Effective March 1st, 2023
These Coalesce Terms and Conditions (these “Terms”) are entered into between between Coalesce Automation, Inc., a California Corporation (“Coalesce,” “we” or “us”), and the customer set forth in the Order (defined below) (“Customer” or “you”). These Terms include, and incorporate by this reference, (a) any ordering document between Coalesce and Customer referencing these Terms, if any (an “Order” and together with these Terms, the “Agreement”) and (b) all amendments and addenda to the Agreement.. Coalesce and Customer are sometimes referred to collectively as the “Parties” and individually as a “Party.”
THE AGREEMENT TAKES EFFECT WHEN CUSTOMER CLICKS THE “SIGN UP” BUTTON OR BY ACCESSING OR USING THE SERVICES (the “Effective Date”). BY ACCESSING OR USING THE SERVICES AFTER THE EFFECTIVE DATE, CUSTOMER (A) ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTANDS THE AGREEMENT; (B) REPRESENTS AND WARRANTS THAT CUSTOMER HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THE AGREEMENT AND, IF ENTERING INTO THE AGREEMENT FOR AN ORGANIZATION, THAT CUSTOMER HAS THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPTS THE AGREEMENT AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS.
IF CUSTOMER DOES NOT ACCEPT THESE TERMS, CUSTOMER MAY NOT ACCESS OR USE THE SERVICES.
Coalesce and Customer agree as follows:
Section 1: Definitions
“Account” means a single user electronic account permitting Customer or Authorized Users to access and use the Services.
“Coalesce Parties” means Coalesce and its affiliates, independent contractors and service providers, and each of their respective members, directors, officers, employees and agents.
“Coalesce Platform” means the software as a service provided by Coalesce under the Agreement including the application which allows Customer to transform data and transfer data from a source repository to a target repository, together with any improvements, updates, bug fixes or upgrades thereto.
“Confidential Information” means any information that is proprietary or confidential to the Discloser or that the Discloser is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a third party). Confidential Information may be of a technical, business or other nature (including, but not limited to, information which relates to the Discloser’s technology, research, development, products, services, pricing of products and services, employees, contractors, marketing plans, finances, contracts, legal affairs, or business affairs).
“Contact” means any actual or prospective clients of Customer who interact with any Services deployed by Customer or Coalesce on Customer’s behalf.
“Customer Data” means any data or information (a) provided by Customer or any Authorized User to Coalesce collected through the Services, or otherwise or (b) collected through the interaction of Contacts with any Services. For example, Customer Data includes log-in information for Authorized Users. This includes sensitive, confidential, or personally identifiable information that is transmitted by, processed in some way, or stored in electronic media.
“Discloser” means a Party that discloses any of its Confidential Information to the other Party.
“Documentation” means the online documentation relating to the Services furnished or made available by Coalesce to Customer.
“Feedback” means information and feedback (including questions, comments, suggestions, or the like) regarding the performance, features, functionality and overall Customer experience using the Services.
“Intellectual Property Rights” means any patent, copyright, trademark, service mark, trade name, trade secret, know-how, moral right or other intellectual property right under the laws of any jurisdiction, whether registered, unregistered, statutory, common law or otherwise (including any rights to sue, recover damages or obtain relief for any past infringement, and any rights under any application, assignment, license, legal opinion or search).
“IP Dispute” means any dispute, cause of action, claim, or controversy relating to Customer’s or Coalesce’s Intellectual Property Rights.
“Recipient” means a Party that receives any Confidential Information of the other Party.
“Services” means (a) Coalesce, and any successor or related web site designated by Coalesce, (b) the Coalesce Platform, (c) the software program designed by Coalesce that replies to Contacts’ queries autonomously, (d) any improvements or modifications in or to the foregoing, and (e) other materials or information developed, discovered, authored or reduced to practice in the performance of the Services.
“Third Party Services” means software or services acquired or licensed by Coalesce from a third party that is included in the Services or otherwise made available to Customer or its Authorized Users.
“Trademarks” means any trademarks, service marks, service or trade names, logos, and other designations of a Party and its affiliates.
Section 2: Customer’s Rights in the Services
2.1 Rights to Use the Services. Coalesce hereby grants to Customer a limited, nonexclusive, nontransferable, non-sublicensable, revocable right during the Term to (a) create an Account, (b) access, use, implement and operate, as applicable, the Services, and (c) invite and enable up to the number of Customer employees or other designees (“Authorized Users”) permitted by Customer’s Usage Plan set forth in an Order to create an Account and access and use the Services. Customer is responsible for all Authorized Users’ compliance with the Agreement.
2.2 Free Trials. Customer may receive access to a Service (or Service features) as a Free Trial (“Free Trial”), as identified in an Order. Any usage of a Free Trial by Customer is optional. With respect to any Free Trial that Coalesce makes available to Customer, Coalesce grants the rights to Customer set forth in Section 2.1 solely for Customer’s internal evaluation during the period designated by Coalesce (or if not designated, 30 days). The Free Trial may be subject to additional terms provided by Coalesce and agreed by Customer. Coalesce may suspend or terminate Customer’s access to the Services under a Free Trial at any time for any reason.
2.3 Notwithstanding anything in the Agreement to the contrary, Coalesce has no obligation to provide support, maintenance, upgrades, modifications, or new releases for the Services under a Free Trial. CUSTOMER AGREES THAT THE SERVICES OFFERED UNDER A FREE TRIAL AND RELATED DOCUMENTATION ARE BEING DELIVERED “AS IS” WITHOUT WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL COALESCE BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR DAMAGES, DIRECT OR INDIRECT, OF ANY NATURE OR EXPENSES INCURRED BY CUSTOMER IN CONNECTION WITH ITS USE OF THE SERVICES DURING A FREE TRIAL. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WILL BE TO TERMINATE ITS USE OF THE SERVICES UNDER THE FREE TRIAL AND THE AGREEMENT BY WRITTEN NOTICE TO COALESCE.
2.4 Restrictions; Limitations. Customer may not use the Services in any manner or for any purpose other than as expressly permitted by the Agreement. Without limitation of the foregoing, the rights granted under this Section 2 do not include or authorize: (a) modifying, disassembling, decompiling, reverse engineering or otherwise making any derivative use of the Services or using or accessing the Services to build a competitive product or service; (b) using any data mining, robots or similar data gathering or extraction methods except as provided by the Services; or (c) using or exploiting (whether commercially or non-commercially) the Services other than for their intended use. The rights granted under this Section 2 are conditioned on Customer’s and its Authorized Users’ continued compliance with the Agreement.
2.5 Changes to Coalesce Platform. Coalesce may change the features, functionality or other aspects of the Services from time to time and without notice to the Customer, provided that such changes do not materially reduce the functionality of the Services.
2.6 Suspension of Coalesce Platform. Coalesce may, in its sole discretion, immediately suspend access to or use of the Services by Customer or any Authorized User if Customer or any Authorized User violates a material restriction or obligation in the Agreement, or if in Coalesce’s reasonable judgment, the Services or any component thereof is about to suffer a significant threat to security or functionality. Coalesce may provide advance notice to Customer of any such suspension based on the nature of the circumstances giving rise to the suspension. Coalesce will use reasonable efforts to re-establish the affected Service after Coalesce determines that the situation giving rise to the suspension has been cured. Coalesce may terminate access to the Services if any of the foregoing causes of suspension are not cured within 30 days after Coalesce’s initial notice thereof. Any suspension or termination by Coalesce under this Section 2.6 will not excuse Customer from its obligation to make payment(s) under the Agreement. Any suspension under this Section shall remain in effect until the applicable breach, if curable, is cured.
Section 3: Eligibility; Registration; Support; Data Practices; Coalesce Responsibilities
3.1 Eligibility. Customer represents and warrants that it and all Authorized Users are not: (a) residents of any country subject to a United States embargo or other similar United States export restrictions, including Iran, Cuba, North Korea, the Region of Crimea, Sudan or Syria; (b) on the United States Treasury Department’s list of Specifically Designated Nationals; (c) on the United States Department of Commerce’s Denied Persons List or Entity List; or (d) on any other United States export control list.
3.2 Registration. Customer and each Authorized User will need to register for an Account through the Services. Each Account may only be used by one person. Customer will ensure that Customer and each Authorized User that is invited to register for an Account: (a) provide accurate, current and complete information when creating an Account; (b) maintain and promptly update all Account information; (c) do not share passwords with others and restrict access to the Account and their computer or mobile device; (d) promptly notify Coalesce if Customer or any Authorized User discovers or otherwise suspects any security breaches related to such user’s Account; and (e) accept responsibility for all unauthorized access and activities that occur under such Authorized User’s Account. Each Account login password should be chosen carefully and not contain any personal or other information that may be easily guessed by anyone else.
3.3 Violations. Customer is liable for all activity that occurs under Authorized Users’ Accounts, Authorized User’s compliance with the Agreement, and any of use, misuse or unauthorized use (including by third parties) of Accounts, and Coalesce reserves the right to terminate the account of any Authorized User for any such unauthorized use. The acts or omissions of any Authorized User or third party under an Authorized User’s Account are considered the Authorized User’s acts or omissions, as applicable. Customer will immediately notify Coalesce of any such violations and take immediate action to remedy such violations.
3.4 Support. Coalesce will provide Customer direct contact information for a designated representative (“Customer Success Manager”) to provide first line support and communication regarding the Services. During the Term, Coalesce will also provide reasonable levels of support to Customer and Authorized Users relating to the Services during normal business hours (9am to 5pm Pacific Time, Monday through Friday, excluding holidays) in accordance with the Service Level Addendum located at coalesce.io/service-level-addendum.
3.5 Coalesce Responsibilities.
(a) Coalesce Personnel. Coalesce is responsible for the performance of its employees and contractors under the Agreement. Coalesce may use non-employee contractors for the purpose of providing the Services.
(b) Security; Third Party Service Providers. Customer acknowledges that Customer Data is processed on a distributed network owned and maintained by trusted, industry-standard Third Party cloud providers, that are responsible for securing the network. Coalesce will not make any substantive changes to the Third Party Service provider’s applicable services that would be reasonably anticipated to result in any material loss of security, functionality or performance of the Services. Coalesce will implement and maintain during the Term commercially reasonable administrative, physical and technical safeguards designed to protect Customer Data from unauthorized access, use and disclosure, including the following: (1) use of Third Party Service providers to provide secure hosting services; (2) physical controls designed to secure its facilities used to process Customer Data from unauthorized access; (3) user authentication and access controls that are designed to ensure that access to Customer Data is limited to individuals with a need to know for purposes of performing services under the Agreement; (4) screening procedures for employees who may have access to Customer Data; (5) procedures designed to ensure that persons authorized to process personal data have committed in writing to maintain the confidentiality of personal data or are under an appropriate statutory obligation of confidentiality; (6) measures for logging and monitoring of the details of all processing of Customer Data; (7) measures designed to ensure that all Customer Data is compartmentalized or otherwise logically distinct from other information of Coalesce; and (8) controls designed to protect the Coalesce networks, devices and systems from malware and unauthorized software.
Section 4: Fees, Payments and Taxes
4.1 Fees. Customer will pay the fees described in the applicable Order (collectively, the “Fees”) for the subscription set forth in such Order (the “Subscription”, and the period of such Subscription, the “Subscription Period”).
4.2 Invoiced Payment.
(a) Invoicing schedule for fixed fees. Coalesce will issue an invoice for the total amount of the Fees for the entire Subscription Period within 30 days of the commencement of the then-current Subscription Period. For any Fees other than for the Subscription specified in the Order, Coalesce will issue invoices after the end of each calendar month during the Subscription Period.
(b) Payment terms. Customer will pay invoiced Fees without offset or deduction at the address or account for Coalesce set forth on the applicable invoice within 30 days of Customer’s receipt of the corresponding invoice.
(c) Claims. If Customer believes that Coalesce has invoiced Customer incorrectly, Customer must contact Coalesce no later than 30 days after the date of the invoice in which the claimed error or problem appeared in order to receive an adjustment or credit, if any. Inquiries should be directed to armon.petrossian@coalescesoftware.io.
4.3 Pricing and Availability. All prices are shown in U.S. dollars. Coalesce reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of each Subscription Period, upon 30 days’ prior notice to Customer (which may be sent by email). If Coalesce exercises its rights under this Section 4.4, Customer may cancel its Subscription any time between receipt of such notice and the renewal date of the Subscription.
4.4 Taxes. All Fees and other amounts payable by Customer under the Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any national, federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Coalesce’s income.
Section 5: Term and Termination.
5.1 Term. The term of this Agreement will commence on the Effective Date and will continue for so long as a Subscription Period is in effect unless and until terminated pursuant to Section 2.4, 5.2 or 6.2 of this Agreement (the “Term”). This agreement will automatically renew for a period of 12 months upon the conclusion of the original term unless a written cancellation notice is sent to and received by ar@coalesce.io at least 60 days prior to the expiration of the original term. We may increase our Fees upon renewal, and we will communicate any increase in Fees at least 90 days prior to the expiration of the original term.
5.2 Termination for Material Breach. Either Party may terminate the Agreement, effective on written notice to the other Party, if the other Party materially breaches the Agreement, and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach.
5.3 Effect of Termination. In the event of any termination of the Term:
(a) All of Customer’s and each Authorized User’s rights (including the license granted in Section 2.1) under the Agreement will immediately terminate and Customer and all Authorized Users will immediately cease any access or use of the Services;
(b) Customer will be responsible for all charges (including any applicable taxes and other charges) incurred with respect to Fees processed prior to the termination of the Term.
(c) If Coalesce terminates the Term for material breach by Customer under Section 5.2, then Customer will remain responsible for the remaining balance of any Fees and Customer must pay within 30 days of termination all such amounts, as well as all sums remaining unpaid for other Orders under the Agreement plus related taxes and expenses; and
(d) Sections 1, 2.2, 3.3, 4, 5.3, 6 through 11 of the Agreement, together with any other provisions that by their nature are intended to survive, will continue to apply in accordance with their terms.
If Customer terminates the Term for material breach by Coalesce under Section 5.2, then Coalesce shall refund to Customer within 30 days of termination any unused pre-paid Fees on a pro rata basis for the remaining Term following the month in which the termination is effective. Except for the foregoing, Customer will not receive a refund for any partial Subscription Period.
Section 6: Indemnification
6.1 By Customer. Customer will defend, indemnify, and hold harmless the Coalesce Parties from and against all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party, Contact or Authorized User claim concerning: (a) Customer’s or Authorized Users’ unauthorized use of the Coalesce Platform including use of the Services other than as permitted under the Agreement; (b) any Customer Data or other data or content related to Customer, Authorized Users or Contacts which Customer provides, uploads, or inputs into the Services; or (c) the combination of the Customer Data with other applications, content or processes. If Coalesce is obligated to respond to a third party subpoena or other compulsory legal order or process described above, Customer will also reimburse Coalesce for reasonable attorneys’ fees, as well as the time and materials spent by Coalesce’s employees and contractors responding to the third-party subpoena or other compulsory legal order or process at Coalesce’s then-current hourly rates.
6.2 By Coalesce. Coalesce will defend, indemnify, and hold harmless Customer from and against all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim that alleges that: (a) the Services infringe, misappropriate, or violate any United States patent, United States trademark or United States copyright or trade secret or (b) Coalesce has suffered a security breach as a result of its failure to meet its security obligations under the Agreement and such breach resulted in a loss of sensitive, confidential, or personally identifiable Customer Data. Further, should the Services become, or in Coalesce’s opinion are likely to become, the subject of a claim of infringement or misappropriation, Coalesce will, at its election and expense, (1) obtain for Customer the right to continue using the Services, pursuant to the terms and conditions of the Agreement, or (2) replace or modify the Services to become non-infringing or non-misappropriating but functionally equivalent. If neither (1) nor (2) is commercially feasible, Coalesce may terminate the Agreement. Coalesce’s indemnity obligations under this Section 6.2 do not apply to any claim resulting from: (v) Customer’s use of the Services during a Free Trial; (w) Customer, any Authorized User or Contact’s acts or omissions; (x) use not in accordance with the Agreement; (y) modifications, damage, misuse or other action of Customer or any third party; or (z) any failure of Customer to comply with the Agreement.
6.3 Procedure. For any claims under this Section 6, the indemnifying party will (a) give the indemnified party prompt written notice of the claim; (b) provide such assistance in connection with the defense and settlement of the claim as the indemnified party may reasonably request; (c) obtain the indemnified party’s written consent prior to (1) selecting and retaining counsel to defend against any claim under this Section 6 and (2) agreeing to any settlement; and (d) comply with any settlement or court order made in connection with the claim (e.g., related to the future use of any infringing Coalesce product or service).
Section 7: Ownership
7.1 The Services. As between Coalesce and Customer, Coalesce owns all right, title, and interest in and to the Services, together with all Intellectual Property Rights therein or thereto. Except as otherwise specified in Section 2.1 of the Agreement, Customer does not obtain any rights under the Agreement from Coalesce to the Services, including any related Intellectual Property Rights.
7.2 Feedback. Customer and Authorized Users may voluntarily provide Coalesce with Feedback and may make Authorized Users available to Coalesce on a reasonable basis for this purpose. Customer will not, and will ensure Authorized Users do not, provide any such Feedback to any third party without Coalesce’s prior written consent in each instance. Any Feedback Customer or Authorized Users provide to Coalesce will become the sole property of Coalesce. Coalesce will own, and Customer and Authorized Users hereby assign, all exclusive rights, including all Intellectual Property Rights in and to Feedback, excluding, however, any Customer Data included in such Feedback (if any), and Coalesce will be entitled to the unrestricted use and dissemination of Feedback for any purpose without acknowledgment or compensation to Customer or any Authorized Users.
7.3 Trademarks. Each Party owns all right, title and interest in and to such Party’s Trademarks and any goodwill arising out of the use of such Trademarks will remain with and belong to such Party and its licensors. Neither Party’s Trademarks may be copied, imitated or used without the prior written consent of the other Party or the applicable trademark holder; provided, that Customer hereby grants to Coalesce a limited right to use Customer’s Trademarks solely as necessary to provide the Services to Customer hereunder. Additionally, Coalesce may, without Customer’s consent, include Customer’s name and other indicia in its lists of current or former customers in promotional and marketing materials.
7.4 Customer Data.
(a) In connection with the Services, Coalesce will process Customer Data on behalf of Customer if Customer elects to use certain functionality of the Services that enable such processing. Customer will own all Customer Data and hereby instructs and authorizes Coalesce to: (1) use Customer Data to provide Services to Customer and its Contacts; and (2) use data related to Customer’s use of the Services in an aggregated or de-identified manner (“Aggregated Customer Usage Data”) to monitor the performance of the Services, improve the Services, and to develop new product and service offerings (collectively, the “Purpose”). As between Coalesce and Customer, Customer retains all right, title and interest in and to any Customer Data. Except as provided in this Section 7, Coalesce obtains no rights under the Agreement from Customer to the Customer Data, including any related Intellectual Property Rights.
(b) Coalesce reserves the right to: (1) disclose Customer Data to its service providers solely in connection with the Purpose and where required by applicable law or court order; (2) disclose Aggregated Customer Usage Data to third parties; and (iii) store Customer Data in the United States and other countries.
(c) By using or distributing access to the Services, Customer consents, on behalf of Contacts, Customer and Authorized Users (as applicable), to have all Customer Data (including personal information) transferred to and processed in the United States or any other country in which Coalesce operates, where Contacts, Customer or Authorized Users may have fewer rights than under local law.
(d) Customer will provide all legally required notices and collect all legally required consents to ensure that Customer and Coalesce may collect, use, disclose and otherwise process Customer Data in accordance with the terms of the Agreement without violating any applicable laws, including by providing notice of a privacy policy that accurately describes how Customer collects, uses and discloses information (including Customer Data) from Contacts and Authorized Users, as applicable. Without limiting the generality of the foregoing, Customer will ensure that Customer’s privacy policy discloses that information (including Customer Data) from Contacts and Authorized Users may be shared with Coalesce, including as described in this Section 7.4. Customer’s privacy policy will apply to all of Customer’s interactions with Contacts and Authorized Users. To the extent Coalesce collects, processes, or stores Customer Data which is Personal Data (defined in the Data Processing Agreement) for or on behalf of Customer for Contacts or Authorized Users residing in or citizens of the European Economic Area, Switzerland, or the United Kingdom, Coalesce will comply with the Data Processing Addendum located at coalesce.io/data-processing-addendum, solely for such Contacts or Authorized Users. To the extent Coalesce collects, processes, or stores Customer Data that includes personally identifying information that describes or relates to Contacts or Authorized Users residing in or citizens of California, Coalesce will not collect, retain, use, or disclose such Customer Data for such Contacts or Authorized Users for any purpose other than as necessary for the specific purpose of performing the Services, including collecting, retaining, using, or disclosing such Customer Data for a commercial purpose other than providing the Services. Without limiting the foregoing, Coalesce will not sell such Customer Data.
Section 8: Limited Warranties and Remedies
8.1 Warranties. Coalesce represents and warrants that: (a) the Coalesce Platform will perform in all material respects with the applicable Documentation when operated in accordance with the applicable Documentation; (b) it will provide the Services with commercially reasonable care and skill and in material compliance with applicable laws; (c) Coalesce is the exclusive owner of the software and Services, or otherwise has the right to provide access to the same to Customer, and that neither the software, Services nor Customer’s access to or use of the same infringes, violates, or misappropriates the patent, copyright, trademark, trade secret, or other Intellectual Property Rights of any third party; (d) there exists no agreement or restriction that would interfere with or prevent Coalesce from entering into the Agreement or rendering Services or providing the Subscription described herein; and (e) the Services are regularly scanned for viruses, worms, Trojan horses or similar software, hardware, system, or combinations thereof with the potential to corrupt, interfere, or otherwise affect access to the Services.
8.2 Remedy. Customer must give Coalesce notice of a material defect or nonconformance within 30 days from when Customer becomes aware of the such defect or nonconformance. Coalesce’s sole obligation with respect to a breach of the warranties in Section 8.1 will be to use commercially reasonable efforts to correct any nonconformance of the Services.
8.3 DISCLAIMER. EXCEPT AS SET FORTH IN SECTION 8.1: (A) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND CUSTOMER HEREBY WAIVES, RELEASES, AND DISCLAIMS, ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES INCLUDING ANY WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY MATERIALS OR CUSTOMER DATA PROVIDED BY CUSTOMER OR A THIRD PARTY WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED; AND (B) EXCEPT TO THE EXTENT PROHIBITED BY LAW, COALESCE AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. THIS SECTION DOES NOT APPLY TO SERVICES OFFERED UNDER A FREE TRIAL, FOR WHICH A SEPARATE DISCLAIMER IS SET FORTH IN SECTION 2.3.
Section 9: Limitations of Liability; Insurance
9.1 Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under the Agreement on account of, any delay or failure to perform as required by the Agreement as a result of any cause or condition beyond such Party’s reasonable control (including any act or failure to act by the other Party). This paragraph will not apply to any payment obligation of either Party.
9.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL ANY OF THE COALESCE PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER SIMILAR DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN, OR THE PERFORMANCE OF SERVICES. IN NO EVENT WILL THE AGGREGATE LIABILITY OF ANY OF THE COALESCE PARTIES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE AGREEMENT EXCEED THE COMPENSATION PAID BY CUSTOMER, IF ANY, TO COALESCE FOR THE SERVICES DURING THE 12 MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO LIABILITY. THIS SECTION DOES NOT APPLY TO SERVICES OFFERED UNDER A FREE TRIAL, FOR WHICH A SEPARATE LIMITATION IS SET FORTH IN SECTION 2.3.
9.3 Insurance. Each Party will obtain and maintain such insurance policies as may be required by applicable law and as follows: (1) Commercial General Liability written on an occurrence form, including personal and advertising injury with limits of $1,000,000 per occurrence and $2,000,000 general aggregate; and (2) Cyber Liability Errors and Omissions with limits of $1,000,000 per occurrence and in the aggregate.
Section 10: Confidential Information
Each Party reserves any and all right, title and interest (including any Intellectual Property Rights) that it may have in or to any Confidential Information that it may disclose to the other Party under the Agreement. The Recipient will protect Confidential Information of the Discloser against any unauthorized use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against unauthorized use or disclosure, but in no event will use less than a reasonable standard of care to protect such Confidential Information The Recipient will use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser. This Section 10 will not be interpreted or construed to prohibit any use or disclosure of information: (a) that was known to Recipient prior to receiving the same from the Discloser in connection with the Agreement; (b) that is independently developed by the Recipient; (c) that is acquired by the Recipient from another source without restriction as to use or disclosure; (d) that is necessary or appropriate in connection with the Recipient’s performance of its obligations or exercise of its rights under the Agreement; (e) that is required by applicable law (e.g., pursuant to applicable securities laws or legal process), provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof (e.g., so as to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure); or (f) that is made with the written consent of the Discloser. In the event of any breach or threatened breach by the Recipient of its obligations under this paragraph, the Discloser will be entitled to injunctive and other equitable relief to enforce such obligations.
Section 11: Miscellaneous
11.1 Independent Contractors. Each Party is an independent contractor and not a partner or agent of the other. The Agreement will not be interpreted or construed as creating or evidencing any partnership or agency between the Parties or as imposing any partnership or agency obligations or liability upon either Party. Further, neither Party is authorized to, and will not, enter into or incur any agreement, contract, commitment, obligation or liability in the name of or otherwise on behalf of the other Party.
11.2 Reference Program. Customer may voluntarily consult with Coalesce and work in good faith to agree on quotes and statements about Customer’s experience with the Coalesce Services. If Customer or an Authorized User volunteers such quotes or statements, Coalesce may, at its option, use such quotes and statements in connection with its sales and marketing activities.
11.3 No Third Party Beneficiaries. The Agreement does not create any third party beneficiary rights in any individual or entity that is not a Party to the Agreement.
11.4 Assignment. Neither Party may assign the Agreement or any right, interest or benefit under the Agreement without prior written consent of the other Party; provided that either party may assign the Agreement or any right, interest or benefit under the Agreement without such prior written consent to an entity that acquires all or substantially all of the business or assets of such party to which the Agreement pertains, whether by merger, reorganization, acquisition, sale or otherwise. Any attempted assignment in violation of the foregoing will be void. Subject to the foregoing, the Agreement will be fully binding upon, inure to the benefit of and be enforceable by any permitted assignee.
11.5 Nonwaiver. The failure of either Party to insist upon or enforce performance by the other Party of any provision of the Agreement, or to exercise any right or remedy under the Agreement or otherwise by law, will not be construed as a waiver or relinquishment of such Party’s right to assert or rely upon the provision, right, or remedy in that or any other instance; rather the provision, right or remedy will be and remain in full force and effect.
11.6 Dispute Resolution Procedures. Except for (a) any IP Disputes or (b) any claim for injunctive relief, Customer and Coalesce each waive their respective rights to a jury trial and to have any dispute arising out of or related to the Agreement or the Services resolved in court. Instead, all disputes arising out of or relating to the Agreement or the Coalesce Platform will be resolved through confidential binding arbitration held in San Francisco, California before and in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of the Judicial Arbitration and Mediation Services (“JAMS”), which are available on the JAMS website. The arbitrator may only conduct an individual arbitration and may not consolidate more than one party’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one party. Customer and Coalesce agree that the state or federal courts of the State of California and the United States sitting in San Francisco, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. Any claim Customer may have arising out of or related to the Agreement or the Coalesce Platform must be filed within one year after such claim arose; otherwise, the claim is permanently barred.
11.7 Severability. If any provision of the Agreement is deemed unlawful, void or for any reason unenforceable, then that provision will be deemed severable from the Agreement and will not affect the validity and enforceability of any remaining provisions.
11.8 Applicable Law. The Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of California, U.S.A., without reference to its choice of law principles to the contrary. The 1980 UN Convention on Contracts for the International Sale of Goods or its successor will not apply to the Agreement. Subject to Section 11.5, Customer hereby consents to the jurisdiction and venue of the state and federal courts located in San Francisco, California, U.S.A. with respect to any claim arising under or by reason of the Agreement.
11.9 Entire Agreement. The Agreement, together with any agreements, or other policy or guideline referenced in the Agreement, constitutes the complete and exclusive statement of all mutual understandings between the Parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.
