shall either Party be liable to the other, or be deemed to have breached these Terms, for any failure or delay in performing its obligations under these Terms (except for a failure to pay for Services already provided or being provided), if and to the extent such failure or delay is due to an event caused by any circumstances beyond either Party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, health outbreaks or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
- Waiver. The failure by either Party to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision.
- Severability. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these Terms so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Governing Law; Submission to Jurisdiction. These Terms is governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado. Any legal suit, action, or proceeding arising out of or related to these Terms or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Colorado, and each Party irrevocably submits to the exclusive jurisdiction of the state and federal courts of the State of Colorado, County of Boulder in any such suit, action, or proceeding.
- Assignment. Neither Party may assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. These Terms is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns. Notwithstanding the foregoing, either Party may assign these Terms, without the other Party’s prior consent, to its parent company, or to any purchaser of all or substantially of such Party’s assets, or to any successor by way of merger, consolidation or similar transaction.
- Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
- Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Customer of its obligations under Sections 1and 5 would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Provider will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. Provider may identify Customer in its promotional materials, provided you can request Provider cease the inclusion by sending an email to email@example.com.
Terms not otherwise defined in the body of the Terms include:
- “Account” means any accounts or instances created by or on behalf of Customer or an Authorized User for access to and use of any of the Services.
- “Aggregated Statistics” means data and information collected related to use of the Services by (i) Customer for the operation, support, use and performance of the Service; and (ii) all customers and users in an aggregated and anonymized format, including to compile statistical and performance information related to the provision and operation of the Services.
- “Authorized User” means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to these Terms and (ii) for whom access to the Services has been purchased hereunder.
- “Confidential Information” means information of a Party about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, that is marked, designated or otherwise identified as “confidential”, or if not so marked, would be known to a reasonable person to be confidential at the time of disclosure, provided, however, this does not include information that, at the time of disclosure is: (i) in the public domain; (ii) known to the receiving Party at the time of disclosure; (iii) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (iv) independently developed by the receiving Party.
- “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
- “Customer Service” means the Customer’s software, software as a service, technology, accounts, applications, APIs and documentation that is Customer is providing Provider access to for the provision of the Services hereunder.
- “Documentation” means user manuals, handbooks, and guides relating to the Services provided by Provider.
- “Malware” means any computer instructions, circuitry, or other technology means whose purpose or effect is to disrupt, damage, or interfere with the authorized use of Services by Customer, including but not limited to code containing viruses, Trojan horses, worms, backdoors, trap doors, time-out devices, or similar destructive or harmful code that self-replicates.
- “Order Form” means (i) any statement in Customer’s Account details specifying additional terms, conditions or fees from time to time, if any, (ii) any service order referencing these Terms and either (a) accepted by User via Account or online terms or (b) executed by Customer and Provider, which details the Services subscribed to, the number of Authorized Users for the Services, the Subscription Term, applicable fees, and any relevant additional terms and conditions.
- “Provider IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing.
- “Services” means the Provider software platform and related services performed by Provider for Customer as set forth in the Order Form, excluding any applications or APIs that are part of Customer Service.
- “Service Suspension” shall mean a temporary suspension of Customer’s or Authorized User’s account due to (i) a threat to or attack on any of the Provider IP; (ii) use that disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (iii) fraudulent or illegal activities or otherwise violates applicable law; (iv) failure to pay the Fees as set forth herein; or (v) Provider's provision of the Services to Customer or any Authorized User is prohibited by applicable law.
- “Subscription Term” means the specific term set forth on an Order Form for the Services included therein.