Master Terms and Conditions

 

  1. Definitions. Terms used in this Agreement will have the definitions given in these Terms and Conditions or in a Subscription or, if not defined therein, will have their plain English meaning as commonly interpreted in the United States.
  2. Subscriptions. Subscriptions specify the Offerings to be provided under this Agreement and may contain additional details regarding those Offerings. Each Subscription may be accepted by Client only in accordance with the terms specified in that Subscription. If Client accepts multiple Subscriptions, each Subscription accepted by Client is incorporated into and becomes a part of this Agreement. Any terms contained in any document that Client may provide Common Areas in connection with a Subscription, or that Client may require be accepted in connection with any Subscription, are void, of no force or effect, and will not be enforceable against or otherwise bind Common Areas, unless specifically referenced in an applicable Subscription. To the extent of any conflict between these Terms and Conditions and a Subscription, these Terms and Conditions will control, except to the extent a Subscription expressly identifies a provision of these Terms and Conditions to be superseded by that Subscription.
  3. Modifications. The version of these Terms and Conditions initially applicable to each Subscription is the version posted on the Common Areas website on the date Client accepts the Subscription. Thereafter, any subsequent modifications to these Terms and Conditions will apply to any previously accepted Subscription only upon renewal of that Subscription, unless otherwise agreed upon by the parties.
  4. Term. The term of this Agreement (“Term”) will begin on the date Client initially accepts a Subscription (“Effective Date”) and will continue until terminated as specified in Section 13. The term of each Subscription will be as stated in the Subscription, provided that the term of each Subscription will end upon any expiration or termination of this Agreement.
  5. Right to Access. During the term of each Subscription, subject to Client’s compliance with the terms of this Agreement and that Subscription, Common Areas will provide Client with a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Offerings under that Subscription solely for Client’s own purposes as contemplated by this
  6. Access and Use of the Offerings. Access to and use of the Offerings will be through an account established for Client (“Account”). Client will limit access to the Account solely to those of Client’s own employees, contractors, and agents who are authorized by Client to access and use the Account (“Users”). Client will be required to designate one or more User(s) as an administrative User of Client’s Account. Client is responsible for all use of and access to the Offerings by each User and for compliance by each User with the applicable terms of this Agreement. Client shall: (1) ensure the security and confidentiality of all user credentials associated with the Account, and will prevent unauthorized access to or use of the Offerings through the Account; (2) promptly notify Common Areas of any unauthorized access to or use of the Account or if any User credentials are lost, stolen, or otherwise compromised; and (3) ensure that all access and use the Account and all Offerings is in compliance with this Agreement and all applicable laws, rules, and regulations (“Laws”). Common Areas will not be liable for any failure by Client to fulfill its obligations with respect to its Account and Users.
  7. Freemium Offerings. Certain Offerings may be provided by Common Areas without a Fee, as specified in a Subscription or on the Platform (“Freemium Offerings”). Common Areas may modify or terminate any Freemium Offering at any time with or without notice. Each Freemium Offering is subject to the use limits established by Common Areas for that Freemium Offering. Common Areas’ entire liability for all claims and liabilities related to any Freemium Offering will not exceed $100.
  8. Usage Limits. The Offerings may be subject to usage limits, as specified in the Subscription for those Offerings or on the Client’s use of the Offerings is subject to any usage limits. Client acknowledges that Common Areas may monitor and verify Client’s use of the Offerings to confirm such access and use is within all applicable usage limits. Client acknowledges that uses of the Offerings in excess of any applicable usage limits may be subject to additional Fees and agrees to pay any such additional Fees as invoiced by Common Areas.
  9. Applications. Client and its Users may be permitted to access the Offerings through mobile and other applications (“Applications”). In addition to the terms of this Agreement, access to and use of each Application is subject to the terms accompanying that Application. In the event of any conflict between this Agreement and such terms, this Agreement will control with respect to the Offerings and such terms control with respect to the Application.
  10. Third party Integrations. The Offerings may enable Client to integrate with, add links to, and/or access websites, content, products, services, and other offerings of third parties, including users, advertisers, affiliates and sponsors of such third parties (“Integrations”). Common Areas is not responsible for any Integrations or for any third-party websites, content, products, services, or other offerings integrated with or accessible through the Offerings. Client is solely responsible for and bears all risks associated with access and use of all such Integrations and all such third party websites, content, products, services, or other offerings. Client will obtain at Client’s sole expense all rights, permissions, and consents from any third parties necessary to establish, access and use any Integrations and all such websites, products, services, and other offerings. Client’s Integration with, adding links to, and/or accessing third party websites, content, products, services, and other offerings shall constitute an affirmative representation to Common Areas that such right and/or consent has been obtained.
  11. Restrictions. Client acknowledges that the Offerings, including all software, hardware, and other technology used by or on behalf of Common Areas to provide the Offerings (collectively, “Technology”) constitute the valuable Intellectual Property Rights (as defined below) of Common Areas and its licensors. As an express condition on the rights granted herein, Client will not, and will not permit or authorize any User or third party to access or use the Offerings or Technology except as expressly permitted by this Agreement. Without limiting the foregoing, Client will not (1) use the Offerings in any unlawful or illegal manner or for any unlawful purpose; (2) take or permit any action that could damage, disable, overburden, or impair the Offerings or the Technology; (3) use the Offerings to transmit unsolicited marketing communications, promotions or advertisements, or otherwise send “spam;” (4) modify, adapt, alter, translate, or create derivative works based on any portion of the Offerings or Technology, except for permitted Integrations; (5) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, design, or method of operation for the Offerings or Technology; (6) circumvent or overcome (or attempt to circumvent or overcome) any security or technological protection measures, including without limitation, those intended to restrict access to any portion of the Offerings or Technology; (7) interfere with or disrupt in any manner the integrity, performance, operation, or hosting of the Offerings or Technology, or attempt to gain unauthorized access to any portion thereof; (8) alter, obscure or remove any copyright notice, copyright management information or proprietary legend contained in or on the Offerings or Technology; or (9) provide or allow any unauthorized third party to access or use of the Offerings or the Technology.
  12. Fees and Payment. Client agrees to pay Common Areas all fees and other amounts set forth in each Subscription (“Fees”). All Fees will be invoiced as indicated in each Subscription. If a Subscription does not specify any applicable payment terms, Fees under that Subscription will be due and payable as set forth on each invoice for the Fees issued by Common Areas in immediately available U.S. funds within 30 days of the date of the invoice. Except as otherwise set forth herein, all Fees will be non-refundable once paid to Common Areas. Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable Law. Common Areas may change any Fees upon any renewal of this Agreement or any  Subscription, such changes will take effect upon such renewal. Fees do not include any local, state, federal or foreign taxes, levies, assessments, duties, or other governmental charges of any kind or nature, including any value-added tax (VAT), stamp or other similar tax, social security (or local equivalent), state or regional tax, or income or other federal tax (“Taxes”). Client is responsible for paying all Taxes that may be imposed by way of the performance of either party under this Agreement, excluding only Taxes based on Common Areas’ net income.
  13. Termination.
    13.1 For Cause. Either party may terminate this Agreement or any Subscription immediately upon notice to the other party if the other party: (a) materially breaches this Agreement or such Subscription and fails to remedy such breach within 30 days after receiving notice of the breach from the other party; or (b) materially breaches this Agreement or such Subscription in a manner that cannot be remedied.13.2 For No Subscription. Either party may also terminate this Agreement upon 30 days’ notice to the other party at any time there is no current Subscription under this Agreement.
    13.3 Suspension. Without limiting Common Areas’ right to terminate this Agreement, Common Areas may suspend Client’s access to the Offerings upon notice to Client following any breach of this Agreement if deemed reasonably necessary by Common Areas to prevent damage, injury, or harm to Common Areas, the Offerings, any other client or user, or any third party.
    13.4 As Otherwise Stated. This Agreement may also be terminated as expressly stated in Sections 19.2 and
    13.5 Effect of Termination. Any termination of this Agreement will terminate all Subscriptions under this Agreement. Termination of any Subscription will only apply to that Subscription. Upon termination or expiration of this Agreement or any Subscription for any reason: (a) Common Areas may cease providing access to the Offerings under this Agreement or that Subscription; (b) all rights granted to Client under this Agreement or that Subscription will terminate; (c) Client will cease all use of and access to the Platform under this Agreement or that Subscription; (d) Common Areas will be under no further obligation to retain any Client Data; (e) all Fees and other amounts then owed by Client under this Agreement or such Subscription will become immediately due and payable to Common Areas; and (f) each party will promptly and at such party’s expense return to the other party or destroy all Confidential Information of the other party in such party’s possession or control. Upon the request of either party the other party will certify in writing to such party’s compliance with the terms of this Section. The relevant portions of the following Sections will survive termination or expiration of this Agreement for any reason: 1, 12, 13, 14, 15, 18, 19, 20, 21, 24, 25, 26, 27, and 28.
  14. Ownership.
    14.1 Intellectual Property Rights. Common Areas or its licensors retain all right, title, and interest in and to the Offerings, Technology, and all modifications, configurations, improvements, or enhancements thereof or thereto, whether provided by Common Areas or created by either party, either alone or with the other party or any third party, and all Intellectual Property Rights (as defined below) therein or relating thereto. The names and logos of Common Areas and those of its providers and licensors are trademarks of Common Areas or its third-party providers, as applicable, and no right or license is granted to Client to use them. Common Areas transfers no Intellectual Property Rights in or to any inventions, developments, discoveries, works of authorship, or other work product that arise from or relate to any services provided hereunder and retains all Intellectual Property Rights therein or relating Except as expressly stated in this Agreement, Common Areas grants no rights or licenses to Client (whether by implication, estoppel, or otherwise). Any rights not expressly granted to Client hereunder are expressly reserved by Common Areas. For the purposes of this Agreement, “Intellectual Property Rights” means any and all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.14.2 Feedback. If Client provides observations, comments, criticisms, suggestions, improvements, or other feedback relating to the use, operation, performance, functionality, or features of the Offerings (“Feedback”), Common Areas may use that Feedback for any purpose, without notice, payment, or other obligation to Client. All use of any Feedback will be at Common Areas’ sole discretion.14.3 Marketing. Client agrees (a) that Common Areas may identify the Client as a recipient of the Offerings and use Client’s name and logo in sales presentations, marketing materials, and press releases, and (b) to develop a brief Client profile for use by Common Areas on its website for promotional purposes.
  15. Client Information.15.1 Client Information. As between Client and Common Areas, Client retains all right, title, and interest in and to all Client Information. Client is solely responsible for all data, information, and other content submitted to the Offerings or otherwise made available to Common Areas by or on behalf of Client, including by any User (“Client Information”), including the accuracy, quality, integrity, legality, reliability, and appropriateness of all of all Client Client will obtain and maintain all consents, permissions, and rights necessary to enable (a) Client to use, provide, disclose or otherwise make available all Client Information as contemplated by this Agreement, and (b) all use and processing of all Client Information as permitted or required by this Agreement or as otherwise instructed by Client.15.2 Use and Processing of Client Information. Common Areas may access, use, process and disclose Client Information (a) for purposes of providing the Offerings and enabling the operation of the Platform, (b) to perform its obligations or exercise or enforce its rights under this Agreement, and (c) as otherwise required by applicable Law. Notwithstanding anything to the contrary herein, Common Areas shall have the right to collect and analyze aggregated data and other information relating to the provision, use, and performance of the Offerings and Common Areas shall be free to use such data and other information to improve and enhance the Offerings and for other development, diagnostic, and corrective purposes in connection with its business.

    15.3 Restricted Information. Client acknowledges that the Platform is a general purpose platform and is not designed to comply with Laws applicable to: (a) social security numbers, passport numbers, military numbers, voter numbers, driver’s license numbers, taxpayer numbers, or other government identification numbers; (b) Protected Health Information (as defined in the S. Health Insurance Portability and Accountability Act of 1996 and regulations thereunder), or similar information under other comparable Laws; or (c) financial account numbers (including credit or debit card numbers, or any related security codes or passwords), bank account numbers, or similar information (“Restricted Information”). Client will not provide through any Offering or otherwise make available to Common Areas any Restricted Information.

    15.4 Client Personal. In connection with Common Areas’ provision of the Offerings, Common Areas may have access to Client Information that relates to an identified or identifiable natural person (“Client Personal Information”). To the extent Common Areas processes any Client Personal Information, the terms of the Data Protection Addendum set forth in Exhibit A shall apply and the parties agree to comply with such terms

  16. Information Security. Common Areas will implement and maintain reasonable and appropriate technical and organizational measures, in accordance with applicable Law, designed to protect against accidental, unlawful, or unauthorized access to or use,destruction, loss, alteration, disclosure, transfer, or processing of Client Information, and designed to ensure a level of security appropriate to the risks presented by the processing of data similar to Client Information. Subject to applicable Law, Common Areas will notify Client without undue delay if Common Areas becomes aware of a breach of its security leading to the unauthorized disclosure of, or access to, Client Information (“Security Breach”). Common Areas will cooperate with Client in dealing with any such Security Breach. Client is solely responsible for complying with Laws applicable to Client with respect to any Security Breach, including fulfilling any notification obligations related to such Security Breach.
  17. Representations and Warranties.17.1 General Warranties. Each party represents, warrants, and covenants to the other party that: (a) it has and will continue to have during the Term, all rights, power, and authority necessary to enter into this Agreement and perform all of its obligations under this Agreement; (b) the performance of its obligations under this Agreement will not violate any Laws applicable to such party’s performance, any rights of any third party; or any agreement by which such party is bound; and (c) it will procure all rights, certificates, licenses, permits or other approvals required for its performance under this
    17.2 Performance.
    During the Term, Common Areas represents and warrants to Client that the Offerings will operate to provide the functionality described in each Common Areas’ sole obligation and Client’s sole and exclusive remedy in the event of any failure by Common Areas to comply with the foregoing sentence will be for Common Areas to, at its option: (a) remedy the failure, re- perform any affected services; or (b) refund to Client the portion of any Fees attributable to any affected Offering.
  18. Disclaimer of Warranties. except as Expressly provided herein, THE Offerings ARE PROVIDED BY Common Areas AND ITS LICENSORS “AS IS” AND “AS AVAILABLE,” WITHOUT ANY REPRESENTATIONS, WARRANTIES, OR COVENANTS OF ANY KIND and Common Areas DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND COVENANTS, WHETHER EXPRESS, IMPLIED, or statutory, REGARDING THIS AGREEMENT, the OFFERINGS, or ANY technology, INCLUDING ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Common Areas OR ITS AGENTS OR REPRESENTATIVES WILL CREATE ANY REPRESENTATIONS, WARRANTIES OR COVENANTS UNLESS CONFIRMED IN WRITING BY Common Areas AS AN AMENDMENT TO THIS
  19. Indemnity.

    19.1 Indemnification by Client.
     Client will defend, indemnify, and hold harmless Common Areas (and its officers, directors, employees, contractors, agents, and licensors) from and against any damages, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with any third party claim, allegation, or lawsuit against Common Areas based on: (a) use of or access to the Offerings by or on behalf of Client, except due to the breach by Common Areas of this Agreement; (b) any Client Information or any access to or use of any Client Information; (c) damage to property or injury to or death of any person directly or indirectly caused by19.2 Indemnification by Common Areas. Common Areas will defend, indemnify, and hold harmless Client (and its officers, directors, employees, contractors, and agents) from and against any damages, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with any third-party claim, allegation, or lawsuit against Client based on an assertion that access to or use of the Offerings by Client in accordance with this Agreement infringes or misappropriates the Intellectual Property Rights of such third If Client is, or Common Areas reasonably believes that Client will become, subject to any such third party claim, Common Areas may at its option and expense: (a) procure for Client the right to continue using the Offerings; (b) replace or modify the Offerings so they no longer infringe; or, if (a) and (b) are not commercially reasonable, (c) terminate this Agreement. Common Areas’ obligations under this Section will not extend to any claim based on or arising from any: (i) software, hardware, systems, network, or technology of Client or any third party; (ii) other software, hardware, systems, network, or technology not provided by Common Areas as part of the Offering in question; (iii) Integrations; (iv) modifications or changes to any Offering by or on behalf of Client, whether or not in violation of this Agreement; (v) use, installation, integration, incorporation, or combination of any Offering with or into any other software, hardware, system, network, or technology; (vi) Client Information; or (vii) access to or use of any Offering other than as permitted by this Agreement. THIS SECTION STATES COMMON AREAS’ ENTIRE LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION CLAIMS RELATING TO THIS AGREEMENT AND THE OFFERINGS.
  20. Limitation of Liability. IN NO EVENT WILL Common Areas BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, special, INCIDENTAL, EXEMPLARY, PUNITIVE DAMAGES or other losses OF ANY KIND, whether in contract, tort, or any other legal theory, ARISING OUT OF THE USE OR INABILITY TO USE OR ACCESS any part of the offerings, INCLUDING ANY LOST, CORRUPTED OR ALTERED DATA, INFORMATION, OR CONTENT, LOSS OF USE OF DATA, INFORMATION, OR CONTENT, RECOVERY OF DATA, INFORMATION, OR CONTENT, OR LOSS OR INTERRUPTION OF BUSINESS OR PROFITS, EVEN IF Common Areas HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE FORESEEABLE. IN NO EVENT WILL THE total cumulative LIABILITY OF Common Areas RELATING TO THIS AGREEMENT, THE offerings, OR ANY RESULTS OBTAINED FROM THE USE THEREOF OR ACCESS THERETO, EXCEED the fees paid by client to Common Areas hereunder in the prior THREE (3) month period preceding the events giving rise to the liability. IN STATES WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, Common Areas’ LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
  21. Confidentiality.

    21.1 Confidential Information.
    For purposes of this Agreement, “Confidential Information” means any data, or information regarding the business, finances, services, or technology of the other party provided to or otherwise obtained by a party under or in connection with this Agreement, including technical, marketing, financial, pricing, employee, and planning information, and any other data or information received or otherwise obtained under this Agreement that a reasonable person should have known, under the circumstances, was confidential or
    21.2 Protection.
    Each party (the “Receiving Party”) may from time to time receive or otherwise obtain Confidential Information from the other party (the “Disclosing Party”). The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information in the same manner as the Receiving Party protects its own confidential information of a similar nature but in no case with less than reasonable care. The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in its possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the request of the Disclosing Party.21.3 Exceptions. The Receiving Party’s obligations with respect to any Confidential Information of the Disclosing Party will terminate if such information: (a) was already lawfully known to the Receiving Party as of the Effective Date; (b) is disclosed to the Receiving Party after the Effective Date by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party becomes, generally available to the public; or (d) is independently developed by the Receiving Party without access to, use of, or reference to, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) necessary for the Receiving Party to enforce its rights under this Agreement; or (ii) required by law or by the order of a court of similar judicial, regulatory or administrative body, provided that the Receiving Party notifies the Disclosing Party in advance of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
  22. Equitable Relief. Client agrees that due to the unique nature of the Offerings and the Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Client or third parties to unfairly compete with Common Areas resulting in irreparable harm to Common Areas, and therefore, that upon any such breach of this Agreement or threat thereof, Client will not oppose any attempt by Common Areas to obtain, in addition to whatever remedies it may have at law, an injunction or other appropriate equitable relief without making any additional showing of irreparable.
  23. Subcontracting. Common Areas may utilize third parties to provide portions of the Offerings and its other obligations under this Agreement, provided that such third party has agreed to terms consistent with this Agreement. Notwithstanding the use of any such third party, Common Areas will remain responsible for providing the Offerings and performing its other obligations under this Agreement.
  24. Notice. All notices, consents, authorizations, and approvals to be given by a party hereunder will be in writing and will either be via: (1) hand-delivery; (2) Federal Express or a comparable overnight mail service; (3) certified mail, return receipt requested, to the other party; (4) facsimile transmission, provided that an original copy of a transmission will be delivered by some other means permitted by (1) – (3) of this Section; or (5) by electronic mail transmission, provided that receipt of such electronic mail is confirmed by the recipient. All notices will be effective upon confirmation or acknowledgment of receipt (or when delivery is refused), except notice by electronic mail which will be effective only after receipt of the electronic mail is actually confirmed by the recipient. Either party may change its address for notice by giving notice of the new address to the other party.
  25. Force Majeure. Neither party will be responsible for failure or delay in the performance of any obligation under this Agreement, excluding the payment of Fees, to the extent such failure or delay is due to acts of God or governmental authority, war, terrorism, strikes, boycotts, quarantine, pandemic, labor disputes, fire or other loss of facilities, accident, or any other cause beyond its control, provided that such party notifies the other party of such event and continues to use commercially reasonable efforts to resume performance. If any failure or delay caused by any such event continues for 30 days or longer, the party unaffected by such event will have the right to terminate this Agreement without cost or liability upon notice to the affected party.
  26. Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California, U.S.A., without regard to any applicable principles of conflicts of laws. Subject to Section 27, any legal action, suit, or proceeding arising out of or relating to this Agreement or the breach thereof may be instituted by either party solely in the federal or state courts located in Orange County, California, S.A. Each party hereby submits to the personal jurisdiction of such court and waives any right each might otherwise have to claim lack of personal jurisdiction or forum non conveniens.
  27. Disputes. The parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination of this Agreement (each, a “Dispute”) through discussion between the parties. If any Dispute cannot be resolved through negotiations between the parties, either party may submit such Dispute for final settlement through binding arbitration to be administered by the American Arbitration Association (or any successor thereto), in accordance with the American Arbitration Association’s Commercial Arbitration Rules (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator, selected as provided in the Rules. The arbitration will be conducted in the English language at a site specified by Common Areas in Orange County, California, U.S.A. The arbitrator will apply the laws of the State of California, U.S.A. to any such arbitration and shall have the power to award any remedy available at law or in equity; provided, however, that the arbitrator shall have no jurisdiction to amend this Agreement or grant any relief not permitted herein or beyond the relief permitted herein. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrator will require the non-prevailing party to pay the prevailing party’s costs, fees and expenses (including attorneys’ fees). Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
  28. General. This Agreement includes all Exhibits referenced herein and all Subscriptions entered into by the parties under this Agreement. This Agreement constitutes the entire agreement between the parties and supersedes any proposal or prior agreement, oral or written, and any other communications between the parties, in relation to the subject matter of this If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with applicable Law, replaced by a provision that closely approximates the original intent and economic effect of the original to the extent consistent with applicable Law, and the remaining provisions will remain in full force and effect. In any dispute relating to this Agreement, the prevailing party will be entitled to recover its reasonable expenses and attorneys’ fees from the other party. Client may not assign or otherwise transfer this Agreement or any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without obtaining prior written consent of Common Areas. Any attempted assignment or transfer in violation of this Agreement will be void and of no effect. The relationship between the parties is that of independent contractors and no agency, partnership, franchise, joint venture or employment relationship is intended or created by this Agreement. Neither party is an agent of the other and neither party is authorized to make any representation, contract, or commitment on behalf of the other party. No term of this Agreement will be construed to confer any third-party beneficiary rights on any non-party. Each and every right and remedy hereunder is cumulative with each and every other right and remedy herein or in any other agreement between the parties or under applicable Law. The words “include,” “includes” and “including” means “include,” “includes” or “including,” in each case, “without limitation.” Except as expressly set forth in this Agreement, this Agreement may be modified or amended only by the mutual written (or electronic) agreement of the parties. All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. The preprinted terms of a purchase order or any other similar document will not apply to or modify this Agreement.

EXHIBIT A

DATA PROTECTION ADDENDUM 

This Data Protection Addendum (“Addendum”) supplements the Agreement between Common Areas and Client referencing this Addendum and governs Client’s use of the Offerings.

 

Unless otherwise defined in this Addendum, all capitalized terms used herein shall have the meanings given to them in the Agreement.

 

This Addendum is incorporated into and made subject to the terms of the Agreement. Except as expressly stated otherwise, in the event of any conflict between the terms of the Agreement and this Addendum, the terms of this Addendum shall control as to the Processing of Personal Information (as defined herein) and the terms of the Agreement shall control in all other respects.

 

The parties agree to comply with the following provisions with respect to any Personal Information.

 

  1. Definitions
    1.1 “Data Protection Laws” means all Laws applicable to a party in connection with the Processing of Personal Information under the
    1.2 “Data Subject” means the individual about whom the Personal Information
    1.3 “Personal Information” means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular person, where such information is Processed by Common Areas through the Offerings under the
    1.4 “Process” or “Processing” means any operation or set of operations which is performed on data, such as collection, storage, alteration, retrieval, access, use, disclosure, dissemination or otherwise making available, combination, or

 

  1. Client Obligations. Client shall, in its use of the Offerings, comply at all times with Data Protection Laws. Client represents, warrants, and covenants to Common Areas that (1) all Personal Information has been collected, Processed, and transferred to Common Areas in accordance with Data Protection Laws, and (2) Client’s instructions to Common Areas related to the Processing of Personal Information, including Client’s use and configuration of the Offerings, will not violate Data Protection Common Areas reserves the right to terminate all Offerings where it reasonably believes that Client is in breach of any part of this section.

 

  1. Processing of Personal Information. Common Areas will Process Personal Information only as permitted or required by the Agreement or applicable Laws or pursuant to Client’s Where required to Process Personal Information by applicable Laws, Common Areas will inform Client of such requirement, to the extent permitted by applicable Law.

 

  1. Confidentiality. Common Areas will treat all Personal Information in accordance with the Confidentiality provisions of the Agreement.

 

  1. Data Subject Rights. If Common Areas receives a request from a Data Subject in relation to the exercise of a right under Data Protection Laws (“Data Subject Request”), Common Areas will, to the extent legally permitted and to the extent Common Areas is able to identify that the request comes from a Data Subject whose Personal Information was submitted by Client through Client’s use of the Offerings, notify Client. Taking into account the nature of the Processing, Common Areas will reasonably assist Client, at Client’s expense, in the fulfilment of Client’s obligation to respond to Data Subject

 

  1. Return or Destruction of Personal Information. At the choice of Client, Common Areas will delete or return to Client all Personal Information in Client’s own Account after the end of the provision of the relevant Offerings, and delete existing copies of such Personal Information unless Data Protection Laws require further storage of such Personal

 

  1. Subcontractors. Common Areas will ensure that each third party subcontractor engaged by Common Areas to Process Personal Information (“Subcontractor”) enters into a written agreement with Common Areas containing data protection obligations no less protective than those in this Addendum as applicable to the Subcontractor’s Processing of Personal Information. Upon request, as required by applicable Laws, Common Areas shall make available to Client the current list of third parties that carry out Processing of Personal Information. Common Areas shall remain fully liable to Client for the performance of its obligations under this Addendum by such third parties.

 

  1. European Specific Provisions. If Client Information contains Personal Information about Data Subjects in the European Economic Area (“EU Personal Information”), the terms of this Section will apply to Processing of such Personal Information:
    8.1 Details of Processing. The subject-matter of Processing of EU Personal Information by Common Areas is the provision of the Offerings pursuant to the Agreement. The duration of the Processing, the nature and purpose of the Processing, the types of EU Personal Information and categories of Data Subjects are further specified in Schedule 1 (Details of the Processing) of this Addendum.
    8.2. Audits and Compliance.
    (a) Upon Client’s prior written request, and subject to the confidentiality obligations set forth in the Agreement, Common Areas shall make available to Client once per 12 month period information reasonably necessary to demonstrate compliance with it’s the obligations as to EU Personal Data set forth in this
    (b) In addition, Common Areas will allow for and contribute to audits and inspections of Common Area’s books and records as reasonably required to evaluate Common Areas’ compliance with it’s the obligations as to EU Personal Data set forth in this Addendum (“Audits”). Audits may be conducted by Client or an independent third-party auditor that is subject to confidentiality obligations substantially similar to those set forth in the Agreement. Audits may only occur up to once during any 24 month period, during normal business hours, and only after reasonable written notice to Common Areas (not less than 30 days) unless otherwise required by Client’s regulators or applicable Data Protection Before the commencement of any such Audit, Client and Common Areas shall mutually agree upon the scope, timing, and duration of the Audit. Audits will be conducted in a manner that does not have any adverse impact on Common Areas’ normal business operations. Any records, data or information accessed by the Client and/or the independent third- party auditor in the performance of any Audit will be deemed to be the Confidential Information of Common Areas under the Agreement and may be used for no other reason than to assess Common Areas’ compliance with the terms of this Addendum. Client shall reimburse Common Areas for actual expenses and costs incurred in connection with any Audit. Client shall promptly notify Common Areas with information regarding any non-compliance discovered during the course of an Audit.
    8.3 Privacy Impact Assessment and Prior Consultation. Taking into account the nature of the Processing and the information available to Common Areas, Common Areas will reasonably assist Client in complying with Client’s obligations under Data Protection Laws regarding data protection impact assessments and prior consultations related to Client’s use of the
    8.4 Standard Contractual. Client agrees to execute the Standard Contractual Clauses for Data Processors established in third countries adopted pursuant to European Commission Decision (2010/87/EU) (“SCCs”) if and to the extent the obligations to be performed by Common Areas under the Agreement require the parties to enter into such SCCs to comply with Data Protection Laws. The terms of the SCCs shall take precedence over those in this Addendum. If the SCCs cease to be recognized as a legitimate basis for the transfer of EU Personal Information to an entity located outside of the European Economic Area, the parties will cooperate to identify and implement, or otherwise will seek to adhere to, an alternative means to comply with Data Protection Laws, to the extent available.
  2. Updates. Common Areas may update the terms of this Addendum upon prior notice, including where necessary to: (1) comply with updates to Data Protection Law; (2) reflect changes resulting from a merger, acquisition, or other similar transaction; or (3) address Common Areas’ release of new products or services or material changes to any existing Offerings.

SCHEDULE 1 – DETAILS OF THE PROCESSING

Nature and Purpose of Processing. The nature and purpose of the Processing is to enable Client to utilize the Offerings provided by Common Areas, as further specified in the Agreement, and as further instructed by Client in its use of the Offerings.

 

Duration. The duration of Processing shall be for the term specified in the Agreement applicable to the provision of the Offerings, unless otherwise instructed by Client.

 

Type of Personal Information. Client may submit Personal Information to the Offerings, which may include, but is not limited to the following categories of Personal Information:

  • Full Name
  • Username or Login Information
  • Email Address
  • Phone Number
  • Contact Details
  • Other

 

Categories of Data Subjects. Client may submit Personal Information to the Offerings, which may include, but is not limited to Personal Information relating to the following categories of Data Subjects:

  • Employees
  • Controllers
  • Prospective Clients
  • Prospective Hires
  • Contractors
  • Vendors
  • Other