TERMS AND USE CONDITIONS
1. SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Iron Pulley will use commercially reasonable efforts to provide Customer the Services. As part of the registration process (when applicable), Customer will identify an administrative user name and password for Customer’s Company account. Iron Pulley reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2 Subject to the terms hereof, Iron Pulley will provide Customer with reasonable technical support services in accordance with Iron Pulley’s standard practice.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: 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 or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Iron Pulley or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
2.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Iron Pulley’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. [Customer hereby agrees to indemnify and hold harmless Iron Pulley against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services.] Although Iron Pulley has no obligation to monitor Customer’s use of the Services, Iron Pulley may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 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 “Proprietary Information” of the Disclosing Party). Proprietary Information of Iron Pulley includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Iron Pulley to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer recognizes that creative designs are proprietary to Iron Pulley and will
4. PAYMENT OF FEES
4.1 Customer will pay Iron Pulley the then applicable fees described in the Services Agreement for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Services Agreement or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Iron Pulley reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Iron Pulley has billed Customer incorrectly, Customer must contact Iron Pulley 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 Iron Pulley’s customer support department.
4.2 Iron Pulley may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Iron Pulley thirty (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 Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Iron Pulley’s net income.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Services Agreement, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least seven (7) days prior to the end of the then-current term.
5.2 dIn addition to any other remedies it may have, either party may also terminate this Agreement upon seven (7) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
Iron Pulley shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Iron Pulley or by third-party providers, or because of other causes beyond Iron Pulley’s reasonable control, but Iron Pulley shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Iron Pulley does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND IRON PULLEY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Each party (the “Indemnifying Party”) will defend, indemnify and hold harmless the other party, its affiliates and their respective directors, officers, employees and agents (collectively, the “Indemnified Parties”) from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) (“Claims”) arising out of or related to any breach by the Indemnifying Party of this Agreement. You also will defend, indemnify and hold harmless the Iron Pulley Indemnified Parties from any Claim arising from or related to your use of the Iron Pulley Services. When you are the Indemnifying Party, the term “Claim” shall include any and all regulatory, prosecutorial, governmental, civil or criminal inquiries, investigations or proceedings (including, without limitation, any request or demand for documents, testimony or other discovery in any investigation or lawsuit or other proceeding). The Indemnified Party will provide the Indemnifying Party with written notice of any such Claim, and will cooperate as fully as reasonably required in the defense of any Claim. The Indemnified Party will have the opportunity, in its discretion, to require the Indemnifying Party to defend or settle any such Claim at the Indemnifying Party’s expense or defend or settle any such Claim itself at its expense. The Indemnifying Party will not enter into any settlement or compromise of any such Claim without the Indemnified Party’s prior written consent.
8. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER UNDER ANY THEORY OF LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES THAT MAY BE INCURRED, INCLUDING ANY LOSS OF DATA, WHETHER OR NOT SUCH OTHER PARTY HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING. EXCEPT FOR INDEMNIFICATION OBLIGATIONS AND VIOLATIONS OF APPLICABLE LAW, NEITHER PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY FOR ANY LOSS OR DAMAGES ARISING OUT OF THIS AGREEMENT WILL EXCEED THE LESSER OF $1,200 OR TWO MONTHS OF SERVICE FEES.
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 Iron Pulley’s prior written consent. Iron Pulley may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications 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 Iron Pulley 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 [OHIO] without regard to its conflict of laws provisions. [The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Iron Pulley to serve as a reference account upon request.]