End User License Agreement 10.30.17
BY ACCEPTING AN ORDER FORM OR OTHER AGREEMENT THAT INCORPORATES THIS END USER LICENSE AGREEMENT (THE “EULA”) (THE “ORDERING DOCUMENT”), LICENSEE (AS DEFINED THEREIN) AGREES TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA. THE ORDERING DOCUMENT AND EULA TOGETHER CONSTITUTE THE AGREEMENT OF THE PARTIES AND ARE REFERRED TO COLLECTIVELY HEREIN AS THE “AGREEMENT.” IN THE EVENT OF ANY CONFLICT BETWEEN THE EULA AND AN ORDERING DOCUMENT, THE EULA SHALL GOVERN EXCEPT TO THE EXTENT A TERM IN AN ORDERING DOCUMENT IS EXPRESSLY INTENDED TO MODIFY TERM(S) OF THE EULA.
If “Licensee” includes more than one legal person, the obligations imposed upon each shall be joint and several. The act of, notice from or to, or signature of any one or more of the persons included within “Licensee” shall be binding on all such persons with respect to all rights and obligations under this Agreement, including but not limited to any renewal, extension, termination or modification of this Agreement.
“DiscoverOrg” means DiscoverOrg, LLC, a Delaware limited liability company with offices at 805 Broadway St., Suite 900, Vancouver, WA 98660, or one of its direct or indirect subsidiaries or other affiliates as stated in the Ordering Document.
Licensee and DiscoverOrg hereby agree as follows:
1. SCOPE, GRANT OF LICENSE
1.1 This Agreement governs Licensee’s access to and use of certain Licensed Materials (defined below) made available to Licensee by DiscoverOrg or any of its affiliates and Licensee’s access to and use of any DiscoverOrg Technology (defined below).
1.2 The “Licensed Materials” consist of all electronic information as described in any Ordering Document executed between the parties, which shall be published or otherwise made available by DiscoverOrg to Licensee under this Agreement. The “DiscoverOrg Technology” consists of software, websites, networks, and equipment made available or used by DiscoverOrg pursuant to this Agreement to facilitate Licensee’s access to and/or use of the Licensed Materials, including, but not limited to, DiscoverOrg’s online graphical user interface and DiscoverOrg’s Integration Tools (defined below) (collectively, the “DiscoverOrg Technology”). DiscoverOrg technology does not include and specifically excludes Third Party Applications (defined below).
1.3 Subject to the terms and conditions herein, DiscoverOrg hereby grants to Licensee a non-exclusive license to access and use the Licensed Materials and the DiscoverOrg Technology, and to provide the Licensed Materials and DiscoverOrg Technology to Authorized Users in accordance with this Agreement, during the Term of this Agreement.
1.4 Third Party Applications. “Third Party Applications” means computer software programs and other technology that are provided or made available to Licensee or Authorized Users by third parties, including those with which the DiscoverOrg Technology may interoperate, including, for example, Licensee’s CRM, marketing automation software, or sales enablement software, if any. DiscoverOrg may make available certain “Integration Tools”, which consist of DiscoverOrg Technology designed to allow Licensee to use DiscoverOrg Technology and the Licensed Materials in such a way as to interoperate with one or more Third Party Applications. DiscoverOrg is not responsible for and does not endorse any Third Party Applications or websites linked to by DiscoverOrg Technology.
1.5 Ownership of the Licensed Materials and Intellectual Property. Licensee acknowledges and agrees that, as between Licensee and DiscoverOrg, the Licensed Materials, the DiscoverOrg Technology, and any related documentation (including, without limitation, the content, layout, functions, design, appearance, trademarks, service marks, copyrights, patents, and other intellectual property comprising the Licensed Materials or DiscoverOrg Technology) are the proprietary intellectual property of DiscoverOrg, whether or not such Licensed Materials are trademarked, copyrighted, or patented. Licensee further agrees that the original and any copies of the Licensed Materials are and shall at all times be the sole and exclusive property of DiscoverOrg and Licensee agrees that Licensee will take no action in contravention of this fact. Licensee acknowledges and agrees that this Agreement does not transfer any ownership, right, title, or interest in the Licensed Materials or DiscoverOrg Technology or any part thereof beyond the license provided hereunder, and Licensee expressly disclaims and waives any and all claims to any ownership interest in any such information or materials. This includes, without limitation, any Licensed Materials that Licensee downloads, prints, saves, or incorporates into other materials. Licensee further acknowledges and agrees that the Licensed Materials, in whole or in part, are unique, special, and valuable. Subject to the limited rights expressly granted hereunder, DiscoverOrg, its affiliates and/or its licensors reserve all right, title and interest in and to the Licensed Materials and DiscoverOrg technology, including all related intellectual property rights. No rights are granted to Licensee hereunder other than as expressly set forth herein.
2. DELIVERY/ACCESS OF LICENSED MATERIALS TO LICENSEE
DiscoverOrg will make the Licensed Materials available to the Licensee in digital form via password-protected online access accessible by Licensee with usernames and passwords provided to Licensee by DiscoverOrg, or as otherwise mutually agreed by the parties.
3. FEES AND TAXES
3.1 Licensee shall pay all fees stated in the Ordering Document (the “Subscription Fee”). All Subscription Fees are due upon execution of the Ordering Document and payable on the terms set forth therein. If no payment schedule is specified, the entire amount of the Subscription Fee shall be payable within 30 days of invoice. All amounts payable by Licensee under this Agreement will be paid to DiscoverOrg without setoff or counterclaim, and without any deduction or withholding.
3.2 In the event that Licensee fails to timely make any payment of Subscription Fees, DiscoverOrg may, in its sole discretion, (i) restrict or suspend Licensee’s access to the Licensed Materials until all past-due payments are made, (ii) terminate this Agreement or (iii) accelerate the payment of Subscription Fees such that all unpaid Subscription Fees shall be immediately payable. DiscoverOrg shall have the right to charge interest at the rate of 1.5% per month (or, if less, the highest rate permitted by law) on any late payments. Restriction or suspension of Licensee’s online access to the Licensed Materials during period of non-payment shall have no effect on the Term of this Agreement nor on Licensee’s obligation to pay the Subscription Fee.
3.3 Licensee is responsible for any applicable taxes, including, without limitation, any sales, use, levies, duties, or any value added or similar taxes payable with respect to Licensee’s subscription and assessable by any local, state, provincial, federal, or foreign jurisdiction. Unless expressly specified otherwise in the Ordering Document, all fees, rates, and estimates exclude sales taxes. If DiscoverOrg believes any such tax applies to Licensee’s subscription and DiscoverOrg has a duty to collect and remit such tax, the same may be set forth on an invoice to Licensee unless Licensee provides DiscoverOrg with a valid tax exemption certificate, direct pay permit, or multi-state use certificate, and shall be paid by Licensee immediately or as provided in such invoice. Licensee shall indemnify, defend, and hold harmless DiscoverOrg and its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns against any and all actual or threatened claims, actions, or proceedings of any taxing authority arising from or related to the failure to pay taxes owed by Licensee, except to the extent that any such claims, action, or proceeding is directly caused by a failure of DiscoverOrg to remit amounts collected for such purpose from Licensee. DiscoverOrg is solely responsible for taxes based upon DiscoverOrg’s net income, assets, payroll, property, and employees.
4. AUTHORIZED USE OF LICENSED MATERIALS AND DISCOVERORG TECHNOLOGY
4.1 Authorized User. An “Authorized User” is a natural person who is an employee of Licensee and who has been identified and designated in writing by Licensee and accepted by DiscoverOrg. Licensee may designate a natural person who is not an employee of Licensee (i.e. an independent contractor) as an Authorized User only with DiscoverOrg’s prior permission and only where such person is contractually obligated to comply with Licensee’s instructions regarding the access to and use of the Licensed Materials. In the event that any Authorized User’s employment or contractual relationship upon which his or her Authorized User status is conditioned under this section terminates, such person’s authorization to access the Licensed Materials and/or any DiscoverOrg Technology shall be automatically revoked without any further action by DiscoverOrg. In the event of a termination as described in the previous sentence, Licensee shall promptly notify DiscoverOrg so that such person’s login credentials can be disabled. Licensee may reassign the Authorized User designation at any time subject to the foregoing qualification requirements. Authorized User licenses that remain inactive for more than 90 days may be deemed expired. Each Authorized User will be provided a unique username and password. Such usernames and passwords may not be shared, and may not under any circumstances be used by anyone who is not an Authorized User to gain access to the Licensed Materials. In the event that Authorized User login credentials are shared with non-Authorized Users, Licensee shall pay additional Authorized User fees as provided in the Ordering Document, due upon Licensee’s receipt of invoice. Licensee shall be responsible for compliance with the terms of this Agreement by all Authorized Users, including, without limitation, the restrictions on use and transfer of the Licensed Materials set forth herein.
4.2 Authorized Uses. Licensee shall not access or use Licensed Materials for any purpose except the sales, marketing, recruiting, or business development activities of Licensee. Licensee shall not access or use the Licensed Materials for the benefit of or on behalf of any person or entity except Licensee. Authorized uses shall be limited to the following: (i) to view the Licensed Materials; (ii) to communicate with a person identified in the Licensed Materials (each such person, a “Licensed Materials Contact”); and (iii) to download and print selected information from the Licensed Materials. Licensee shall not permit anyone who is not an Authorized User to use any username or password or otherwise access or use the Licensed Materials. Licensee shall not redistribute, sublicense, transfer, sell, offer for sale, or disclose any of the Licensed Materials to any third party. Licensee shall not incorporate any of the Licensed Materials into Licensee’s own products or services. Upon expiration or termination of this Agreement, Licensee shall cease accessing the Licensed Materials or using the Licensed Materials in any way. Licensee shall not remove, obscure, or modify any notice of copyright or other notice included in the Licensed Materials. Licensee is solely responsible for any communications between Licensee or any Authorized User and any Licensed Materials Contact. Licensee shall ensure that no Authorized User takes any action inconsistent with Licensee’s obligations under this Agreement.
4.3 Use of DiscoverOrg Technology. Licensee is permitted to use the DiscoverOrg Technology solely for the purpose of accessing and using the Licensed Materials as permitted by this Agreement. Licensee will not (i) reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from any of the DiscoverOrg Technology; (ii) reproduce, modify, create, or prepare derivative works of any of the DiscoverOrg Technology or related documentation; (iii) distribute or display any of the DiscoverOrg Technology or related documentation other than to Authorized Users; (iv) share, sell, rent, or lease or otherwise distribute access to the DiscoverOrg Technology, or use the DiscoverOrg Technology to operate any timesharing, service bureau, or similar business; (v) create any security interest in the DiscoverOrg Technology; (vi) alter, destroy, or otherwise remove any proprietary notices or labels on or embedded within or on the DiscoverOrg Technology or related documentation; or (vii) disclose the results of any DiscoverOrg Technology or program benchmark tests to any third parties without DiscoverOrg’s prior written consent. Licensee may use DiscoverOrg Technology only in accordance with this Agreement and not for the benefit of any third party unless expressly permitted herein.
4.4 Identification of Licensed Materials. Licensee shall not integrate Licensed Materials into any CRM, marketing automation, or sales enablement system for the purpose of allowing persons who are not Authorized Users to access or use the Licensed Materials. Any Licensed Materials that are downloaded and/or integrated into any CRM system must be maintained with identifying information indicating that such materials originated with DiscoverOrg by, for example, maintaining a leadsource of “DiscoverOrg.”
5. DISCOVERORG PERFORMANCE OBLIGATIONS
5.1 Access to Licensed Materials. DiscoverOrg will provide Licensee with access to DiscoverOrg’s Licensed Materials for the products and/or services specified in the Ordering Document.
5.2 Quality Guarantee. If more than 5% of the Licensed Materials Contacts are no longer employed by their listed companies, upon notice from the Licensee, DiscoverOrg shall have 30 days to correct the Licensed Materials in order to make them at least 95% accurate. If DiscoverOrg is unable to achieve 95% accuracy within 30 days, upon Licensee’s request, Licensee may terminate the Agreement and shall be entitled to a prorated refund of any prepaid fees as of the date of the original notice.
5.3 Support. DiscoverOrg will provide reasonable assistance with activation and/or installation support, including assisting with integration with Licensee’s CRM, marketing automation, or sales enablement systems, as applicable. DiscoverOrg will offer reasonable levels of continuing support to assist Licensee and Authorized Users in accessing the Licensed Materials. DiscoverOrg will make its personnel available by email, online chat, phone, or fax for feedback, problem solving, or general questions between the hours of 7:00 a.m. and 4:00 p.m. Pacific Time.
5.4 Licensee Data. “Licensee Data” means any Confidential Information of Licensee and any information regarding Licensee’s Authorized Users provided to DiscoverOrg in connection with this Agreement. DiscoverOrg will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Licensee Data, which will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Licensee Data by DiscoverOrg except (a) to perform DiscoverOrg’s obligations under this Agreement, (b) as compelled by law, or (c) as Licensee expressly permits in writing. To the extent that Licensee utilizes DiscoverOrg Technology (including any Integration Tools), DiscoverOrg will make commercially reasonable efforts consistent with its research protocols and priorities, to respond to match and clean and append requests by researching and/or verifying business contact information so submitted and supplementing the Licensed Materials. DiscoverOrg may use email deliverability data (such as email “bounce” data) accessible through Licensee’s use of DiscoverOrg Technology to improve DiscoverOrg’s database by, for example, eliminating invalid email addresses from the Licensed Materials.
6. LICENSEE PERFORMANCE OBLIGATIONS
6.1 Licensee represents, warrants, and covenants that it will not, in connection with its use and access of the Licensed Materials: (i) commit or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate law; (ii) violate, plagiarize or infringe the rights of third parties including, without limitation, copyright, trademark, patent, rights of privacy or publicity or any other proprietary right; (iii) use the Licensed Materials, or any part thereof, to harass or harm any person in any way; or (iv) disparage, defame, libel or make untrue or malicious statements about DiscoverOrg.
6.2 Identification of Authorized Users. Licensee shall identify all Authorized Users to DiscoverOrg by providing names, work email addresses, and telephone numbers.
6.3 Provision of Notice of License Terms to Authorized Users. Licensee shall provide Authorized Users with notice of the terms and conditions of the EULA including, in particular, its limitations on access to or use of the Licensed Materials.
6.4 Protection from Unauthorized Use. Licensee shall make commercially-reasonable best efforts to prevent unauthorized access to or use of the Licensed Materials. In the event of any unauthorized use of or access to the Licensed Materials, DiscoverOrg may suspend or terminate Licensee’s access to the Licensed Materials, provided that DiscoverOrg shall first provide reasonable notice to Licensee and cooperate with the Licensee to avoid recurrence of any unauthorized use of or access to the Licensed Materials.
7. TERM AND TERMINATION
7.1 Term. The Initial Term of this Agreement is specified in the Ordering Document (and, together with all periods of extension, the “Term”). On the last day of the Term, the Term will extend for a successive period equal to the length of the Initial Term, unless either party notifies the other in writing at least sixty (60) days prior to the end of the then-current Term of its intent that the Term not so extend. In the event that the Term is so extended, the Subscription Fee for the period of such extension shall equal the Subscription Fee applicable to the period of equal length immediately preceding such period of extension (the “Preceding Period”), plus (1) 10% of such fee and (2) any applied discount, shall be due upon extension of the Term, and shall be payable as invoiced. DiscoverOrg will invoice Subscription Fees for any period of extension in a manner substantially consistent with the payment schedule that applied during the Preceding Period.
7.2 Termination. Either party may terminate this Agreement immediately, without further obligation to the other party, in the event of a material breach of this Agreement by the other party that is not remedied within twenty-one (21) days after the breaching party’s receipt of written notice of such breach. Upon expiration or termination of this Agreement, Licensee acknowledges and agrees that Licensee’s access to the Licensed Materials will be automatically terminated, all passwords and individual accounts will be removed, and all information that has been uploaded into DiscoverOrg’s systems by Licensee may be destroyed. Download capability will be disabled 30 days prior to the end of the Term. Upon expiration or termination of this Agreement, Licensee agrees to destroy any and all copies of Licensed Materials and any information it has obtained from the Licensed Materials, whether in hard copy or electronic form.
Licensee hereby authorizes DiscoverOrg to use Licensee’s name and logo for its marketing efforts unless and until such authorization is revoked in writing.
9.1 “Confidential Information” of a party means such party’s: inventions, discoveries, improvements, and copyrightable material not yet patented, published, or copyrighted; special processes and methods, whether for production purposes or otherwise, and special apparatus and equipment not generally available or known to the public; current engineering research, development, design projects, research and development data, technical specifications, plans, drawings and sketches; business information such as product costs, vendor and customer lists, lists of approved components and sources, price lists, production schedules, business plans, and sales and profit or loss information not yet announced or not disclosed in any other way to the public; and any other information or knowledge not generally available to the public. “Confidential Information” does not include the Licensed Materials (which are subject to other restrictions under this Agreement) nor otherwise include business contact or firmographic information regarding third parties. All business terms of this Agreement, including, but not limited to, pricing and access, shall be considered Confidential Information of DiscoverOrg.
9.2 Each party shall keep in confidence all Confidential Information of the other party obtained prior to or during the Term of this Agreement. Without the prior written consent of the other party, neither party shall: disclose or make available such Confidential Information to any person, firm, association, or corporation, or use such Confidential Information, directly or indirectly, except for the performance of this Agreement, unless the Confidential Information (a) was known to such party (as evidenced by its written record) or was in the public domain prior to the time obtained by such party; (b) was lawfully disclosed to such party by a third party who did not receive it directly or indirectly from such party and who is under no obligation of secrecy with respect to the Confidential Information; or (c) subsequently becomes generally available to the public by publication or otherwise through no fault of such party.
9.3 The parties shall take all necessary and appropriate steps in order to ensure that its employees and subcontractors adhere to the provisions of this section.
9.4 All Confidential Information shall be returned to the disclosing party or destroyed upon the earlier of: (a) the termination of this Agreement; or (b) receipt by the receiving party of a written request from the disclosing party.
Either party hereto may assign this Agreement to a successor-in-interest pursuant to an acquisition of such party (whether by merger, stock sale, or asset sale) without the other party’s consent, provided however that (1) Licensee’s assignment hereof shall be effective only after fourteen (14) days’ written notice to DiscoverOrg, and (2) Licensee may not assign this agreement to any competitor of DiscoverOrg without DiscoverOrg’s express written consent. No rights or obligations under this Agreement may be assigned or delegated except as provided in this Section without the prior written consent of the other party, and any assignment or delegation in violation of this section shall be void.
Licensee shall provide an email address for notices under this Agreement. All notices or other communications permitted or required to be given hereunder shall be sent by electronic mail to the email address provided by the other party for such purpose and shall be deemed given when sent. Notices to DiscoverOrg shall be sent to [email protected] In the event that Licensee fails to provide an email address for notices, DiscoverOrg may provide notices hereunder by any means reasonably calculated to provide Licensee with actual notice thereof.
12. GOVERNING LAW
This Agreement shall be construed in accordance with and governed for all purposes by the laws of the State of Washington without regard to choice of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the foregoing, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).
13. ATTORNEY FEES, DISPUTE RESOLUTION, CLASS ACTION WAIVER
13.1 Attorney Fees. In the event of any dispute arising under this agreement, the prevailing party shall be entitled to recover its reasonable costs and expenses actually incurred in endeavoring to enforce the terms of this Agreement, including reasonable attorney fees.
13.2 Mandatory Arbitration. Except for Litigation Claims (defined below), any dispute, claim, or controversy arising out of or relating to this Agreement, including without limitation (1) claims relating to the breach, termination, enforcement, interpretation or validity thereof, (2) claims alleging tortious conduct (including negligence) in connection with the negotiation, execution, or performance thereof, or (3) the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. The arbitration shall be heard by a single arbitrator and shall be conducted in Seattle, Washington. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator shall have the power to award any remedy provided under applicable law, except that the arbitrator shall have no power to award: (1) punitive, exemplary, or multiple damages under any legal theory; (2) mandatory or prohibitory injunctive relief, except for temporary relief in aid of the arbitration or to secure the payment of an award; or (3) any damages in excess of the limits set forth in this section or Section 16 (Limitation on Liability) of this Agreement.
13.3 Class Action Waiver. No party shall commence or seek to prosecute or defend any dispute, controversy, or claim based on any legal theory arising out of or relating to this Agreement, or the breach thereof, other than on an individual, non-class, non-collective action basis. No party shall seek to prosecute or defend any dispute, controversy, or claim arising out of relating to this Agreement, or the breach thereof, in a representative or private attorney general capacity. The arbitrator shall not have the power to consolidate any arbitration under this Agreement with any other arbitration, absent agreement of all parties involved, or otherwise to deal with any matter on a non-individual, class, collective, representative, or private attorney general basis.
13.4 Litigation Claims. The following claims (“Litigation Claims”) shall be litigated and not arbitrated: (a) claims against a party to this Agreement under the provisions involving claims by third parties; (b) claims by a party for the unauthorized use, or the misuse, by the other party of the first party’s intellectual property or confidential, proprietary, or sensitive information; (c) claims by DiscoverOrg to collect Subscription Fees; and (d) claims for a provisional remedy (such as a temporary restraining order or preliminary injunction) in aid of an arbitration under this Agreement. The Litigation Claims are not subject to arbitration and are expressly excluded by the parties from arbitration.
All monetary amounts specified in this Agreement are in United States dollars unless otherwise expressly stated.
15.1 Licensee agrees to indemnify, defend, and hold harmless DiscoverOrg and its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns from and against any and all actual or threatened claims of third parties arising out of or in connection with (1) Licensee’s access or use of the Licensed Materials in violation of any law, (2) Licensee’s violation of any provision of this Agreement, (3) Licensee’s sending of any information, messages, or materials to any Licensed Materials Contact (including, but not limited to, through e-mail, mail, or fax) in violation of any law or the rights of any third party, or (4) the use of any Licensed Materials or DiscoverOrg Technology by any third party to whom Licensee has granted access (including access obtained through use of the usernames and passwords assigned to Licensee and its personnel).
15.2 DiscoverOrg shall indemnify Licensee for any damages finally awarded by any court of competent jurisdiction against Licensee in, or for amounts paid by Licensee under a settlement approved by DiscoverOrg in writing of, any legal proceeding brought by a third party alleging that the Licensed Materials or DiscoverOrg Technology infringes upon or violates the intellectual property rights of any such third party.
15.3 As a condition to any right to indemnification under this agreement, the indemnified party must (a) promptly give the indemnifying party written notice of the claim or proceeding, (b) give the indemnifying party sole control of the defense and settlement of the claim or proceeding (except that the indemnifying party may not settle any claim or proceeding unless it unconditionally releases the indemnified party of all liability), and (c) give the indemnifying party all reasonable assistance, at the indemnifying party’s expense. This section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any claim or proceeding subject to indemnification hereunder.
16. LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR INSTANCES OF GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE, EXEMPLARY, MULTIPLE, INDIRECT, CONSEQUENTIAL, SPECIAL, OR LOST PROFITS DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER FORESEEABLE OR UNFORSEEABLE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR ANY UNCURED BREACH BY DISCOVERORG OF ITS OBLIGATIONS UNDER THIS AGREEMENT IS TERMINATION BY WRITTEN NOTICE TO DISCOVERORG, AND REFUND OF A PRORATED PORTION OF THE SUBSCRIPTION FEES THAT LICENSEE HAS PAID. DISCOVERORG’S MAXIMUM LIABILITY TO LICENSEE SHALL BE THE AMOUNTS ACTUALLY PAID TO DISCOVERORG BY LICENSEE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LICENSEE’S CAUSE OF ACTION. EXCEPTING LIABILITY ARISING FROM LICENSEE’S OR ITS AGENT’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, LICENSEE’S MAXIMUM LIABILITY TO DISCOVERORG HEREUNDER SHALL BE TWO TIMES (2X) THE AMOUNT OF THE SUBSCRIPTION FEE.
EXCEPT FOR ANY EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS EULA, THE LICENSED MATERIALS AND DISCOVERORG TECHNOLOGY ARE PROVIDED “AS IS” AND NEITHER PARTY MAKES ANY 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 AND EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY.
18. ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement of the parties and supersedes all prior communications, understandings, and agreements relating to the subject matter hereof, whether oral or written. Any un-expired subscription set forth in any Ordering Document or agreement between the parties for access to DiscoverOrg’s database is incorporated into this Agreement and governed by this EULA.
DiscoverOrg may propose amendments to this Agreement at any time by providing notice of such proposed amendments in a manner permitted hereunder. Such proposed amendments shall be deemed accepted and become part of this Agreement thirty (30) days after the date such notice is given unless Licensee informs DiscoverOrg that it does not accept such amendments. In the event Licensee informs DiscoverOrg that it does not accept the proposed amendments, the proposed amendments will not take effect and the existing terms will continue in full force and effect. No other modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of DiscoverOrg and Licensee.
Licensee acknowledges that the unauthorized disclosure of DiscoverOrg Confidential Information or Licensed Materials may cause harm to DiscoverOrg for which there is no adequate remedy at law and that DiscoverOrg shall be entitled to seek equitable relief to prevent further disclosure, in addition to monetary damages and such other relief as a court may determine is appropriate. Unless expressly stated herein, no remedy of DiscoverOrg is intended to be, nor shall be construed as, an exclusive remedy and DiscoverOrg shall retain whatever additional rights or remedies it may have at law or in equity.
21. FORCE MAJEURE.
Neither DiscoverOrg nor any of its affiliates will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including, but not limited to, acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.