BY ACCEPTING THIS AGREEMENT OR ACCESSING OR USING THE SERVICE, YOU ARE AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU ARE USING ANY SERVICE AS AN EMPLOYEE, AGENT, OR CONTRACTOR OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
Modifications to this Agreement : From time to time, Nummero may modify this Agreement. Unless otherwise specified by Nummero, changes become effective for Customer upon renewal of the then-current Subscription Term or entry into a new Service Order Form after the updated version of this Agreement goes into effect. Nummero will use reasonable efforts to notify Customer of the changes through communications via Customer’s Account, email, or other means.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to any Service through any online provisioning, registration, or order process or (b) the effective date of the first Service Order Form, as applicable, referencing this Agreement. 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.
1. Provision of Service. Nummero will make the Services and Software available to Customer pursuant to this Agreement, the Supplemental Terms (where applicable), the applicable SOF, and the Documentation, and provide such Services in accordance with this Agreement, including the Data Processing Addendum, the BAA (if applicable), the Privacy Notice, and laws and government regulations applicable to Nummero’ business, during each Subscription Term. During the Subscription Term, Nummero grants to Customer a limited, non-exclusive right to access and use the Services and Software only for its internal business purposes, for up to the number of Users included in the Service Plan or otherwise noted in the SOF, including the right to download, install and use the Mobile Apps in connection with the authorized use of the Services.
1. Provision of Service.
Nummero will make the Services and Software available to Customer pursuant to this Agreement, the Supplemental Terms (where applicable), the applicable SOF, and the Documentation, and provide such Services in accordance with this Agreement, including the Data Processing Addendum, the BAA (if applicable), the Privacy Notice, and laws and government regulations applicable to Nummero’ business, during each Subscription Term. During the Subscription Term, Nummero grants to Customer a limited, non-exclusive right to access and use the Services and Software only for its internal business purposes, for up to the number of Users included in the Service Plan or otherwise noted in the SOF, including the right to download, install and use the Mobile Apps in connection with the authorized use of the Services.
2. Responsibilities of Customer
a. Customer Account. Customer may need to register for an Account to place orders or access or receive the Services. Customer agrees to keep its Account information current, accurate and complete so that Nummero may send notices, statements, and other information to Customer via email or through its Account, which notifications will be subject to this Agreement and the Privacy Notice. Customer will be responsible for maintaining the confidentiality of User login information and credentials for accessing the Services and will notify Nummero promptly of any loss, misuse, or unauthorized disclosure of such login information and/or credentials of which Customer becomes aware. Nummero and its Affiliates will not be liable for any damage or loss that may result from Customer’s breach of the foregoing obligations.
b. Use Restrictions. Customer agrees not to use the Nummero (as defined below) to: (i) process data on behalf of any third party other than Customer’s Users and End Users; (ii) send unsolicited communications, junk mail, spam, or other forms of duplicative or unsolicited messages in violation of spamming or other laws; (iii) use the Service or Nummero in violation of applicable law (iv) store or transmit any content that infringes upon any third party’s intellectual property rights; (v) interfere with or disrupt the integrity or performance of the Services and their components; (vi) post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libellous, obscene, or discriminatory; (vii) post, transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; (viii) track cookies, ad exchanges, ad networks, data brokerages, or to send electronic communications (including e-mail) in violation of applicable law.
In addition, Customer will not: (ix) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Nummero available to any third party other than Users and End Users, and then only in furtherance of its permitted business purposes as expressly permitted by this Agreement; (x) modify, adapt, or hack the Nummero or otherwise gain or attempt to gain unauthorized access to the Nummero, its related systems or networks; (xi) falsely imply any sponsorship or association with Nummero; (xii) decompile, reverse engineer, disassemble, reproduce, or copy or otherwise access or discover the source code or underlying program of any portion of Nummero.
3. Customer Data
a. Use of Customer Data. As between the parties, Customer and its licensors retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of the operation of the Nummero. Subject to the terms of this Agreement, Customer hereby grants to Nummero and its Affiliates a non-exclusive, worldwide, royalty-free right to process the Customer Data solely to the extent necessary to provide the Services, Software, Mobile Apps, and perform all related obligations owed to Customer under this Agreement, or as may be required by law. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer warrants that Customer has and will have sufficient rights in the Customer Data to grant the rights to Nummero under this Agreement. Customer agrees not to upload any Customer Data containing electronic patient health records or information (“ePHI”) unless Customer has entered into a business associate agreement with Nummero, which will govern the parties’ respective obligations with respect to any ePHI uploaded by Customer to the Services, Software, or Mobile Apps (“BAA”). Upon mutual execution of a BAA, the BAA is incorporated by this reference into this Agreement and is subject to its terms. If Customer is permitted to submit ePHI data into the Service, Software or Mobile App, then Customer may submit such data to Nummero and/or the Service only by uploading it as Customer Data. Unless a BAA is in place, Nummero will have no liability under this Agreement for ePHI supplied by Customer or any User or End User, notwithstanding anything to the contrary in this Agreement or in HIPAA or any similar federal or state laws, rules or regulations.
b. Data Security. The parties will comply with the terms of the Data Processing Addendum(“DPA”) which is incorporated into this Agreement by this reference, with respect to the provision and processing of Personal Data as defined in the DPA. Nummero will use appropriate technical and organizational measures in the Services to protect the Customer Data from unauthorized access, processing, loss, or disclosure. Nummero measures are designed to provide a level of security appropriate to the risk of processing the Customer Data within the Services. Customer understands that Nummero and its Affiliates will process Customer Data in accordance with applicable data protection laws, this Agreement, including the DPA, and the Privacy Notice.
4. Intellectual Property
a. Ownership Rights. Customer Data is Customer’s Confidential Information under this Agreement. Customer and its licensors retain all right, title and interest in and to the Customer Data and all of Customer’s Confidential Information provided under this Agreement, and Nummero obtains no rights in the foregoing except for the express rights granted in this Agreement and the Privacy Notice. Nummero and its licensors retain all right, title, and interest in and to Nummero. Customer acknowledges that the Services are offered as online, hosted solutions, and that Customer has no right to obtain a copy of the underlying computer code for any Services, except (if applicable) for any downloadable Software, in object code format. Nummero may freely use and incorporate into Nummero’ products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any Users or End Users relating to Nummero products or services. Feedback and any other suggestions are provided by Customer exclusively “AS IS,” in Customer’s sole discretion, and will not be used by Nummero in any way that identifies or permits identification of Customer, its Affiliates, Users, or End Users.
b. Usage Data. Usage Data includes but is not limited to query logs, and any data (other than Customer Data) relating to the operation, support, and/or about Customer’s use of the Services, Software, Nummero’ websites, Nummero’ APIs, or the Nummero marketplace (“Usage Data”). Notwithstanding anything to the contrary in this Agreement, Nummero may collect and use Usage Data to develop, improve, support, and operate its products and services. Nummero may share Usage Data that includes Customer’s Confidential Information with third parties to the extent necessary to provide the Service and in accordance with Section 8 (Confidentiality) of this Agreement. Nummero may also utilize Customer Data for its internal business purposes only to the extent such Customer Data has been aggregated and anonymized such that Customer and Customer’s Users and End Users cannot be identified. Customer may request that Customer Data be excluded for such purposes by submitting such an email request to [email protected].
c. Updates. Nummero may update the Services and Software from time to time and Customer may receive notifications of Updates. Any Updates to the Services and Software are subject to this Agreement. Customer agrees that its purchase of the Services and Software is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by Nummero with respect to future functionality or features.
d. Other Services. Nummero or other third parties may make available (for example, through the Nummero Marketplace currently located at https://nummero.com/apps/) or other forums, third-party products or services(“Third-Party Services”). These Third Party Services may integrate with the Services and are not licensed by Nummero pursuant to this Agreement, but are governed by the third party provider’s terms and conditions and privacy policies that accompany them, which Customer must separately accept. Nummero does not warrant or support Third Party Services, unless expressly provided otherwise in an SOF. Nummero is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such third party. The Service may contain features designed to interoperate with Third Party Services. Nummero cannot guarantee the continued availability of such Third Party Service features, and may cease supporting them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the Third Party Service provider ceases to make the Third Party Service available for interoperation with the corresponding Service features in a manner acceptable to Nummero.
5. Fees and Payment
a. Fees and Payment. Nummero or other third parties may make available (for example, through the Nummero Marketplace currently located at https://nummero.com/apps/) or other forums, third-party products or services(“Third-Party Services”). These Third Party Services may integrate with the Services and are not licensed by Nummero pursuant to this Agreement, but are governed by the third party provider’s terms and conditions and privacy policies that accompany them, which Customer must separately accept. Nummero does not warrant or support Third Party Services, unless expressly provided otherwise in an SOF. Nummero is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such third party. The Service may contain features designed to interoperate with Third Party Services. Nummero cannot guarantee the continued availability of such Third Party Service features, and may cease supporting them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the Third Party Service provider ceases to make the Third Party Service available for interoperation with the corresponding Service features in a manner acceptable to Nummero.
b. Late Payments If undisputed Fees are more than thirty (30) days overdue, then, following written notification from Nummero, Nummero may suspend Customer’s access to the Nummero, including, without limitation, Customer’s Account, until such unpaid Fees are paid in full.
c. Payment Disputes. Nummero will not exercise its rights under Section 5(b) (Late Payments), 6(d) (Termination for Cause) or Section 6(c)(i) (Suspension of Service) with respect to non-payment by Customer if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If the parties are unable to resolve such a dispute within thirty (30) days, each party will have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any terms that would limit remedies on account of a dispute. For clarity, any undisputed amounts must be paid in full.
d. Applicable Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Customer agrees to pay applicable direct or indirect Taxes associated with its purchases hereunder, which, to the extent Nummero is legally required to collect the same, will be itemized on the Nummero invoice. If Customer has an obligation to withhold any amounts under any law or tax regime (other than U.S. income tax law), Customer will gross up the payments so that the Nummero receives the amount actually quoted and invoiced. If Nummero has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount will be invoiced and paid by the Customer, unless, prior to the invoice date, the Customer provides Nummero with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. Term, Termination and Suspension
a. Term. This Agreement is effective as of the Effective Date (or, for online Customers, the date of sign up on the Website) and will continue through the then-current Subscription Term. Service Plans commence on the start date specified in the relevant SOF (or, for online Customers, the date of sign up on the Website) and continue for the Subscription Term specified therein.
b. Renewal. Unless a party gives written notice of non-renewal at least sixty (60) days prior to the expiration of the relevant Subscription Term, Service Plans will automatically renew for a period equal to the previous Subscription Term. Nummero reserves the right to increase the Fees at the beginning of each Subscription Term. Any Fees for a renewed Subscription Term are due upon the date of renewal.
c. Suspension. Nummero may suspend Customer’s access to the Services, Software, Mobile Apps and/or Customer’s Account, on the following grounds: (i) late payment/non-payment of undisputed Fees, per the process noted in Section 5(b) above; (ii) non-renewal of the Services by Customer; (iii) Customer’s or its Users’ breach of Section 2 (Use Restrictions); or (iv) in the event suspension is deemed necessary by Nummero to prevent or address the introduction of Malicious Software (as defined in Section 9.b below), a security incident, or other harm to Customer, Nummero, or Nummero' other customers. Nummero will notify Customer of any such suspension. Nummero will use diligent efforts to attempt to limit, where commercially feasible, the suspension to affected Users or Nummero, and will immediately restore the availability of the same as soon as the issues leading to the suspension are resolved. Such suspension will in no way affect Customer’s other obligations under this Agreement.
d. Termination for Cause. Either party may terminate this Agreement by written notice to the other party in the event that (i) such other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice, or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
e. Free Trial Customers. Upon the expiration of Customer’s free trial, Nummero may immediately suspend Customer’s access to the Services. Customer must export Customer Data before the end of the free trial or Customer Data will be permanently deleted. Notwithstanding anything to the contrary in this Agreement Nummero will have no obligation to maintain, store or otherwise retain Customer Data beyond the end of the free trial period.
7. Data Export. and Retention
Upon termination or expiration of this Agreement or any SOF for any reason, Customer’s access to the Services, Software, Mobile Apps, APIs and other Nummero will terminate. Nummero strongly recommends that Customer export all Customer Data before Customer closes Customer’s Account. Nummero will make Customer Data available for export for fourteen (14) days from the effective date of termination of the Agreement (“Data Export Period”). Where Customer Data is retained by Nummero and can be exported, and provided that Customer is current on its payment obligations as described in Section 5, Customer may contact Nummero within the Data Export Period to have Nummero export Customer’s Customer Data. Beyond such Data Export Period, Nummero reserves the right to retain Customer data for up to three (3) months before deleting all Customer Data in the normal course of operation except as necessary to comply with Nummero legal obligations, maintain accurate financial and other records, resolve disputes, and enforce its agreements. Customer Data cannot be recovered once it is deleted. Customer may contact [email protected] within the Data Export Period to export Customer Data.
8. Confidentiality
Each party will protect the other’s Confidential Information from unauthorized use, access, or disclosure in the same manner as it protects its own Confidential Information of similar nature or importance, and in any event, using no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, the receiving party may use the disclosing party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement, and will disclose such Confidential Information solely to those of its respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound by obligations to maintain the confidentiality of, and not misuse, such Confidential Information. The provisions of this section will supersede any non-disclosure agreement by and between the parties entered into prior to this Agreement that would purport to address the confidentiality of any information shared by the parties, including Customer Data, and such agreement will have no further force or effect with respect to the foregoing. If the receiving party is required by law or court order to disclose Confidential Information of the disclosing party, then the receiving party will, to the extent legally permitted, provide the disclosing party with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information. The receiving party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
9. Warranties/Disclaimer of Warranties
a. Service Warranty. Nummero warrants that the Services, Software or Mobile Apps will perform in all material respects in accordance with the Documentation. Provided that Customer provides written notice of a claim within thirty (30) days after first becoming aware of a breach of the foregoing warranty, Nummero will use diligent efforts to correct the Services, Software, or Mobile Apps so the foregoing warranty is met, and if Nummero is unable to make such corrections in a timely manner, either party may terminate the applicable SOF, and Customer, as its sole and exclusive remedy, will be entitled to receive a refund of any unused Fees that Customer has pre-paid for the applicable Services, Software or Mobile Apps purchased thereunder. This warranty will not apply if the error or non-conformance was caused by Customer’s breach of this Agreement or Customer’s or its Users’ misuse of the Services, Software, and Mobile Apps, modifications to the Services, Software, and Mobile Apps by anyone other than Nummero or its representatives, or third-party hardware, software, or services used in connection with the Services, Software, and Mobile Apps.
b. Malware Warranty. Nummero warrants that the Services hosted by Nummero will be monitored using commercially available means to attempt to detect and prevent the introduction of any computer instructions, circuitry or other technology means whose purpose or effect is to disrupt, damage or interfere with the authorized use of, or allow access to, the computer and communications facilities or equipment of Nummero or Customer, including, without limitation, any code containing viruses, Trojan horses, worms, backdoors, trap doors, time-out devices or similar destructive or harmful code or code that self-replicates (collectively, “Malicious Software”).
c. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
10. Limitation of Liability
a. SUBJECT TO APPLICABLE LAW AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DOWNTIME COSTS, LOSS OF DATA, RESTORATION COSTS, LOST PROFITS, OR COST OF COVER) REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER LEGAL THEORY.
b. EXCEPT FOR AN ACTION BROUGHT FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, DATA CLAIMS OR IP CLAIMS, EACH PARTY’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES RECEIVED BY OR PAYABLE TO NUMMERO IN THE TWELVE MONTHS PRECEDING THE CLAIM (“THE GENERAL LIABILITY CAP”).
c. IN THE CASE OF IP CLAIMS AND DATA CLAIMS, NUMMERO AND ITS AFFILIATES’ TOTAL LIABILITY TO THE CUSTOMER AND ITS AFFILIATES FOR ALL SUCH CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) WILL NOT EXCEED TWO TIMES (2X) THE GENERAL LIABILITY CAP (“SUPERCAP”).
d. IN NO EVENT WILL EITHER PARTY (OR ITS RESPECTIVE AFFILIATES) BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE SUPERCAP. SIMILARLY, THE FOREGOING CAPS WILL NOT BE CUMULATIVE; IF A PARTY (AND/OR ITS AFFILIATES) HAS ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE WILL NOT EXCEED THE APPLICABLE CAP.
e. THE PARTIES AGREE THAT THIS SECTION 10 WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE APPLICABLE MONETARY CAPS SET FORTH IN THIS SECTION WILL APPLY ACROSS THIS AGREEMENT AND ANY AND ALL SEPARATE AGREEMENT(S) ON AN AGGREGATED BASIS, WITHOUT REGARD TO WHETHER ANY INDIVIDUAL CUSTOMER AFFILIATES HAVE EXECUTED A SEPARATE SOF.
11. Indemnification
a. Indemnification by Nummero. Nummero will defend Customer and its Affiliates, from any third party claim alleging that Customer’s use of the Nummero as contemplated hereunder infringes such third party’s patent, copyright and/or trademark intellectual property rights (an “IP Claim”), and will indemnify and hold harmless Customer and its Affiliates from and against any damages and costs awarded against Customer or its Affiliates, or agreed in settlement by Nummero (including reasonable attorneys’ fees) resulting from such IP Claim. Nummero will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by (i) unauthorized use of the Nummero by Customer, its Affiliates or Users; (ii) modification of the Nummero by anyone other than Nummero or its representatives; or (iii) the combination, operation or use of the Nummero with other data, hardware or software not provided by Nummero. If Customer’s use of the Nummero results (or in Nummero' opinion is likely to result) in an IP Claim, Nummero may at its own option and expense (a) procure for Customer the right to continue using the foregoing items as set forth hereunder; (b) replace or modify them to make them non-infringing; or (c) if options (a) or (b) are not commercially reasonably as determined by Nummero, then either Customer or Nummero may terminate Customer’s subscription to the Service, whereupon Nummero will refund Customer, on a pro-rated basis, any Fees Customer has previously paid Nummero for the corresponding unused portion. The sections above state Nummero’ entire liability and Customer’s exclusive remedy with respect to an IP Claim.
b. Indemnification by Customer. Customer will defend Nummero and its Affiliates from any third party claim (“Claim”), and will indemnify and hold harmless Nummero and its Affiliates from and against any damages and costs awarded against Nummero and its Affiliates, or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim, to the extent caused by: (i) Customer’s or its Affiliate’s unauthorized supply, disclosure, or processing of Customer Data, including Personal Data therein, or (ii) Customer’s or its Affiliate’s violation of laws applicable to Customer’s or its Affiliate’s business.
c. Indemnification Procedures. In the event of a potential indemnity obligation under this Section 11, the indemnified party will: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under this section will not relieve the indemnifying party of its obligations under this section, however, the indemnifying party will not be liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this Section. The indemnifying party may not settle any claim that would bind the indemnified party to any obligation (other than payment covered by the indemnifying party or ceasing to use infringing materials) or require any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed. Any indemnification obligation under this Section 11 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.
12. Miscellaneous.
a. Use of Third Parties for Payment Processing. Nummero may use a third-party service provider to manage payment processing provided that such service provider is not permitted to store, retain, or use Customer’s payment account information except to process Customer’s payment information for Nummero. Customer must notify Nummero of any change in Customer’s payment account information, either by updating Customer’s Account or by e-mailing Nummero at [email protected].
b. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all SOFs), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment in violation of this section will be null and void.
c. Entire Agreement. This Agreement, together with any SOF, the Privacy Notice, and Supplemental Terms, constitutes the entire agreement and supersedes any and all prior agreements or communications between Customer and Nummero regarding the subject matter hereof. In the event of a conflict between the Privacy Notice, the Supplemental Terms, or any SOF and this Agreement, the order of precedence will be, first, the Privacy Notice, second, the SOF, third, the Supplemental Terms, and fourth, this Agreement. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision, and the remaining provisions of this Agreement will remain in effect.
d. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Nummero at [email protected].
e. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited to but not limited to, acts of God, acts of government, acts of terror or civil unrest, Internet failures, or acts undertaken by third parties not under the performing party’s control, including, without limitation, denial of service attacks (“Force Majeure Event”). In the event that a Force Majeure Event continues for a period of thirty (30) consecutive days, the other party may terminate this Agreement and all SOFs on written notice to the non-performing party. If Nummero is the party experiencing the Force Majeure Event and as a result thereof is unable to provide the Services, Software or Mobile Apps for the period noted herein, and Customer terminates this Agreement and all SOFs, then Nummero will provide Customer a refund of fees paid by Customer pro-rated as of the date the Force Majeure Event commenced.
f. Governing Law. This Agreement is governed by the laws of the State of California without regard to conflict of laws principles. The parties hereby submit to the exclusive personal jurisdiction of the federal and state courts of the State of California, San Francisco County for any claims or dispute relating to this Agreement.
g. Dispute Resolution. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, will be determined by arbitration in San Francisco, California. The arbitration will be administered by JAMS pursuant to its arbitration rules and procedures. Judgment on the Award may be entered in any court having jurisdiction. This section will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
h. Federal Government End Use Restrictions. If Customer is a U.S. federal government department or agency or contracting on behalf of such department or agency, this Service is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Service is licensed to Customer with only those rights as provided under the terms and conditions of this Agreement.
i. Federal Government End Use Restrictions. If Customer is a U.S. federal government department or agency or contracting on behalf of such department or agency, this Service is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Service is licensed to Customer with only those rights as provided under the terms and conditions of this Agreement.
13. Definitions.
“Account” means any accounts or instances created by or on behalf of Customer for access to and use of any of the Services.
“Confidential Information” means all information disclosed by one party to the other party, orally, in writing or electronically, that is designated as “confidential” (or with a similar legend), or which a reasonable person should understand to be confidential given the nature of the information and circumstances of disclosure. Confidential Information does not include any information that: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Customer Data” means, all electronic data, text, messages or other materials, including, without limitation, Personal Data of Users and End Users, submitted to the Services by Customer or its Users through Customer’s Account in connection with Customer’ use of the Services.
“Data Claims” means any claims arising from either (a) a party’s breach of Section 3 (Customer Data), Section 8 (Confidentiality), the DPA, the BAA (if applicable), or the Privacy Notice, where such breach results in the unauthorized disclosure of Customer Data, or (b) breach of Section 2 (b) (Use Restrictions).