Master Subscription Terms and Conditions
1.1. “Admin User” means the User provided the ability to administer the User subscriptions, enabling and disenabling access to the application.
1.2. “Affiliate” means any company, corporation, general or limited partnership, limited liability company, joint venture, organization, association, or other enterprise or entity in which a party directly, or indirectly through one or more intermediaries, has an ownership interest (whether arising from ownership of stock or other voting securities, contractual relationship, or otherwise) or any entity controlling or under common control with any such entity.
1.3. “Applicable Law” means any local, state, national, administrative and/or foreign laws, treaties, regulations and/or orders applicable to a Party.
1.4. “Client Content” means material, information, records, and/or documents uploaded by Client in, or transferred by, Client through the SaaS.
1.5. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally, visually, or in writing, outside of the SaaS, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Fusion Confidential Information includes the Services (including all Documentation); and Confidential Information of each Party includes the terms and conditions of this Agreement (including pricing), and each SO and SOW, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party.
1.6. “Consulting Services” means the technical, configuration, and/or advisory services provided or to be provided by Fusion for Client under a SOW, issued pursuant to this Agreement, describing such consultant-performed services.
1.7. “Documentation” means any user manuals, technical manuals, or training manuals, whether in paper or electronic form, provided by Fusion concerning the SaaS, as updated, amended, and/or replaced by Fusion from time-to-time.
1.8. “Highly Regulated Information” or “HRI” means an individual’s protected health information (“PHI” as defined in HIPPA) or biometric data; an individual’s financial information or credit history, including account number for a credit card, debit card or bank account; any sensitive data as defined in UK GDPR or GDPR; sensitive personal information as defined in CPRA; or any other highly protected personal information that is not business contact information, including but not limited to: birth date, social security number or other government issued identification number.
1.9. “Intellectual Property Rights” means copyrights (including the right to copy, modify, distribute, display, perform and create derivative works from the work), trademarks (including trademark, service marks), patents (including the exclusive right to make, use and sell), trade secrets, trade names, rights of publicity, rights of privacy, and all other intellectual property rights.
1.10. “Personnel” means employees, subcontractors, agents of a Party.
1.11. “SaaS” means the Platform and the Fusion Framework (defined in Section 2.1) as it relates to Client, together with specifically the User subscriptions as stated in the applicable SO(s).
1.12. “Services” means Fusion providing access to the SaaS and performing the Consulting Services.
1.13. “Service Order” or “SO” means the written transactional document executed by the parties listing the SaaS subscriptions purchased by Client.
1.14. “Statement of Work” or “SOW” means the written transactional document executed by the Parties describing the Consulting Services purchased by Client.
2.1. Description. The Fusion Framework® is a multi-tenant SaaS application providing operational resilience functionality for Client’s internal business purposes (the “Fusion Framework”). Fusion is contractually a “value added reseller” of Salesforce.com (“Salesforce”). The Fusion Framework is a “combined solution” of the Salesforce Lightning platform (the “Platform”) and the Fusion Framework. As a “combined solution” the Fusion Framework is built on the Platform and hosted within Salesforce owned (or leased) data centers (hereafter, the combined solution of the Fusion Framework and the Platform shall be referred to as the “SaaS”). The data centers are geographically remote primary and back-up instances with near real-time replication between them. Each instance of the SaaS is hosted on a logically separated point-of-deployment (or “POD”). Fusion will provide subscriptions to the SaaS as described in a SO, each issued pursuant to this Agreement and each SO a separate transaction. The geographic service location (e.g., US, UK, EU, etc.) will be determined by the Client and stated on the SO. Fusion will not change the geographic service location during the SO Term or after such term. The Platform, including Platform availability and Updates, is managed entirely by Salesforce. The Fusion Framework is managed entirely by Fusion. The license to the SaaS is a “seat license” limited to the number of Users stated on the SO. The only personally identifiable information (“PII”) needed for use of the SaaS is business contact information of employees, contractors and agents and Client shall not insert any other PII into the SaaS. All revisions, updates, upgrades, patches, and modifications (collectively, “Updates”) are made simultaneously to all of Fusion’s customers and Client agrees that the development, release and timing of any Updates to the Platform is controlled by Salesforce and to the Application is controlled by Fusion. The service level agreement relating to the SaaS are stated on Attachment A, attached hereto and incorporated herein.
2.2. Grant of License. Subject to Client’s compliance with the terms and conditions of this Agreement, and the scope of use described in the corresponding SO, Fusion will make the SaaS available to Client and its Users during the SO Term, during which, Fusion grants Client a limited, worldwide (subject to Applicable Laws), non-exclusive, non-transferable, non-sublicensable right to access and use the SaaS, solely for the internal business purposes of Client. Client acknowledges that there are no additional licenses granted by implication under this Agreement and no rights are granted to Client hereunder other than as expressly set forth herein.
2.3. License Restrictions. Client shall not and shall ensure that none of its Users do any of the following: (1) copy or create any derivative works based on the SaaS; (2) license, sublicense, sell, resell, rent, lease, transfer, assign, commercially exploit, or otherwise transfer or make the SaaS or the Documentation available to any third-party or act as a service bureau or provider of application services to any third-party; (3) provide access to the SaaS to a User who is a direct competitor of Fusion; (4) engage in any benchmarking or other competitive purposes; (5) use the SaaS in violation of Applicable Law or in a way that infringes any Intellectual Property Rights of Fusion or a third party; (6) use the SaaS in any manner that is inconsistent with the terms of this Agreement, the applicable SO, or the Documentation, including sending or storing any malicious code in the SaaS; or (7) upload, make accessible, or provide to Fusion any HRI, or any personally identifiable information regarding Client’s clients (and Client will remove such HRI or personally identifiable information immediately if uploaded or provided to Fusion).
2.4. Access. Client accesses the SaaS via a web browser in its environment connecting to the Salesforce data center. Access to the SaaS is controlled by password. Client establishes, implements and controls the password policy. Client’s Admin Users will provide its Users with unique usernames and Client’s Users establish the password. Client agrees that User subscriptions cannot be shared or used by more than one User (but may be reassigned from time-to-time to new Users who are replacing former Users who no longer require use of the SaaS). Client is responsible for the use of its User’s passwords and usernames and will implement and use industry standard measures to maintain the security and confidentiality of User passwords. If Client provides Users who are Affiliates of Client with access to the SaaS, then the term “Client” shall also include such Client Affiliate(s). Client shall be responsible for the acts and omissions of all Users in their use of the SaaS. Fusion will not be liable to the extent any unauthorized access to the SaaS is obtained because of Client’s improper administration of User access.
2.5. Security; Third-party Audits. Fusion shall during the Agreement Term maintain security practices designed to ensure there is no unauthorized access to, nor destruction, loss, corruption, misuse or improper alteration of Client Content. Fusion shall, upon request, provide a copy of its then-current SOC-2 Type 2 report, covering its corporate functions and the development of the SaaS; for the Platform, Client shall receive all of Salesforce’s standard security protections (set forth in the Salesforce’s Security, Privacy and Architecture or “SPARC” document: https://www.salesforce.com/content/dam/web/en_us/www/documents/legal/misc/messaging-security-privacy-and-architecture.pdf) (collectively, the “Security Measures”). Copies of Salesforce’s third-party audits can be found on Salesforce’s compliance website (www.compliance.salesforce.com).
3. Consulting Services.
3.1. Provision; Subcontractors. Fusion will provide Consulting Services to Client as described in each SOW, each issued pursuant to this Agreement and each a separate transaction. Fusion will not be responsible for providing any services, tasks, and/or items that are not included in the SOW, unless separately agreed upon in an executed change order. Fusion reserves the right, in its sole discretion, to use, assign and remove Personnel performing the Consulting Services. Fusion may retain the services of subcontractor(s) to perform a portion or all of the Consulting Services. Each such subcontractor shall work at the direction of Fusion and be contractually bound to the terms of this Agreement (i.e., the terms of this Agreement shall flow-down to the subcontractor). Fusion shall remain fully liable for the acts or omissions of each such subcontractor.
3.2. Deliverables. Upon payment of applicable fees, Fusion hereby grants to Client a non-exclusive, worldwide (subject to Applicable Law), license to use the Deliverables only on the terms and for the same period of time as Client’s authorized use of the SaaS. No Deliverable shall be deemed a “work made for hire” (as defined in 17 U.S.C. § 101). “Deliverables” means the property, reports, analyses, recommendations, and other materials provided, created, developed, and/or delivered pursuant to and defined in a SOW. Such rights shall not be sub-licensable, assignable, or transferable, except in connection with Client’s assignment of this Agreement.
3.3. Client Assistance. Client agrees to provide prompt assistance, cooperation, information, data, and resources reasonably necessary to enable Fusion to perform the Consulting Services and any other responsibilities designated thereunder. Client acknowledges that Fusion is relying upon information (including, data, specifications, and descriptions) provided by Client. As a result, the accuracy and results of the Consulting Services are dependent upon the timeliness, accuracy, and completeness of the information furnished to Fusion by Client. Fusion’s obligations to provide the Consulting Services are conditioned upon Client’s cooperation and timely: (i) performance of tasks and responsibilities stated in the SOW (including any project plans developed thereunder); (ii) provision of approvals and information under the applicable SOW; and (iii) access to Client’s Personnel reasonably required for Fusion to perform the Consulting Services. Delays due to Client’s failure to satisfy or comply with its obligations in (i) – (iii) above or any other responsibilities designated in a SOW may result in delays in the provision of the Consulting Services and additional fees.
4.1. SaaS Warranties. Fusion warrants that during the applicable SO Term: (1) the SaaS shall be performed materially in accordance with the Documentation, and (2) the functionality of the SaaS and the Security Measures will not materially decrease; provided, however, that Fusion will have no obligation to the extent that a breach of the foregoing arises from or relates to: (1) any modification of the SaaS not made or authorized in writing by Fusion; or (2) use of the SaaS in an unauthorized manner or any manner inconsistent with the Documentation. For any breach of this warranty, Client’s exclusive remedy shall be, at Fusion’s option, either (1) termination of the relevant SO and a pro-rata refund of the prepaid subscription fees paid by Client for such defective SaaS, or (2) repair of the SaaS in a manner that conforms to the Documentation.
4.2. Consulting Services Warranties. Fusion warrants that the Consulting Services will be performed in a professional and workmanlike manner in accordance with industry standards by qualified Personnel with suitable training, experience, and skills to perform the Consulting Services. In the event Client gives Fusion written notice of Fusion’s failure to comply with this warranty within ten days of Fusion providing such non-conforming Consulting Services, then Fusion shall, at no additional charge, use commercially reasonable efforts to re-perform the Consulting Services to correct the nonconformity.
4.3. Mutual Warranties. Each Party warrants to the other that it: (1) has the authority to enter into this Agreement and each SO or SOW; (2) is a properly incorporated organization in good standing in the state or country where it is formed; (3) shall comply with Applicable Law with respect to the performance of its obligations hereunder; (4) possesses the right, title, and interest for the intellectual property required to execute its obligations hereunder; and (5) shall not copy, modify or creative derivative works based on the Intellectual Property Rights of the other Party unless expressly authorized herein.
4.4. Mutual Disclaimer. EACH PARTY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING BY CUSTOM, COURSE OF DEALING, OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE. NO REPRESENTATION THAT IS NOT SPECIFICALLY CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY EITHER PARTY. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND FUSION DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED.
5. Proprietary Rights.
5.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Fusion and its licensors reserve and retain all of its and their respective right, title, and interest in and to the Services, Documentation, Deliverable, and Usage Data, including all Intellectual Property Rights therein. All inventions, improvements, developments or innovations made, conceived or devised by Fusion in the course of providing any Services as well as any Usage Data are the sole and exclusive property of Fusion, including all rights to patents, copyrights, trademarks and trade secrets, except that portion, if any, which is comprised of Client Content or Client’s Confidential Information. “Usage Data” means information, data and other content that is derived by or through the SaaS from processing Client Content and is sufficiently different from such Client Content that such Client Content cannot be reverse engineered or otherwise identified from the inspection, analysis or further processing of such information, data or content.
5.2. Client Content. Client owns all right, title, and interest in and to all Client Content. Subject to the terms of this Agreement, Client grants Fusion and its Affiliates a worldwide, limited, non-exclusive, non-transferable (except as set forth in “Assignment” herein) right to use, transmit and display Client Content solely to provide Client the Services. Client shall have sole responsibility for the collection, accuracy, quality, legality, and use rights of all Client Content. Client agrees that the license to Client Content survives the termination of a SO solely for the purpose of storing backup Client Content at an offsite storage facility and only as long as required by Salesforce’s data backup and destruction protocols.
6. Term; Termination.
6.1. Term. The term of this Agreement commences on the Effective Date and remains in effect until terminated pursuant to the provisions herein (the “Agreement Term”). The initial subscription term for any SO shall commence on the date stated in the applicable SO, and unless terminated earlier pursuant to the terms of this Agreement, shall continue for the term set forth therein (the “Initial Subscription Term”). The SO will automatically renew for a duration equal to the Initial Subscription Term (a “Renewal Subscription Term” and, together with the Initial Subscription Term, the “SO Term”), unless either Party gives the other Party written notice of non-renewal at least 75 days prior to the expiration of the then-current SO Term. The term of each SOW shall continue for the period set forth in that particular SOW, and, if no period is provided, upon Fusion’s completion of the Consulting Services described therein (the “SOW Term”).
6.2. Termination. Either Party may terminate the affected SO or SOW upon 30 days prior written notice to the other Party of a material breach by the other Party if such breach remains uncured at the expiration of such 30-day notice period. Either Party may terminate for cause immediately upon written notice to the other Party if the institution of bankruptcy, receivership, insolvency, reorganization or other similar proceedings filed by or against a Party pursuant to the bankruptcy code under Applicable Law, if such proceedings have not been dismissed or discharged within 30 calendar days after they are instituted; the insolvency or making of an assignment for the benefit of creditors; the institution of any reorganization arrangement or other readjustment of debt plan of a Party not involving the bankruptcy code; or any corporate action taken by the board of directors of a Party in furtherance of any of the above actions. Notwithstanding any terms to the contrary in this Agreement, if any amounts owed by Client (except for any Disputed Fees then in dispute) are not fully-paid when due in accordance with the “Fees and Payment” section herein, Client shall be in material breach of this Agreement and, in addition to its other rights and remedies at law or in equity, Fusion may terminate this Agreement and cease providing all Services, effective immediately upon delivery of written notice to Client. Upon any termination of this Agreement or any SO or SOW hereunder, Client shall, as of the date of such termination, cease accessing and otherwise utilizing the applicable Services. If Fusion terminates this Agreement or any SO or SOW hereunder for Client’s uncured material breach, all fees under such SO or SOW shall become immediately due and payable within ten days of the effective date of termination.
6.3. Handling of Client Content Upon Expiration or Termination. Client may retrieve Client Content from the SaaS at any time prior to expiration or termination of an SO. Upon expiration or termination, Fusion will immediately deactivate Client’s access to the SaaS. Client Content will remain available for 30 days after expiration or termination of the SO, after which it is no longer available. If Fusion receives a written request from Client within such 30-day period, then Fusion shall request a copy of the Client Content from Salesforce and return such data in .csv form. For more information on Salesforce Client Content deletion policy, please see https://www.salesforce.com/content/dam/web/en_us/www/documents/legal/misc/salesforce-security-privacy-and-architecture.pdf. With respect to each Party’s Confidential Information, upon receipt of a written request from the other Party within 30 days after any expiration or termination of this Agreement, each Party will promptly return the other Party’s Confidential Information or destroy such Confidential Information in all forms and types of media and provide written confirmation of such destruction.
7. Fees and Payment.
7.1. Fees. Client shall pay the fees, applicable taxes and expenses as set forth in the applicable SO or SOW, as quoted and payable in the currency stated. Fusion shall invoice for fees due under a SO annually in advance during the SO Term. After the first twelve months, Fusion may on each Anniversary Date, within the SO Term, modify the amount of fees; provided, however, that such annual increase shall not be greater than the consumer price index (“CPI”), during the preceding twelve-month, period plus six percent. For Consulting Services, Fusion shall invoice for fees due pursuant to the schedule stated in the SOW. Unless otherwise stated in the applicable SO or SOW, all invoiced fees shall be paid within 30 days from the invoice date. Without limiting the rights and remedies available to Fusion under this Agreement or by Applicable Law, any undisputed fees not paid by Client within 30 days of the invoice date shall accrue late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by Applicable Law, whichever is greater, from the date such payment was due until the date paid, plus all reasonable expenses and fees of collection (including attorneys’ fees and court and administrative costs).
7.2. Taxes. Fees are exclusive of all applicable federal, state and local sales, value-added, goods and services, use, excise, transaction, gross receipts, or similar taxes imposed on the Services (collectively, “Taxes”), which Client agrees to pay, excluding taxes assessable against Fusion on its income, property and employees. Client shall make all payments required without deduction of any Taxes, except as required by Applicable Law, in which case the amount payable shall be increased as necessary so that after making any required deductions and withholdings, Fusion receives and retains an amount equal to the amount it would have received had no such deductions or withholdings been made. If Client is exempt from paying any applicable Taxes, Client shall promptly provide written evidence reasonably satisfactory to Fusion of its tax-exempt status, and Fusion will not include such Taxes in Client’s invoices.
7.3. Suspension of Services for Non-Payment. If Client’s account is more than 30 days past due, Fusion may declare Client in material breach or, in Fusion’s sole discretion, provide written notice to Client of payment default and provide Client ten days from receipt of such notice to cure the past due condition of its account. If Client has not cured such payment default within such time, in addition to any other rights or remedies it may have under this Agreement or by Applicable Law, Fusion reserves the right to suspend the Services without any liability for such suspension, and such Services shall only be resumed if Fusion receives all outstanding fees. The SO Term will remain unchanged notwithstanding any suspension of access to the SaaS. Timelines applicable to Fusion’s performance of Consulting Services shall be proportionately tolled for any period of inactivity resulting from suspension under this section.
7.4. Billing Disputes. Any dispute involving invoiced fees must be in writing and submitted to Fusion within ten days of the invoice date and include a reasonably detailed statement describing the nature and amount of the disputed fees as well as the reasonable and good faith basis for why a credit or refund is being requested. Client shall cooperate with Fusion to promptly address and attempt to resolve any billing dispute. Client acknowledges and agrees that in the event Client does not submit a billing dispute notice in accordance with the foregoing, Client waives all rights to dispute such invoice and all fees set forth in such invoice will be considered due by Client. Notwithstanding any dispute of invoiced fees commenced in accordance with this section, Client shall remain obligated to pay all undisputed fees due and owing as set forth in “Fees and Payment” herein.
8.1. Confidential Information; Exceptions. Each Party may disclose Confidential Information to the other during the Agreement Term. Confidential Information does not include any information that: (1) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (2) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (3) is received from a third-party without breach of any obligation owed to the Disclosing Party; or (4) was independently developed by the Receiving Party without access to or use of the Disclosing Party’s Confidential Information.
8.2. Protection. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (1) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (2) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ Personnel who need access to the Confidential Information for purposes consistent with this Agreement containing protections, or have ethical duties to the Receiving Party, not materially less protective of the Confidential Information than those herein. Each Party shall be and remain fully liable and responsible for its Representatives’ unauthorized disclosure or use of the other Party’s Confidential Information.
8.3. Compelled Disclosure; Retention; Injunctive Relief. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by Applicable Law, or by and order of a court of competent jurisdiction. The Receiving Party may disclose such Confidential Information, provided the Receiving Party gives the Disclosing Party prior written notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure or limit the extent of the disclosure through a protective order or other legal measure. Notwithstanding anything to the contrary contained herein and provided the obligations of this “Confidentiality” section will continue to apply for the period such Confidential Information is retained, Receiving Party: (1) will be entitled to retain copies of Confidential Information for internal record keeping purposes and compliance with Applicable Law and industry standards or for the purposes of defending or maintaining litigation; and (2) will not be obligated to erase Confidential Information that is contained in its archived data storage. For the avoidance of doubt, the term “Confidential Information” applies to information outside of the SaaS and thus Fusion shall have no right to either (1) retain copies of Client Content, or (2) archive the Client Content in data storage. Receiving Party acknowledges that a breach of this “Confidentiality” section could cause Disclosing Party irreparable harm and significant injury, which may be difficult to ascertain; accordingly, the Receiving Party agrees that Disclosing Party will have the right to pursue any and all rights and remedies available at law and equity for such breach.
Fusion will maintain, at its own expense, during the Agreement Term insurance covering its operations in the following minimum amounts: (1) Commercial General Liability Insurance, including broad form property damage, and personal injury with a limit of not less than $1,000,000 per occurrence and $2,000,000 general aggregate; (2) Business Automobile Liability Insurance for all, non-owned, and hired vehicles to be used in connection with this Agreement, with a combined single limit of at least $1,000,000 each accident; (3) Workers’ Compensation including $1,000,000 Employers Liability coverage; (4) Umbrella (Excess) Liability Insurance coverage in an amount of not less than $4,000,000 per occurrence; (5) Property Insurance against all risks of physical loss or damage to any property of Client in the care, custody, or control of Fusion; (6) Technology Errors and Omissions in the amount of $3,000,000 per claim and $4,000,000 in the aggregate, including coverage for network security liability and privacy liability; and (7) Crime Insurance, including Employee Dishonesty and Client Property (third-party) coverage in the amount of not less than $1,000,000. Client will maintain, at its own expense, commercial general liability insurance with limits consistent with industry standards against any claims for death, bodily injury and damage to real and tangible personal property damage for its employees and any property that it owns or leases or otherwise controls. Each Party agrees to furnish evidence of insurance coverage upon the reasonable written request of the other Party.
10.1. Indemnification by Fusion. Fusion will indemnify Client and its officers, and directors (the “Client Indemnified Parties”) from any losses, liabilities, damages, costs, and expenses, including award of reasonable attorneys’ fees (collectively, “Losses”) arising from any third-party claims, demands, or actions (collectively, “Claims”) which are finally awarded against Client Indemnified Parties, for (1) breach of Applicable Law, or (2) bodily injury (including death) or damage to tangible property to the extent caused by Fusion.
10.2. Intellectual Property Indemnification. Fusion will indemnify Client against any judgment finally awarded against Client for Claims brought under Applicable Law based on a finding that Client’s use of the Services infringes the Intellectual Property Rights of a third-party; provided, however, that Fusion will have no indemnification obligation to the extent any such infringement: (1) relates to or is caused by use of the Services in combination with any other software, data (including Client Content), product, process, or material not provided by Fusion, and the infringement would not have occurred but for the combination; (2) arises from or relates to any modification of the SaaS not made or authorized in writing by Fusion; (3) use of the Services in violation of Applicable Law; or (4) where Client continues the activity or use constituting or contributing to the infringement after notification by Fusion. If (i) Client is enjoined from using the Services; or (ii) the Services become, or Fusion believes the Services are likely to become, the subject of an infringement claim, then Fusion shall have the right, in its sole discretion, to: (a) obtain for Client the right to continue use of the Services; or (b) replace or modify the Services so that they are no longer infringing. If neither of the foregoing options is reasonably available to or commercially feasible for Fusion, then Fusion, in its sole discretion, may terminate the affected SO and Fusion’s sole liability shall be to provide Client a pro-rata refund of any prepaid fees attributable to the access to the SaaS that was to be provided after the effective date of termination. This section sets forth Fusion’s sole liability and Client’s sole and exclusive remedy with respect to any claim of intellectual property infringement.
10.3. Indemnification by Client. Client will indemnify and defend Fusion, and Fusion Affiliates and its and their officers, directors, and Personnel (the “Fusion Indemnified Parties”) from and against any and all Losses arising from Claims, to the extent arising from or related to: (1) any allegation that any Client Content infringes or misappropriates any Intellectual Property Right of any third-party; (2) breach of Applicable Law; or (3) bodily injury (including death) or damage to tangible property to the extent caused by Client.
10.4. Indemnification Procedure. The Party seeking indemnification under this section “Indemnification” (the “Indemnified Party”) shall: (1) provide prompt written notice of the Claim to the proposed indemnifier (the “Indemnifying Party”); (2) cooperate with the Indemnifying Party, at the Indemnifying Party’s expense, in the defense of such Claim; and (3) give the Indemnifying Party the right to control the defense and settlement of such Claim, except that the Indemnifying Party shall not enter into any settlement that affects the Indemnified Party’s rights or interest without the Indemnified Party’s prior written approval. The Indemnified Party shall have the right to participate in the defense and retain its own legal counsel at its own expense.
11. Limitation of Liability; Exclusion.
EXCEPT FOR A PARTY’S OBLIGATIONS ARISING UNDER SECTIONS ENTITLED “CONFIDENTIALITY” AND “INDEMNIFICATION,” WHICH SHALL BE CAPPED AT $1,000,000, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING ALL SO(s) AND SOW(s)), WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID OR PAYABLE BY CLIENT FOR THE SO OR SOW, WHICH GAVE RISE TO THE LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, LOST PROFITS, LOST REVENUE, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY KIND OR NATURE HOWSOEVER CAUSED, OR FOR ANY LOSS OF BUSINESS, REVENUE, AND/OR LOSS OR CORRUPTION OF ANY DATA AND/OR COST OF DATA RECONSTRUCTION OR PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS OR SERVICES, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR UNDER ANY OTHER THEORY OF LIABILITY, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. THE LIMITED REMEDIES SET FORTH IN THIS AGREEMENT SHALL SURVIVE AND SHALL APPLY EVEN IF THE LIMITED REMEDIES ARE FOUND TO HAVE FAILED IN THEIR ESSENTIAL PURPOSE.
12. General Provisions.
12.1. Relationship of the Parties; Assignment. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this Agreement in its entirety (together with all SOs and SOWs), without the other Party’s consent to: (1) an Affiliate; or (2) a successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided in either case that the assignee agrees in writing to be bound by all the terms of this Agreement. Any other assignment shall be null and void.
12.2. Force Majeure. Neither Party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to a Force Majeure Event. “Force Majeure Event” means any circumstances or events beyond a Party’s reasonable control, including, but not limited to, acts of God, acts of government, flood, fire, earthquakes, hurricanes, tornadoes, epidemic/pandemic, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such Party’s employees or contractors), service disruptions involving hardware, software, or power systems not within such Party’s possession or reasonable control, internet service or telecommunications’ carrier failure or delay, denial of service attacks, or any other similar event outside of a Party’s reasonable control. A Force Majeure Event does not include economic hardship. The Party unable to perform as a result of a Force Majeure Event shall take all reasonable steps to recommence performance.
12.3. Export and OFAC Compliance. The Services, and other technology Fusion makes available, and derivatives thereof, may be subject to Applicable Laws and regulations of the United States and other jurisdictions. Each Party represents that neither it nor any of its employees is: (1) a person or entity with whom U.S. entities are restricted from doing business under regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order or other governmental action; or (2) named on any U.S. government denied-party list. Client shall not permit Users to access or use any of the Services in a U.S. embargoed country or in violation of any U.S. export law or regulation.
12.4. Governing Law; Venue. This Agreement and any claim, controversy, right, obligation or dispute arising under or related to this Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, US, without regard to conflicts of laws principles. The Parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The Parties irrevocably consent to the exclusive jurisdiction and venue of the state and federal courts in the county of Cook, state of Illinois. The Parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. Neither Party shall bring any action against the other Party arising out of or related to this Agreement more than one year after the occurrence of the event which gave rise to such action.
12.5. Notices. Any notice required or permitted by this Agreement shall be given to the recipient in writing by mail, hand delivery or telecopy to the address set forth in the preamble or to such other address as the recipient may designate by written notice, with a copy to Fusion at Legal@FusionRM.com. Further, Fusion may send operational notices related to the Services provided hereunder by electronic mail to Client at the address set forth in the preamble. Any such notice shall be deemed to be received on the date delivered, telecopied or e-mailed, or five days after its deposit in the United States mail, first class postage prepaid.
12.6. Order of Precedence. In the event of any conflict or inconsistency between the following documents, the order of precedence shall be: (1) the SO and/or SOW; (2) this Agreement; and (3) the Documentation. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted. However, in the event of a conflict between the provisions of this Agreement and any SO and/or SOW, the provisions of this Agreement will supersede and govern, except in instances when the SO and/or SOW expressly identifies a particular section of this Agreement and expressly states that the SO and/or SOW should supersede and govern any conflict with that particular section in that instance.
12.7. Publicity. Client agrees to the use of its name and logo in Fusion marketing materials including but not limited to Fusion’s website, marketing collateral, press release, social media posts, and case studies, and agrees to provide references or testimonials. Use of Client’s name and logo shall be pursuant to Client’s brand policy guide, which shall be provided to Marketing@FusionRM.com.
12.8. Data Privacy Laws. To the extent that in the provision of the Services hereunder, Fusion processes any PII that is subject to data privacy laws, the definition of Applicable Law shall be limited to the data privacy laws of the United States (including those of the individual states), the United Kingdom, Canada, and the European Union. Client acknowledges in all cases that Fusion acts as the “data processor” and Client is the “data controller” for all Client Content, as such terms are defined under such data privacy laws. Client will obtain and maintain any required consents necessary to permit the processing of Client Content and all PII therein. If Client uploads HRI into the SaaS, contrary to the terms of this Agreement, the HRI shall be treated as Client Content, but Fusion shall have no further obligations relating to such HRI, including but not limited to for notifications relating to such HRI.
12.9. Entire Agreement; Interpretation. This Agreement is the entire agreement between Client and Fusion regarding Client’s use of the Services and supersedes and merges all prior and contemporaneous, written or oral, agreements, understandings, proposals, marketing materials and representations concerning its subject matter and the Services and there are no representations, understandings or agreements that are not fully expressed herein. Except as otherwise provided herein, no provision of this Agreement, including any SO or SOW, may be amended, superseded or terminated, or any term or condition waived, unless the Parties agree in writing, signed by a duly authorized representative of each Party. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to Applicable Law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right or any other right. Any waiver of any right or remedy under this Agreement must be in writing and signed by a duly authorized representative of each Party. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion. Except as otherwise expressly stated in this Agreement, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity. The Parties agree that any term or condition contained in Client’s purchase order shall not add-to, modify or amend the terms of this Agreement. This Agreement will be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there will be no presumption or inference against the Party drafting this Agreement. Headings contained in this Agreement are inserted for convenience of reference only and shall not in any way define or affect the meaning or interpretation of any provision of this Agreement. This Agreement may be executed by electronic signature and delivered by emailed PDF which will be deemed to be “in writing” to the same extent and with the same effect as if the Agreement had been signed manually. All provisions of this Agreement including, without limitation, provisions relating to disclaimers of warranties, remedies, damages, confidentiality, limitation of liability, governing law and venue, indemnification, termination, waiver, notices, payment obligations, interpretation and order of precedence, shall survive termination or expiration of this Agreement for any reason except those requiring performance only during the SO Term or SOW Term, as applicable.