FOUNTAIN MASTER SUBSCRIPTION AGREEMENT
Effective Date: September 3, 2020
Last Updated Date: September 3, 2020
This Master Subscription Agreement (this "Agreement") is between OnboardIQ, Inc., a Delaware corporation ("Fountain") and Customer (as defined below).
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER FORM, SOW, OR OTHER DOCUMENT THAT REFERENCES THIS AGREEMENT, BY USING (OR MAKING ANY PAYMENT FOR) THE SERVICES,OR BY OTHERWISE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU: (1) AGREE TO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT ("CUSTOMER"); AND (2) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE 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 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.
- “Applicable Law" means all international, federal, state, provincial, and local laws, regulations, binding regulatory guidance, directives, and governmental requirements applicable to the Services, or either party’s performance under this Agreement, including applicable employment law, labor law, and laws regarding employee classification.
- “Applicant Data" means any Personal Information other than Customer Data which is collected, inferred, created, stored, processed, transmitted, accessed or used by Fountain in connection with an Applicant’s use of the Services to submit an Application to Customer.
- “Authorized Users" means employees and contractors of Customer for whom Customer has paid all applicable fees for access to and use of the Services.
- “Confidential Information" means information that either party (“Discloser") discloses to the other party (“Recipient") under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. “Confidential Information" does not include information that Recipient can document: (1) is independently developed by Recipient; (2) is rightfully given to Recipient by a third party without confidentiality obligations; or (3) becomes public through no fault of Recipient. Fountain’s Confidential Information includes non-public information regarding features, functionality, and performance of the Services; Documentation; and Usage Data. The Customer Data is Customer’s Confidential Information.
- “Customer Data" means non-public data uploaded by Customer to the Services. “Customer Data" does not include Usage Data.
- “Data Privacy Law" means all applicable laws and regulations relating to privacy, data protection, data security, communications secrecy, breach notification, or the processing of Personal Information, including the California Consumer Privacy Act (Cal. Civ. Code §§ 1798.100, et seq.) and its implementing rules, procedures, exceptions, guidelines and regulations (“CCPA").
- “Documentation" means Fountain-provided user documentation relating to the Services (e.g., user manuals and online help files).
- “Implementation Services" means any implementation, configuration, training, or consulting services specified in an Order Form or otherwise made available by Fountain to Customer.
- “Intellectual Property Rights" means all patent rights (including utility models), copyrights, moral rights, trademark and service mark rights, trade secret rights, and any other similar proprietary or intellectual property rights (registered or unregistered) throughout the world, together with all applications for any of the foregoing.
- “Order Form" means an ordering document or online order specifying the Services to be provided under this Agreement 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.
- “Personal Information" shall have the meaning set forth in the applicable Data Privacy Law and its implementing rules, procedures, exceptions, guidelines and regulations.
- “Scope Limitations" means any limitations on Customer’s use of the Services specified in an Order Form.
- “Services" means Fountain’s software-as-a-service platform that assists users in managing the job application and hiring process, including any related mobile applications and any related services; in each case, as specified in the applicable Order Form and as may be updated from time to time. For clarity, the “Services" do not include any Implementation Services, any professional services, any employment services, or any assistance to Customer regarding: (1) its selection process; (2) the terms of any employment or services provided by applicants; (3) granting or limiting data access by Customer’s employees or agents; or (4) ensuring that Customer complies with all Applicable Law.
- “Usage Data" means data relating to the Authorized Users’ use of the Services or Fountain’s other products and services that is aggregated in such a way that it is not associated with Customer.
- Order Forms. Each Order Form is subject to, and hereby incorporated into, this Agreement. If there is a conflict between this Agreement and an Order Form, this Agreement will control unless the Order Form states that a specific provision of this 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 this Agreement, Fountain grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicenseable right during the Order Term to use the Services by 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 this Agreement, Fountain grants to Customer a worldwide, non-exclusive, non-transferable non-sublicenseable license 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 this Agreement, Fountain will use commercially reasonable efforts during each Order Term to provide technical support to Customer via email, with the exclusion of U.S. federal holidays (“Support Hours"). Customer may initiate a helpdesk ticket during Support Hours by emailing [email protected] Fountain will use commercially reasonable efforts to respond to all helpdesk tickets within one business day.
- Implementation Services. Subject to Customer’s payment of all fees and compliance with this Agreement, Fountain will provide the Implementation Services to Customer as outlined in the Order Form. Customer will provide Fountain any assistance and cooperation reasonably requested by Fountain relating to the Implementation Services.
- Subcontractors. Fountain may use subcontractors or other third parties to perform its obligations under this Agreement, but Fountain will remain responsible for all such obligations.
Restrictions and Responsibilities.
- Use Restrictions. Except as expressly permitted in this Agreement, Customer will not, and will not permit or authorize third parties to: (1) rent, lease, or otherwise permit third parties to use the Services or Documentation; (2) use the Services or Documentation to provide services to third parties (e.g., as a service bureau); (3) use Services or Documentation in any way that would violate the Scope Limitations or this Agreement; (4) circumvent or disable any security or other technological features of the Services; (5) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms related to the Services; (6) modify, translate, or create derivative works based on the Services or Documentation; (7) remove any proprietary notices or labels from the Services or Documentation; or (8) use the Services in a manner that violates or attempts to circumvent Applicable Law. This Section 3.A will apply solely to the extent permitted by Applicable Law.
- Authorized Users; Accounts. Customer is responsible and liable for all actions and inactions by its Authorized Users or by any third party that Customer or an Authorized User permits to access or use the Services, as if such action or inaction were an action or inaction of Customer. Customer is responsible for maintaining control over Customer’s account, including the confidentiality of any login credentials, and is responsible for all activities that occur on or through Customer’s account and its Authorized Users’ accounts.
Optional Third-Party Integrations and Services.
- Third-Party Services. Fountain and third parties may make available third-party products or services, including plugins, mobile applications, integrations (e.g., with background check provider platforms, training platforms, analytics platforms, etc.), and related platforms and services (“Third-Party Services") that Customer may elect to purchase or use. Use of Third-Party Services may be subject to additional fees. The relationship between Customer and the provider(s) of Third-Party Services, including any payment of fees or exchange of data between Customer and any Third-Party Service or Third-Party Service provider is solely between Customer and the applicable Third-Party Service provider, governed by the applicable terms and conditions agreed to by Customer and such Third-Party Service provider.
- Interoperation with the Service. If Customer uses 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 negotiating any limits on the use of Customer Data by the Third-Party Services directly with the Third-Party Service provider.
- Third Party Disputes and Disclaimer. ANY DISPUTE CUSTOMER HAS WITH ANY THIRD-PARTY SERVICE PROVIDER, IS DIRECTLY BETWEEN CUSTOMER AND SUCH THIRD PARTY, AND CUSTOMER IRREVOCABLY RELEASES FOUNTAIN (AND ITS OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. FOUNTAIN DOES NOT WARRANT OR PROVIDE SUPPORT FOR THIRD-PARTY SERVICES, WHETHER OR NOT THEY ARE DESIGNATED BY FOUNTAIN AS “RECOMMENDED," “CERTIFIED," OR OTHERWISE. FOUNTAIN IS NOT RESPONSIBLE FOR ANY VIOLATIONS OF APPLICABLE LAW RELATING TO THIRD-PARTY SERVICES, OR ARISING FROM CUSTOMER’S USE OF THIRD-PARTY SERVICES. FOUNTAIN DOES NOT GUARANTEE THE CONTINUED AVAILABILITY OF ANY THIRD-PARTY SERVICES (OR ANY INTEGRATION WITH THIRD-PARTY SERVICES OR RELATED SERVICES FEATURES), AND IF SUCH THIRD-PARTY SERVICES OR RELATED FEATURES ARE DISCONTINUED, CUSTOMER WILL NOT BE ENTITLED TO ANY REFUND, CREDIT, OR OTHER COMPENSATION.
- Fountain IP. Fountain and its licensors own the Services, Implementation Services, Documentation, and Usage Data, including all Intellectual Property Rights in or associated with, and any derivatives of, the foregoing (the “Fountain IP"). The Fountain IP is protected by copyright law and other Applicable Law. No ownership rights in the Fountain IP are transferred to Customer by this Agreement. Customer does not have any rights in or to the Fountain IP except for the limited express rights granted in this Agreement.
- Customer Data. Customer owns all right, title, and interest in and to the Customer Data. No ownership rights in the Customer Data are transferred to Fountain by this Agreement. Fountain does not have any rights to the Customer Data except for the limited express rights granted in this Agreement.
- Feedback. If Customer gives Fountain feedback, comments, or suggestions concerning the Services or Implementation 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, attribution, or restriction.
- License. Customer hereby grants Fountain a worldwide, non-exclusive, irrevocable, royalty-free, fully-paid, sublicenseable license to host, store, transfer, display, perform, reproduce, modify, create derivative works of, and distribute Customer Data, in any media or distribution methods now known or later developed, in accordance with the settings on Customer’s account and the features of the Services Customer elects to utilize.
- Usage Data. Fountain may collect and analyze Usage Data and other information relating to the provision, use, and performance of various aspects of the Service and related systems and technologies (including information provided by third-party analytical tools). Fountain may analyze, copy, process, collect, use, disclose, and reproduce Usage Data for any purpose, including for the purposes of: (1) complying with a regulatory inquiry or judicial action of a governmental body; and (2) improving the Services and developing new products, services, features, and functionality.
Each party as Recipient will take reasonable precautions to protect Discloser’s Confidential Information, and will not use (except as expressly permitted in this Agreement) or divulge to any third party any Confidential Information except to those employees and representatives of Recipient who have a need to know the Confidential Information to enable Recipient to perform its obligations under this Agreement. Recipient is responsible and liable for its employees’ and representatives’ compliance with this Section 7, as if their actions or inactions were an action or inaction of Recipient. The foregoing will not apply with respect to any Confidential Information five years after 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 that is required to be disclosed by Applicable Law.
Payment of Fees.
- Fees and Payment.
- Customer will pay Fountain all fees described in all Order Forms or SOWs in accordance with the terms therein (the “Fees"). 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 bill Customer through an invoice, in which case, unless otherwise specified in an Order Form, full payment for invoices issued in a given month is due 30 days after the date of the applicable invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum amount permitted by Applicable Law, whichever is lower, plus all expenses of collection, and may result in immediate termination of the Implementation Services or access to the Services. All amounts paid under this Agreement will be paid in U.S. Dollars
- Taxes. Other than federal and state net income taxes imposed on Fountain, Customer will bear all taxes, duties, and other governmental charges relating to the Services and Implementation Services.
- Fees and Payment.
Term and Termination.
- Term. The term of this Agreement will commence on the effective date of the first Order Form between the parties and will continue until terminated in accordance with this Agreement (the “Term"). Upon expiration of an Order Form the Order Term will automatically renew for a term equivalent to the initial Order Term, unless otherwise specified in an Order Form or if either party notifies the other in writing of its desire to terminate the applicable Order Form at least 30 days before the expiration of the then-current Order Term.
- Termination for Convenience. Subject to the payment obligations described in Section 9.E (Post-Termination Obligations), either party may terminate this Agreement, or any Order Form or SOW, for any reason upon 30 days’ prior written notice to the other party.
- Termination for Breach or Insolvency. Either party may terminate this Agreement, or any Order Form or SOW, effective upon written notice to the other party, if the other party materially breaches this Agreement (or the Order Form or SOW) and such breach is incapable of cure, or (if such 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. Either party may terminate this Agreement, effective immediately upon written notice, if the other party 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.
- Effect of Termination. Termination of this Agreement will automatically terminate all active Order Forms and SOWs, but termination of a single Order Form or SOW will not result in termination of this Agreement or any other Order Forms or SOWs. Upon the termination of this Agreement, or an Order Form or SOW, all rights and licenses granted by Fountain to Customer under this Agreement or the applicable Order Form or SOW will terminate. Either party’s termination of this Agreement is without prejudice to any other remedies it may have at law or in equity, and does not relieve either party of liability for breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating this Agreement in accordance with its terms.
- Post-Termination Obligations. Upon any termination of this Agreement, or any Order Form or SOW, Fountain will make all Customer Data and Applicant Data then held on Customer’s behalf by Fountain pursuant to this Agreement or the applicable Order Form or SOW available to Customer for electronic retrieval for a period of 30 days. After such period, Fountain may, but is not obligated to, delete any such Customer Data or Applicant Data. If Customer terminates this Agreement for material breach or if Fountain terminates this Agreement under Section 9.B (Termination for Convenience), Customer will pay a pro rata amount of the Fees for any terminated Services and Implementation Services up to and including the last day on which the Services or Implementation 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 10 days after such termination, Customer will pay Fountain all remaining Fees owed under any terminated Order Forms and SOWs. The following sections of this Agreement will survive any expiration or termination of this Agreement: Sections 1 (Definitions), 3 (Restrictions and Responsibilities), 5 (Ownership), 6 (Data), 7 (Confidentiality), 8 (Fees and Payment), 9.D (Effect of Termination), 9.E (Post-Termination Obligations), 10 (Warranties and Disclaimer), 11 (Indemnification), 12 (Limitations of Liability), 13 (Arbitration), 15 (Compliance with Applicable Law; Export), and 16 (Miscellaneous).
Warranty and Disclaimer.
- Mutual Warranties. Each party represents and warrants to the other that: (1) this Agreement has been duly executed and delivered and constitutes a binding agreement enforceable against the executing party in accordance with its terms; (2) 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 (3) the execution, delivery, and performance of this Agreement by the executing party do not violate the laws of any jurisdiction or the terms 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 that Fountain will perform the Services and the Implementation Services in a good and workmanlike manner in accordance with industry standards.
- Customer Warranties. Customer represents and warrants to Fountain that: (1) Customer has the necessary rights to authorize Fountain to use the Customer Data in accordance with this Agreement, and such use by Fountain of Customer Data does not and will not infringe any third-party right, including any Intellectual Property Right; (2) Customer will use the Services and Implementation Services in compliance with the Documentation and Applicable Law; and (3) Customer will retain all its own employment and applicant records in connection with Applicable Law.
- Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES DESCRIBED IN THIS SECTION 10 (WARRANTIES AND DISCLAIMER), FOUNTAIN MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES, IMPLEMENTATION SERVICES, DOCUMENTATION, USAGE DATA, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE SERVICES, IMPLEMENTATION SERVICES, AND DOCUMENTATION ARE PROVIDED “AS IS." FOUNTAIN DOES NOT WARRANT THAT THE SERVICES, IMPLEMENTATION SERVICES, OR DOCUMENTATION WILL SATISFY CUSTOMER’S REQUIREMENTS, ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. Some jurisdictions do not allow the exclusion or limitation of warranties, so the above limitation or exclusion may not apply to Customer.
- Fountain Source. IF CUSTOMER USES THE FUNCTIONALITY OF THE SERVICES THAT SOURCES JOB APPLICANTS FOR CUSTOMER BASED ON CUSTOMER’S SPECIFICATIONS (“FOUNTAIN SOURCE"), CUSTOMER ACKNOWLEDGES THAT FOUNTAIN DOES NOT INDEPENDENTLY VERIFY THE REPRESENTATIONS OR STATED QUALIFICATIONS OF JOB APPLICANTS PROVIDED VIA FOUNTAIN SOURCE. FOUNTAIN DOES NOT REPRESENT OR WARRANT THAT ANY SPECIFIC JOB REQUIREMENTS ARE NECESSARY OR APPROPRIATE FOR ANY PARTICULAR JOB. CUSTOMER IS SOLELY RESPONSIBLE FOR: (1) VERIFYING THAT JOB APPLICANTS MEET CUSTOMER’S REQUIREMENTS; (2) CONDUCTING ITS HIRING PROCESS IN ACCORDANCE WITH APPLICABLE LAW; (3) PERFORMING BACKGROUND CHECKS, INTERVIEWS, AND OTHERWISE VETTING JOB APPLICANTS AS APPROPRIATE; AND (4) SETTING AND APPLYING HIRING CRITERIA IN ACCORDANCE WITH APPLICABLE LAW. FOUNTAIN DISCLAIMS ANY LIABILITY RELATING TO THE FOREGOING.
- Fountain’s Limited Role as Software Provider. CUSTOMER ACKNOWLEDGES THAT FOUNTAIN’S ROLE IS LIMITED TO PROVIDING A WEB-BASED SOFTWARE SERVICE FOR ITS CUSTOMERS. FOUNTAIN IS NOT AN EMPLOYMENT SERVICE, AN EMPLOYMENT AGENCY, OR A TEMPORARY EMPLOYMENT AGENCY. CUSTOMER IS SOLELY RESPONSIBLE FOR: (1) ITS SELECTION PROCESS; (2) THE TERMS OF ANY EMPLOYMENT OR SERVICES PROVIDED BY APPLICANTS; (3) GRANTING OR LIMITING DATA ACCESS BY ITS EMPLOYEES OR AGENTS; AND (4) ENSURING THAT CUSTOMER COMPLIES WITH ALL APPLICABLE LAW, INCLUDING THOSE RELATING TO EMPLOYEE CLASSIFICATION, EMPLOYMENT TERMINATION, DISCRIMINATION, HARASSMENT OR RETALIATION, RECORDS RETENTION, PRIVACY, UNPAID WAGES, WITHHOLDINGS, OVERTIME PAY, FAILURE TO PROVIDE MEAL AND REST BREAKS, SICK LEAVE, HOLIDAY OR VACATION PAY, RETIREMENT BENEFITS, WORKER'S COMPENSATION BENEFITS, UNEMPLOYMENT BENEFITS, OR ANY OTHER EMPLOYEE BENEFITS.
- Defense. At Fountain’s option and request, Customer will defend Fountain from any actual or threatened third-party claim, proceeding, or suit arising out of or based on Company’s breach of Section 10 (Warranties and Disclaimer), or in connection with any employment, tort, or contractual claims, or government enforcement actions, relating to Customer’s applicants, employees, or service providers (each, a “Claim"). If Fountain requests Customer to defend it from any Claim, Fountain will: (1) give Customer prompt written notice of the Claim; (2) grant Customer full and complete control over the defense and settlement of the Claim; (3) provide assistance in connection with the defense and settlement of the Claim as Customer may reasonably request; and (4) comply with any settlement or court order made in connection with the Claim. Notwithstanding the previous sentence, Customer will not enter into any settlement that involves an admission of guilt or liability of Fountain without Fountain’s prior written consent. Fountain may participate in the defense of a Claim at its own expense and with counsel of its own choosing.
- Indemnification. Customer will indemnify Fountain from and pay: (1) all damages, costs, and attorneys’ fees finally awarded against Fountain in any Claim; (2) all out-of-pocket costs (including 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 (3) all amounts that Customer agrees to pay to any third party to settle any Claim.
Limitations of Liability.
- EXCLUSION OF DAMAGES. NEITHER FOUNTAIN NOR ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, OR EMPLOYEES WILL BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING LOST PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA, EVEN IF FOUNTAIN IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
- DAMAGES CAP. FOUNTAIN’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO FOUNTAIN DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
- BASIS OF THE BARGAIN. 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 12 (LIMITATIONS OF LIABILITY) WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
- Applicability. Some jurisdictions do not allow the exclusion or limitation of damages. This Section 12 (Limitations of Liability) will apply to Customer solely to the extent permitted by Applicable Law.
Any claim, dispute, or controversy between the parties arising out of or relating to this Agreement which cannot be satisfactorily settled by the parties will be finally and exclusively settled by binding arbitration (“Arbitration") upon the written request of either party. The Arbitration will be administered under the American Arbitration Association’s Commercial Dispute Resolution Procedures in force when the notice of arbitration is submitted (the “Rules"). The Arbitration will be conducted by one arbitrator selected in accordance with the Rules. The seat of the Arbitration will be in San Francisco County, California. The Arbitration will be conducted in English. The Arbitration award will be final and binding upon the parties, and judgment upon such award may be entered in any court having jurisdiction. The Arbitration proceedings and any award will be each party’s Confidential Information. The arbitrator’s award may include compensatory damages against either party but the arbitrator will not be authorized to and will not award punitive damages against either party. Nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (A) seek injunctive relief in a court of law; or (B) to file suit in a court of law to address an intellectual property infringement claim.
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.
Compliance with Applicable Law; Export.
Each party will comply with all Applicable Law in connection with exercising its rights or performing its obligations under this Agreement, including applicable export laws. As defined in FAR section 2.101, the Services 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 this Agreement and will be prohibited except to the extent expressly permitted by this Agreement.
- Governing Law. This Agreement is governed by California law without reference to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Subject to Section 13 (Arbitration), all claims arising under this Agreement will be litigated exclusively in the federal or state courts of San Francisco County, California. The parties submit to the jurisdiction in those courts. In any proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
- Non-Solicitation. During the Term and for three years thereafter, Customer will not directly or indirectly solicit for employment or otherwise induce, influence, or encourage any employee or contractor of Fountain to terminate their engagement with Fountain. This Section 16.B will apply solely to the extent permitted by Applicable Law.
- Injunctive Relief. If either party breaches Sections 5 (Ownership) or 7 (Confidentiality), the other party may suffer irreparable harm, and monetary damages may be inadequate to compensate the non-breaching party. Accordingly, either party may, in addition to any other remedies available, seek injunctive or other equitable relief in response to any such breach.
- Further Assurances. Each party will execute and deliver any documents or instruments, and take any further actions that are reasonably required, to provide the other party the full benefits and rights described in this Agreement.
- Assignment. Customer may not assign its rights or delegate its performance under this Agreement without Fountain’s prior written consent, and any attempt to do so is void. Fountain may assign its rights or delegate its performance under this Agreement without Customer’s consent. This Agreement is binding upon and inures to the benefit of the parties’ permitted successors and assignees.
- Severability. If any provision of this Agreement or portion of a provision is invalid, illegal, or unenforceable, the rest of this Agreement will remain in effect.
- No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
- Entire Agreement. This Agreement (including any Exhibits, Order Forms, and SOWs) constitutes the entire agreement and supersedes any other agreement of the parties relating to its subject matter. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, or supplement the terms of this Agreement.
- Amendment. This Agreement may only be amended in a writing signed by both parties and stating that it is amending this Agreement.
- Nature of Rights. The licenses granted under this Agreement are rights in “intellectual property" within the scope of Section 101 (or its successors) of the United States Bankruptcy Code (the “Code"). Each party as licensee will have and may fully exercise all rights available to a licensee under the Code, including under Section 365(n) or its successors.
- Relationship. The parties are independent contractors of each other. Each party is responsible for instructing and managing its employees and personnel. This Agreement does not create any agency, partnership, or joint venture relationship between the parties.
- No Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement.
- Notices. All notices under this Agreement must be in writing, and will be considered given: (1) upon delivery, if delivered personally or by internationally recognized courier service; (2) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (3) upon acknowledgement of receipt, if delivered by email. Either party may update its notice address by notice to the other party in accordance with this Section. All notices to Fountain will be sent to:
OnboardIQ, Inc. dba Fountain 275 Sacramento St.,3rd Floor San Francisco, CA 94111 Email: [email protected]
- Force Majeure. Fountain will not be liable for any delay or failure to perform under this Agreement as a result of any cause or condition beyond Fountain’s reasonable control, so long as Fountain uses reasonable efforts to avoid or remove those causes of delay or non-performance.
- Interpretation. If Fountain provides a translation of the English language version of this Agreement, the translation is provided solely for convenience, and the English version will prevail. Any heading, caption, or section title contained in this Agreement is for convenience only, and does not define or explain any provision. Any use of the term “including" or variations thereof should be construed as if followed by the phrase “without limitation."
- Counterparts. This Agreement may be executed in counterparts (which may be exchanged by email). Each counterpart should be considered an original, but all counterparts together should constitute the same Agreement.