FOUNTAIN MASTER SUBSCRIPTION AGREEMENT
Effective Date: October 1, 2017
Last Updated Date: August 20, 2018
This Fountain Master Subscription Agreement (“Master Agreement”) governs transactions by which Customer (as defined below) purchases access to the Services (as defined below) and related Professional Services (as defined below) from OnboardIQ, Inc. (“Fountain”).
BY ACCEPTING THIS MASTER AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER FORM, SOW, OR OTHER DOCUMENT THAT REFERENCES THIS MASTER AGREEMENT, BY USING (OR MAKING ANY PAYMENT FOR) THE SERVICES, OR BY OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS MASTER AGREEMENT, YOU: (1) AGREE TO THIS MASTER AGREEMENT ON BEHALF OF THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (“CUSTOMER”); (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THIS MASTER AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS MASTER AGREEMENT, YOU MUST NOT ACCEPT THIS MASTER AGREEMENT AND MAY NOT USE THE SERVICES OR RECEIVE PROFESSIONAL SERVICES.
Specific details regarding what particular Services are purchased or licensed will be specified in an Order Form (as defined below), and specific details regarding what Professional Services are purchased will be specified in an SOW. This Master Agreement together with any Order Form(s) and SOW(s) collectively constitutes this “Agreement” between Fountain and Customer. The parties agree as follows:
The following capitalized terms shall have the meanings set forth below. Any capitalized terms used but not defined in this Master Agreement will have the meaning provided in the applicable Order Form.
- “Authorized Users” means employees and contractors of Customer for whom Customer has paid all applicable fees to permit them to access and use the Services.
- “Customer Data” means non-public data uploaded by Customer to the Services.
- “Documentation” means Fountain-provided user documentation, in all forms, relating to the Services (e.g., user manuals, on-line help files).
- “Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and Fountain, including any addenda and supplements thereto.
- “Order Term” means the Order Form term length specified in the applicable Order Form.
- “Professional Services” means any implementation, configuration, training, or consulting services provided by Fountain to Customer under an SOW.
- “Scope Limitations” means any limitations on Customer’s use of the Services specified in an Order Form.
- “Services” means Fountain’s web-based software platform product(s) identified in an Order Form, any related services provided by Fountain that do not constitute Professional Services, and that assists users in managing the job application and hiring process, including Fountain’s website located at www.fountain.com (“Site”) and Fountain’s any related mobile applications provided by Fountain(“Mobile Apps”), as each may be updated, enhanced, relocated, or otherwise modified from time to time, including through networks, embeddable widgets, downloadable software, and tablet computer applications, and all intellectual property contained therein.
- “SOW” means a statement of work specifying any Professional Services to be provided hereunder that is entered into between Customer and Fountain, including any addenda and supplements thereto.
- “SOW Term” means the SOW term length specified in the applicable SOW.
- “Work Product” means any deliverables or works of authorship that are created by Fountain specifically and exclusively for Customer in the performance of Professional Services under this Agreement and provided to Customer under a SOW. Work Product shall not be deemed to include any derivatives or outputs of the Services.
Provision of the Services and Support
- Order Forms. Each Order Form is subject to and governed by this Master Agreement. If there is a conflict between this Master Agreement and an Order Form, this Master Agreement will control unless the Order Form states that a specific provision of this Master Agreement will be superseded by a specific provision of the Order Form.
- Access to the Services. Subject to Customer’s payment of all fees and compliance with the terms and conditions of this Agreement, Fountain grants to Customer a limited, worldwide, non-exclusive, non-transferable, non-sublicenseable right during the Order Term to use the Services specified in the applicable Order Form by and through its Authorized Users solely in connection with Customer’s internal business operations and in accordance with any Scope Limitations.
- Documentation. Subject to Customer’s payment of all fees and compliance with the terms and conditions of this Agreement, Fountain grants to Customer a limited, worldwide, non-exclusive, non-transferable license, without right of sublicense, during the Order Term to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with Customer’s authorized use of the Services.
- Support. Subject to Customer’s payment of all fees and compliance with the terms and conditions of this Agreement, Fountain will use commercially reasonable efforts during each Order Term to provide Customer with the technical support services described in Exhibit A.
Restrictions and Responsibilities.
- Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: rent, lease, or otherwise permit third parties to use the Services or Documentation; use the Services or Documentation to provide services to third parties (e.g., as a service bureau); circumvent or disable any security or other technological features or measures of the Services; reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services; modify, translate, or create derivative works based on the Services or Documentation; or remove any proprietary notices or labels from the Services or Documentation.
- Authorized Users; Accounts. Customer is responsible and liable for all actions and inactions by its Authorized Users or by any other person or entity to whom Customer or an Authorized User may, directly or indirectly, provide access to or permit to use the Services or Documentation; in each case, as if such action or inaction were an action or inaction of Customer. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Fountain account. Fountain reserves the right to refuse registration of, or cancel passwords it deems inappropriate. Customer represents and warrants that all registration information Customer provides is truthful, accurate, and complete, and that Customer will maintain the accuracy of such information. Customer is responsible for maintaining control over Customer’s account, including the confidentiality of Customer’s username and password, and is responsible for all activities that occur on or through Customer’s Account and all Authorized Users’ accounts, whether authorized by Customer or not.
- Export. Customer may not remove or export from the United States or allow the export or re-export of the Services, Documentation, 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 252.2277014(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.
- Equipment and Ancillary Services. 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. Fountain is not responsible for any issues or delays in Services or support caused by Equipment failures.
- SOWs. Each SOW is subject to and governed by this Master Agreement. If there is a conflict between this Master Agreement and a SOW, this Master Agreement will control unless the SOW states that a specific provision of this Master Agreement will be superseded by a specific provision of the SOW.
- Performance; Delays. Fountain agrees to provide the Professional Services described in each SOW. If any delays in such Professional Services occur solely as a result of any incorrect information, incorrect assumption or failure of Customer to perform or fulfill its obligations in connection with any SOW, the performance schedule under the applicable SOW may be extended. Fountain shall have no liability or responsibility for such costs or expenses resulting from such delays. In the event that performance of any milestone set forth in any SOW is not met due to a delay solely caused by Fountain, and provided that such cause is not an event of force majeure as described in Section 14, Fountain agrees, at no charge to Customer, to commit such additional resources and personnel as shall be necessary to ensure that such delay does not result in the slippage of later milestones or completion of such Professional Services.
- Changes to SOW. Fountain or Customer may, at any time, reasonably request a change to any SOW. Any requested change that the parties mutually accept (a “Change”) will be set forth in a written change order prepared by Fountain and agreed to and signed by both parties. In the event the parties are unable to mutually agree upon a proposed Change or a proposed change order, and such proposed Change relates to a material component of the project that is the subject of the relevant SOW, either party may terminate such SOW upon not less than 30 days advance written notice to the other party.
- Customer Obligations. Customer agrees that it will cooperate with and assist Fountain in the performance of Professional Services, will provide the resources specified in the relevant SOW, and will perform or fulfill all obligations required to be performed or fulfilled by Customer under the terms of the relevant SOW. Customer acknowledges that if it fails to provide assistance and perform or fulfill its obligations, Fountain’s ability to provide such Professional Services, meet the performance schedule set forth in such SOW, and keep professional services fees reasonably in line with any estimates given in the SOW may be adversely affected. If Customer requests Fountain to perform Professional Services on or with respect to any third party software, Customer represents and warrants to Fountain that Customer has all necessary rights to allow Fountain to do so. Customer will be responsible for and shall ensure that while Fountain employees, agents or subcontractors are on Customer’s premises, all proper and legal health and safety precautions are in place and fully operational to protect such persons.
- Work Product License. Subject to Customer’s payment in full of the Fees related to Professional Services associated with any Work Products, and subject further to Customer’s compliance with this Agreement, Fountain grants to Customer a limited, worldwide, non-exclusive, non-transferable, non-sublicenseable license to use the Work Products solely for Customer’s internal business purposes in support of Customer’s permitted use of the Services during the Term.
- Customer hereby grants Fountain a worldwide, perpetual, non-exclusive, irrevocable royalty-free, fully paid right, and license (with the right to sublicense) to: host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, create derivative works of, and distribute Customer Data, in whole or in part, in any and all media or distribution methods (now known or later developed) in accordance with the settings on Customer’s account(s) and the features of the Services Customer elects to utilize; to use Customer Data to contact job applicants directly for transactional purposes related to the Services, to suggest job openings available with Customer or with other companies using the Services, to connect other companies with job openings to job applicants, to administer and resolve any end user inquiries or, feedback, or complaints about the Services, to otherwise communicate with end users and Customer about the Services and for Fountain’s own direct marketing purposes; and to otherwise use the Customer Data in the course of providing the Services to Customer.
- Fountain shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services, and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom and information provided by third party analytical tools), and Fountain will be free (during and after the Term) to use such information and data to maintain, improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and other Fountain offerings; and disclose such data solely in aggregate or other de-identified form in connection with its business and in accordance with applicable law. Fountain further reserves the right to, and Customer acknowledges and agrees that Fountain may, analyze, copy, process, collect, and/or reproduce Customer Data for the purpose of complying with a regulatory inquiry or judicial action of a governmental body, provided that Fountain will use its best practicable efforts to limit the use and/or disclosure of Customer Data to what is required by the scope of the inquiry or action and will notify Customer, to the extent permitted by the inquiry or action, of the disclosure of Customer Data in connection therewith.
- Fountain is not responsible for performing, and is not liable for any failure to perform, any back-up of any Customer Data in or through the Services. Fountain recommends that Customer perform regular exports and back-ups of Customer Data. Any redundancy requirements of Customer shall be subject to a specific order in an Order Form and shall be charged separately from the fees for Services.
- Fountain and its suppliers own the Services, Professional Services, Work Products, and Documentation, including, without limitation, any and all worldwide copyrights, patents, trade secrets, trademarks, and proprietary and confidential information rights in or associated with the foregoing (the “Fountain IP” as used in this Section 6). The Fountain IP is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. No ownership rights in the Fountain IP are transferred to Customer by this Agreement. Customer does not have any rights to the Fountain IP except for the limited express rights granted in this Agreement. To the extent any derivatives of the Fountain IP are created in the course of performing Services or Professional Services, any and all worldwide copyrights, patents, trade secrets, trademarks, and proprietary and confidential information rights in or associated with such derivatives shall be wholly owned by Fountain upon their creation. THIS AGREEMENT IS NOT A WORK-FOR-HIRE AGREEMENT.
- Customer owns all right, title, and interest in and to the Customer Data. No ownership rights in the Customer Data are transferred to Fountain. Fountain does not have any rights to the Customer Data except for the limited express rights granted in this Agreement.
- Fountain owns all right, title, and interest in and to any data that is uploaded to the Services by a job applicant or otherwise provided by a job applicant directly to Fountain; and any data that is based on or derived from the Customer Data.
Optional Third-Party Services.
- Fountain or third parties may make available third-party products or services, including, for example, mobile applications, integrations, and implementation and other consulting services (“Third-Party Services”) that Customer may elect to purchase or use. Any acquisition by Customer of such Third-Party Services and any exchange of data between Customer and any Third-Party Service or Third-Party Service provider is solely between Customer and the applicable third-party provider. Fountain does not warrant or provide support for Third-Party Services, whether or not they are designated by Fountain as “recommended” “certified” or otherwise.
- If Customer elects to use any Third-Party Services with the Services, Customer grants Fountain permission to allow the Third-Party Service and its provider to access Customer Data as required for the interoperation of that Third-Party Service with the Services. Fountain is not responsible for any disclosure, modification, or deletion of Customer Data resulting from access by such Third-Party Service or its provider. Customer is responsible for directly negotiating any limits on the use of Customer Data by the Third-Party Services directly with the Third-Party Services.
- The Services may contain features designed to interoperate with Third-Party Services. To use such features, Customer may be required to obtain access to such Third-Party Services from their providers, and may be required to grant Fountain access to Customer account(s) on such Third-Party Services. Fountain cannot guarantee the continued availability of such Services 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 Third Party Service ceases to make the Third Party Service available for interoperation with the corresponding Services features in a manner acceptable to Fountain.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information”). Confidential Information of Fountain includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Customer includes Customer Data. The Receiving Party agrees: (1) to take reasonable precautions to protect the Disclosing Party’s Confidential Information; and (2) not to use (except in performance of the Services, Professional Services, or as otherwise expressly permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any Confidential Information of Disclosing Party after five years following the disclosure thereof (or, with respect to trade secrets, for so long as such Confidential Information constitutes a trade secret under applicable law), or any Confidential Information of Disclosing Party that the Receiving Party can document: (1) is or becomes generally available to the public; (2) was in its possession or known by it prior to receipt from the Disclosing Party; (3) was rightfully disclosed to it without restriction by a third party; (4) was independently developed without use of or reference to any Confidential Information of the Disclosing Party; or (5) is required to be disclosed by law.
Payment of Fees.
- Customer will pay Fountain all fees described in an Order Form or SOW in accordance with the terms therein (the “Fees”). If Customer chooses a different Plan than set forth on the Order Form or Customer’s use of the Services otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such Plan and/or usage and Customer agrees to pay the additional fees. Fountain reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Order Term or then current renewal Order Term, upon 30 days’ prior notice to Customer (which may be sent by email). If Customer believes that Fountain has billed Customer incorrectly, Customer must contact Fountain no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Fountain’s customer support department.
- Fountain may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Fountain 30 days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Professional Services or access to the Services. Customer shall be responsible for all taxes associated with Services and Professional Services other than U.S. taxes based on Fountain’s net income.
Term and Termination.
- The term of this Agreement will commence on the effective date of the first Order Form or SOW entered between the parties (“Effective Date”) and will continue until terminated in accordance with this Agreement (the “Term”). Unless otherwise specified in an Order Form, Order Terms will automatically renew for a term equivalent to the initial Order Term upon expiration, unless either party notifies the other of its desire to terminate the applicable Order Form in writing 30 days prior to the expiration date of the then-current Order Term. SOW Terms will automatically expire after the applicable SOW Term is complete.
- So long as there aren’t any outstanding Order Forms or SOWs, either party may terminate this Agreement for any reason upon 30 days’ written notice to the other. Unless otherwise specified in an Order Form or SOW, nNeither party may terminate an Order Form or SOW once it has been executed, other than by termination of this Agreement for material breach as set forth below.
- Either party may terminate this Agreement, effective upon written notice to the other party, if the other party materially breaches this Agreement and such breach is incapable of cure, or with respect to a breach capable of cure, the breaching party does not cure such breach within 30 days of receiving notice of it. Either party may terminate an Order Form or SOW independently of this Agreement if the other party materially breaches such Order Form or SOW and such breach is incapable of cure, or with respect to a breach capable of cure, the breaching party does not cure such breach within 30 days of receiving notice of it. Fountain may terminate or suspend this Agreement or any part of it immediately upon written notice to Customer without a cure period if Customer breaches any of the terms of this Agreement relating to Fountain’s intellectual property rights or Fountain’s Confidential Information. Further, Fountain may terminate this Agreement, effective immediately upon written notice, if Customer files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
- Termination of this Agreement will result in termination of all ongoing Order Forms and SOWs, however termination of a single Order Form or SOW will not result in termination of this Agreement and any other ongoing SOWs and Order Forms.
- Upon any termination, Fountain will make all Customer Data then held by Fountain pursuant to the applicable Order Form or SOW available to Customer for electronic retrieval for a period of 30 days, but thereafter Fountain may, but is not obligated to, delete any stored Customer Data. If Customer terminates this Agreement for material breach, Customer will pay in full for the terminated Services up to and including the last day on which the Services are provided. If this Agreement is terminated for any other reason, Fountain will not refund Customer any Fees paid in advance of such termination; and within ten days of the termination, Customer will pay Fountain 100% of all remaining Fees owed under the terminated Order Form so that Fountain is paid the full annual amount agreed to at the commencement of such Order Term. The following sections of this Agreement will survive any expiration or termination of this Agreement: 1, 3, 5, 6, 8, and 10-17.
Warranty and Disclaimer.
- Mutual Warranties. Each party represents and warrants to the other that: this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against the executing party in accordance with its terms; no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement by the executing party; and the execution, delivery, and performance of this Agreement by the executing party does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound
- Fountain Warranties. Fountain represents and warrants to Customer during the applicable Order Term or SOW Term that Fountain will perform the Services and the Professional Services in a good and workmanlike manner in accordance with industry standards.
- Customer Warranties. Customer represents and warrants to Fountain that: (1) Customer is the creator and owner of the Customer Data, or has the necessary licenses, rights, consents, and permissions to authorize Fountain to use the Customer Data as necessary to exercise the licenses granted by Customer in this Agreement; (2) Customer Data and the use of Customer Data as contemplated by this Agreement, does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (c) cause Fountain to violate any law or regulation; and (3) Customer will use the Services and Work Products in compliance with the Documentation, any instructions provided by Fountain, and all applicable laws and regulations. Although Fountain has no obligation to, and does not routinely, monitor Customer’s use of the Services, Professional Services, or Work Products, Fountain may do so and may prohibit any use of the Services or Work Products it believes may be (or alleged to be) in violation of the foregoing warranties or applicable law.
- EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 11, THE PARTIES MAKE NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER RELATING TO THIS AGREEMENT. FOUNTAIN EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. FOUNTAIN DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES OR WORK PRODUCTS. FOUNTAIN DOES NOT WARRANT THAT THE SERVICES OR WORK PRODUCTS ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES OR WORK PRODUCTS WILL BE SECURE OR UNINTERRUPTED. FOUTAIN DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES OR PROFESSIONAL SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES OR PROFESSIONAL SERVICES WILL ALWAYS BE AVAILABLE. FOUNTAIN EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF CUSTOMER’S USE OF THE SERVICES AND PROFESSIONAL SERVICES.
- IF CUSTOMER PURCHASES ACCESS TO AND USES THE FUNCTIONALITY OF THE SERVICES THAT SOURCES JOB APPLICANTS FOR CUSTOMER BASED ON CUSTOMER’S SPECIFICATIONS (“FOUNTAIN SOURCE”), CUSTOMER ACKNOWLEDGES AND AGREES THAT FOUNTAIN DOES NOT INDEPENDENTLY VERIFY THE REPRESENTATIONS OR STATED QUALIFICATIONS OF JOB APPLICANTS PROVIDED VIA FOUNTAIN SOURCE. FURTHER, FOUNTAIN DOES NOT REPRESENT OR WARRANT THAT ANY SPECIFIC JOB REQUIREMENTS ARE NECESSARY OR APPROPRIATE FOR ANY PARTICULAR JOB. CUSTOMER IS SOLELY RESPONSIBLE FOR VERIFYING THAT JOB APPLICANTS MEET CUSTOMER’S REQUIREMENTS, AND IS SOLELY RESPONSIBLE FOR CONDUCTING ITS HIRING PROCESS IN ACCORDANCE WITH APPLICABLE LAW AND PERFORMING BACKGROUND CHECKS, INTERVIEWS, AND OTHERWISE VETTING JOB APPLICANTS AS APPROPRIATE. FOUNTAIN SPECIFICALLY DISCLAIMS ANY LIABILITY RELATING TO THE FOREGOING.
- Defense. Customer will defend Fountain from any actual or threatened third party claim, proceeding, or suit (each, a “Claim”) arising out of or based upon Customer’s breach of the warranties provided by Customer in Section 11 above if: Fountain gives Customer prompt written notice of the Claim; Fountain grants Customer full and complete control over the defense and settlement of the Claim; Fountain provides assistance in connection with the defense and settlement of the Claim as Customer may reasonably request; and Fountain complies with any settlement or court order made in connection with the Claim. Fountain will not defend or settle any Claim without Customer’s prior written consent. Fountain will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Customer will have sole control over the defense and settlement of the Claim.
- Indemnification. Customer will indemnify Fountain from and pay all damages, costs, and attorneys’ fees finally awarded against Fountain in any Claim; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Fountain in connection with the defense of a Claim (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of the Claim); and all amounts that Customer agrees to pay to any third party to settle any Claim.
Limitation of Liability.
- NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, FOUNTAIN AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY THEORY OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY OR LOSS OF BUSINESS; FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; FOR ANY MATTER BEYOND FOUNTAIN’S REASONABLE CONTROL; OR FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO FOUNTAIN FOR THE SERVICES OR PROFESSIONAL SERVICES UNDER THE APPLICABLE SOW OR ORDER FORM RELEVANT TO THE CLAIM IN THE SIX MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT FOUNTAIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY FOUNTAIN TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 13 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
Fountain will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Fountain’s reasonable control, so long as Fountain uses all commercially reasonable efforts to avoid or remove those causes of non-performance.
To the extent that Customer gives Fountain feedback, comments, or suggestions concerning the Services or Professional Services (collectively, “Feedback”), Customer hereby assigns to Fountain all right, title, and interest in and to the Feedback, and Fountain is free to use the Feedback without payment or restriction. At Fountain’s request and expense, Customer will execute documents and take such further acts as Fountain may reasonably request to assist Fountain in acquiring, perfecting, and maintaining Fountain’s rights in and other legal protections for the Feedback.
Fountain may publicly list Customer as a customer of Fountain and use Customer’s trademark, trade name, and logo for marketing or promotional purposes and in other communication with existing or potential Fountain customers, resellers, or investors.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sublicensable by Customer except with Fountain’s prior written consent. Fountain may transfer, assign, or sublicense any of its rights and obligations under this Agreement without Customer’s consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and replaces all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications to this Agreement must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Fountain in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any litigation arising from this Agreement will be brought exclusively in the state or federal courts located in San Francisco County, California. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed.
Fountain will provide Technical Support to Customer via both telephone and electronic mail 24 hours a day, seven days a week, with the exclusion of Federal Holidays (“Support Hours”). Customer may initiate a helpdesk ticket during Support Hours by calling 480-433-1197 or any time by emailing [email protected]. Fountain will use commercially reasonable efforts to respond to all Helpdesk tickets within one business day.