Terms and Conditions
THESE TERMS AND CONDITIONS (“TERMS AND CONDITIONS”) APPLY TO AND GOVERN THE PERFORMANCE OF ANY WRITTEN ORDER FORM(S) OR OTHER AGREEMENT(S) THAT EXPRESSLY INCORPORATES THESE TERMS AND CONDITIONS BY REFERENCE (“ORDER FORM”) THAT IS AGREED BETWEEN GH SF2, d/b/a GREATHORN, A DELAWARE CORPORATION LOCATED AT 951 20TH, #540, DENVER, CO 80201 (“GREATHORN“), AND THE CUSTOMER IDENTIFIED IN THE ORDER FORM (“CUSTOMER”). THESE TERMS AND CONDITIONS, INCLUDING ANY APPENDICES AND EXHIBITS, AND THE ORDER FORM TOGETHER CONSTITUTE THE SUBSCRIPTION AGREEMENT BY AND BETWEEN THE PARTIES AND ARE REFERRED TO COLLECTIVELY HEREIN AS THE “AGREEMENT.”
1. SUBSCRIPTION AND SUPPORT.
Subject to the terms, conditions and restrictions set forth in this Agreement, including payment of the fees set forth in the Order Form, GreatHorn hereby grants, and Customer hereby accepts, a non-exclusive, non-transferable, revocable, limited subscription right to access and use, solely for its internal business purposes, the product(s) and services, if any, identified on the Order Form (“Product”), in accordance with any user instructions or other documentation that GreatHorn may, in its sole discretion, provide or make available to Customer in any form or medium and which describes the functionality, components, features or requirements of the Product (“Documentation”) in the Order Form. Use of the Product is restricted and subject to the number of environments protected and other limitations, if any, set forth in the Order Form.
During the Subscription Term, GreatHorn will support the Product in accordance with the Support Policy then in effect, a current version of which is attached as Appendix 1. Customer agrees to abide by the Customer Acceptable Use Policy then in effect, a current version of which is attached hereto as Appendix 2.
1.2. CUSTOMER SYSTEMS AND COOPERATION.
Customer shall set up, maintain and operate in good repair and in accordance with the Documentation all information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”) on or through which the Products are accessed or used. Customer shall provide GreatHorn personnel with access to Customer’s Customer Systems and (provide all cooperation and assistance as GreatHorn may reasonably request to enable GreatHorn to exercise its rights and perform its obligations under this Agreement.
Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute, display, disclose or otherwise commercially exploit or make available to any third party the Product; (ii) modify or make derivative works based upon the Product; (iii) create Internet “links” to the Product; (iv) reverse engineer, decompile, disassemble, decode or otherwise attempt to derive, gain access to or otherwise use the source code for, all or any part of the Product for purposes, including without limitation in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Product, or (c) copy any ideas, features, functions or graphics of the Product; (v) input, upload, transmit or otherwise provide to or through the Products or any other technology used by or on behalf of GreatHorn, any information or materials that are unlawful or injurious, or contain, transmit or activate any virus, worm, malware or other malicious code; or (vi) remove, delete, alter or obscure any trademarks, specifications, documentation, warranties or disclaimers, or any copyright, trademark or other intellectual property or proprietary rights notices from the Products or Documentation.
GreatHorn reserves the right, in its sole discretion, to make any changes to the Products and Documentation that it deems necessary or useful to: (i) maintain or enhance the quality, delivery, competitive strength, marketability, cost efficiency or performance of GreatHorn’s products or services; or (ii) to comply with applicable law.
2. TERM AND TERMINATION
2.1 TERM OF AGREEMENT.
This Agreement is effective as of the effective date of the initial Order Form and will continue until the expiration of the Subscription Term, unless earlier terminated.
2.2 SUBSCRIPTION TERM.
The subscription term described in each Order Form will commence upon the effective date of such Order Form and continue as set forth therein (“Initial Subscription Term”) and will automatically renew for additional, successive terms (“Renewal Subscription Term,” together with Initial Term, “Subscription Term”) at GreatHorn’s standard rates, unless cancelled in writing by the either party no less than sixty (60) days prior to the expiration of the then current Subscription Term.
This Agreement may be terminated by either party if the other party breaches this Agreement and fails to cure such breach within thirty (30) days of receipt of written notice of the breach from the non-breaching party. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement, (i) all rights, licenses, consents and authorizations granted by GreatHorn to Customer hereunder will immediately terminate; (ii) Customer shall immediately cease all use of the Products and Documentation; and Customer shall promptly return to GreatHorn, or at GreatHorn’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on the Product, Documentation or GreatHorn’s Confidential Information.
3. FEES; PAYMENT TERMS.
Fees are specified on the Order Form. Unless otherwise set forth on the Order Form, payment terms are Net 30 days from the date of invoice. Customer shall be responsible for all taxes on the fees, except for taxes on GreatHorn’s income. All amounts payable to GreatHorn under this Agreement shall be paid by Customer to GreatHorn in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason. If Customer fails to make any payment when due, then in addition to all other remedies that may be available: (i) GreatHorn may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse GreatHorn for all reasonable costs incurred by GreatHorn in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees; and (iii) if such failure continues for 30 days following written notice thereof, GreatHorn may suspend Customer’s access to the Products until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer by reason of such suspension. For each Renewal Subscription Term, the above fees shall increase by the greater of either (a) 5% or (b) the most recently published December 12-month percentage change, Consumer Price index, All Items, not seasonally adjusted.
4. PROPRIETARY RIGHTS.
The Product and Documentation are the proprietary intellectual property of GreatHorn that contains trade secrets and is protected by copyright law. Subject to any subscription expressly granted under this Agreement, GreatHorn retains sole and exclusive ownership of all right, title and interest in and to the Product, and any other technology used to provide the Product, and Documentation. Any and all enhancements, modifications, corrections and derivative works that are made to the Product or Documentation will be considered part of the Product or Documentation for the purposes of this Agreement and will be owned by GreatHorn. GreatHorn may compile aggregate data and other statistical information related to the Customer’s use of the Products and may make such information publicly available, provided that such information does not incorporate Customer’s Confidential Information and that Customer’s name is not identified or identifiable. GreatHorn shall own all rights, title and interest in and to such aggregate data and other statistical information. Customer retains all rights, title and interest in and to Customer’s own information and data, including Customer’s processes, standards, practices, and management policies and procedures, that is input by Customer into, but exclusive of, the Product, or supplied to GreatHorn (“Customer Data”). Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. Customer acknowledges and agrees that GreatHorn owns all rights to any feedback provided to GreatHorn, including any bug reports, issue reports and support information; and GreatHorn shall be free to use such feedback for any purpose.
Each party shall maintain as confidential and shall not disclose (except to its employees, accountants, attorneys, advisors, affiliates, outsourcers and third party service providers of recipient with a need to know in connection with recipient’s performance under this Agreement, and who have been advised of the obligation of confidentiality hereunder), copy or use for purposes other than the performance of this Agreement, any information which relates to the other party’s business affairs, trade secrets, technology, research, development, pricing or terms of this Agreement (“Confidential Information”) and each party agrees to protect all received Confidential Information with the same degree of care that it would use with its own Confidential Information and to prevent unauthorized, negligent or inadvertent use, disclosure or publication thereof. Breach of this Section 5 may cause irreparable harm and damage. Thus in addition to all other remedies available at law or in equity, the disclosing party shall have the right to seek equitable and injunctive relief, and to recover the amount of damages (including reasonable attorneys’ fees and expenses) incurred in connection with such unauthorized use. The recipient shall be liable to the disclosing party for any use or disclosure in violation of this Section by recipient or its affiliates, employees, third party service providers or any other related party. Confidential Information shall not include information that (i) is already known prior to the disclosure by the owning party; (ii) is or becomes publicly known through no breach of this Agreement; (iii) is independently developed without the use of the other party’s Confidential Information and evidence exists to substantiate such independent development; (iv) information that is obtained from a third party, and that third party is not, in good faith belief of the recipient, under any legal obligation of confidentiality; or (v) the recipient receives written permission from the disclosing party for the right to disclose any Confidential Information.
6. REPRESENTATIONS AND WARRANTIES.
6.1 MUTUAL REPRESENTATIONS AND WARRANTIES.
Each party represents and warrants to the other party that: (i) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; (iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (iv) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1, GREATHORN MAKES NO, AND HEREBY DISCLAIMS ALL, WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, GREATHORN MAKES NO WARRANTY OF ANY KIND THAT THE PRODUCTS OR DOCUMENTATION, OR ANY RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER PRODUCTS OR SERVICES, OR BE ACCURATE, COMPLETE OR ERROR FREE. GREATHORN SHALL NOT BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY OTHER LOSS OR DAMAGE RESULTING FROM THE TRANSFER OF DATA OVER COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, AND CUSTOMER ACKNOWLEDGES THAT THE PRODUCTS MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.
7. LIMITATION OF LIABILITY.
THE CUMULATIVE LIABILITY OF GREATHORN TO CUSTOMER FOR ALL CLAIMS ARISING UNDER OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO GREATHORN UNDER THE APPLICABLE ORDER FORM WITHIN THE YEAR PRECEDING THE CLAIM. NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL GREATHORN OR ITS SUPPLIERS BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR DAMAGES FOR LOSS OF DATA, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, EVEN IF GREATHORN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IS NEGLIGENT.
8.1 BY GREATHORN.
If a third party claims that the Product infringes any U.S. patent, copyright, or trade secret, GreatHorn will defend Customer against such claim at GreatHorn’s expense and pay all damages finally awarded through judgment or settlement, provided that Customer promptly notifies GreatHorn in writing of the claim, allows GreatHorn sole control of the defense and/or settlement, and cooperates with GreatHorn in, the defense or settlement of such action. If such a claim is made or appears possible, GreatHorn may, at its option, secure for Customer the right to continue to use the Product, modify or replace the Product so that it is non-infringing, or, if neither of the foregoing options is available in GreatHorn’s reasonable opinion, terminate this Agreement and refund to Customer any unamortized pre-paid fees for use of the Product. GreatHorn shall have no liability or obligation hereunder with respect to any infringement claim if such infringement is caused by (i) Customer’s use of the Product other than as specified in the applicable Documentation; (ii) modification of the Product by any person other than as authorized in writing by GreatHorn; or (iii) the combination, operation or use of the Product with other product(s) or services not supplied by GreatHorn, where the Product would not by itself be infringing. THIS PARAGRAPH STATES GREATHORN’S ENTIRE OBLIGATION TO CUSTOMER WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
8.2 BY CUSTOMER.
Customer shall indemnify, defend and hold harmless GreatHorn and its officers, directors, employees, agents, successors and assigns from and against any and all claims, losses, liabilities, damages, causes of action, suits, expenses and costs (including reasonable attorneys and expert witness fees) which result from or arise out of a claim by a third party that, if true, would constitute a breach of any representation, warranty or covenant made by Customer hereunder; or relating to Customer Systems, Customer Data or any other technology, materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer.
9.1 ENTIRE AGREEMENT.
This Agreement is the complete and exclusive statement of the parties’ agreement and supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter hereof. If these Terms and Conditions conflict with any of the terms or conditions of any Order Form, then, unless otherwise provided herein, the terms and conditions of such Order Form will control solely with respect to the Products covered by such Order Form. Any purchase orders issued by Customer shall be deemed to be for Customer’s convenience only and, notwithstanding acceptance of such orders by GreatHorn, shall in no way change, override, or supplement this Agreement. This Agreement applies to the exclusion of any terms or conditions Customer seeks to impose or incorporate, or that might be implied by usage of trade, custom, practice, course of dealing, course of performance or otherwise.
Any waiver or modification of the provisions of this Agreement will be effective only if in writing and signed by the party against whom it is to be enforced. If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. A waiver of any provision, breach or default by either party or a party’s delay exercising its rights shall not constitute a waiver of any other provision, breach or default.
9.3 INDEPENDENT CONTRACTOR.
GreatHorn is an independent contractor and not an employee of Customer. At no time shall either party make any commitments or incur any charges or expenses for or in the name of the other party, or be considered the agent, partner, joint venturer, employer or employee of the other party.
All notices or other communications required to be given hereunder shall be in writing and delivered either by U.S. mail, certified, return receipt requested, postage prepaid; by overnight courier; or as otherwise requested by the receiving party, to the address listed in this Agreement. Notices shall be effective upon their receipt by the party to whom they are addressed.
This Agreement may not be assigned or transferred by Customer, whether by operation of law or otherwise, without GreatHorn’s prior written consent.
9.6 COMPLIANCE WITH LAWS; CCPA; EXPORT CONTROL.
(i) Compliance. Each party will be responsible for compliance with all legal requirements related to its performance under this Agreement, including all applicable U.S. export laws and those laws related to the protection, privacy and disclosure of data and information.
(ii) CCPA. To the extent the California Consumer Privacy Act of 2018, as amended, and its implementing regulations (the “CCPA”) applies to Customer’s use of the Product that GreatHorn provides to Customer pursuant to this Agreement, this CCPA section shall be effective as of the later of January 1, 2020 or the date on which Customer entered into the Agreement. “CA Personal Information” means any “Personal Information” that is subject to the CCPA and provided by or on behalf of Customer to GreatHorn for use with the Product.
Customer does not provide CA Personal Information in exchange for monetary or other valuable consideration. The Parties agree that any provision of CA Personal Information is not intended to constitute a Sale. With respect to the CCPA (and CA Personal Information), GreatHorn agrees that (a) except as permitted for a Service Provider in the CCPA (including regulations implementing or clarifying the CCPA), it will not retain, use, or disclose any CA Personal Information for any purpose other than to: (i) provide the Product under this Agreement; and (ii) use the CA Personal Information for internal operational purposes to verify, maintain, or improve the quality or safety of the Product, provided that the use of such CA Personal Information is reasonably necessary and proportionate to perform such internal operational activity, and not for Commercial Purposes to benefit third parties; and (b) it is prohibited from: (i) Selling the CA Personal Information; and (ii) retaining, using, or disclosing the CA Personal Information outside of the direct business relationship with Customer. GreatHorn may aggregate, deidentify, or anonymize CA Personal Information so that such CA Personal Information no longer meets the Personal Information definition, and may use such aggregated, deidentified, or anonymized data for its own research and development and other Business Purposes and/or Commercial Purposes, to the extent permitted by the CCPA. For the purposes of this CCPA section the terms “Personal Information,” “Business Purpose,” “Commercial Purpose,” “Sell,” “Sale,” and “Service Provider” shall have the same meaning as set forth in the CCPA.
(iii) Export Control. Customer acknowledges that export of the Products is subject to regulation by the United States which prohibits export or diversion of the Products to certain countries. Customer shall not export, re-export, use or divert any of the Products, directly or indirectly, to or on behalf of (a) any country that is subject to U.S. economic sanctions administered by the US Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), including but not limited to Cuba, Iran, Sudan, Syria and North Korea; (b) the government of an OFAC-sanctioned country, wherever located; or (c) persons or entities identified as “Specially Designated Nationals” by OFAC, or entities that are owned or controlled by a Specially Designated National. Customer shall not distribute or supply the Products to, any person if Customer has reason to believe that such person intends to export, re-export or otherwise transfer the Products to, or use the Products in or for the benefit of, any of such OFAC-sanctioned countries, governments, persons, or entities. Customer shall not use, or supply the Products to any End Customer, the Products in connection with the commission of terrorist acts or the design, development, production, or use of nuclear, biological, or chemical weapons; missiles; or unmanned aerial vehicles. Customer shall not supply Products to any person or entity with knowledge or reason to know that any of the prohibited activities identified in this section are intended by such person or entity. Customer will not violate any United States or other applicable law, regulation, treaty or agreement relating to the export or re-export of the Products, and shall obtain any government consents, authorizations, or licenses required by law or regulation for Customer to exercise its rights and to discharge its obligations under this Agreement. Acknowledging that any data it may place on the Products may constitute an export of such data by the End Customer to one or more foreign jurisdictions, Customer shall not cause any such export of data in violation of the laws of the United States and/or such other foreign jurisdictions.
9.7 FORCE MAJEURE.
Neither party will be responsible for any failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, terrorism, war, riot, embargoes, fire, floods, earthquakes, strikes or failure of a utility service or telecommunications network (each a “Force Majeure Event”) provided that such party gives prompt written notice to the other party of the Force Majeure Event. The time for performance will be extended for a period equal to the duration of the Force Majeure Event.
9.8 GOVERNING LAW AND DISPUTES.
This Agreement and any dispute arising hereunder shall be governed by and interpreted and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to conflict of law principles, and shall be subject to the exclusive jurisdiction of the federal and state courts located in the Commonwealth of Massachusetts, and each party consents to the exclusive personal jurisdiction and venue of such courts.
Neither party shall directly or indirectly solicit, employ or engage any employee of the other party with whom the non-employing party came into contact through the performance of this Agreement during the period such employee was engaged in the performance of this Agreement and for one (1) year after such engagement. If any court or other adjudicatory body determines that the foregoing provision is unenforceable because of its duration or scope, the court or adjudicatory body has the power to reduce the duration or scope of the provision, as the case may be, so that in its reduced form the provision is enforceable. Such power includes the authority to reform the provision by rewriting it, if required, so that it conforms to applicable law and carries out the parties’ intentions under this Agreement.
9.10 U.S. GOVERNMENT RESTRICTED RIGHTS.
Any software and documentation related to the Product are “commercial items” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Absent a written agreement to the contrary, the U.S. Government’s rights with respect to such software and documentation are limited by the terms of this Agreement, pursuant to U.S. Federal Acquisition Regulations §12.212(a) and/or Defense Federal Acquisition Regulations Supplement § 227.7202-1 through 227.7202-4, as applicable.
The following provisions of this Agreement shall survive any termination or expiration hereof: Sections 3 through 9.
Available via: https://www.greathorn.com/support-policy-2020/
Acceptable Use Policy
Your use of Product is subject to this Customer Acceptable Use Policy (this “CAUP”).
GreatHorn may suspend your use of the Product without notice if it determines that you are in violation of the CAUP. No credit will be available for interruptions of Product resulting from CAUP violations. Under this CAUP “You” shall also mean any user of your account. You are independently responsible for complying with all applicable laws related to your use of the Products, regardless of the purpose of the use. GreatHorn encourages you to report violations to [email protected]. You may be in violation of this CAUP if GreatHorn determines that you are intentionally using the Products to engage in unlawful or abusive behavior, or encouraging others to engage in or foster such behavior, including but not limited to:
- Breaching any applicable local, national or international law or regulation;
- generating or facilitating unsolicited bulk or commercial email in violation of the CAN- SPAM Act or any other laws and regulations applicable to bulk or commercial email, including but not limited to sending any communications to persons who indicate that they do not wish to receive them;
- violating or misappropriating the legal rights of others, including but not limited to privacy rights and intellectual property rights, or exposing trade secrets or other confidential information of others;
- intentionally distributing viruses, worms, Trojan horses, corrupted files, hoaxes, or other malicious software code;
- interfering with the use of the Products, or the equipment used to provide the Products, including but not limited to exceeding allowed bandwidth by transferring excess data, using any Products or system in a way that consumes a disproportionate share of the resources or otherwise interferes with the normal operation of the shared Products or system, or materially exceeding the average amount of data per mailbox or seat or the user storage amount;
- altering, disabling, interfering with, or circumventing any aspect of the Products, including but not limited to permitting or facilitating unauthorized access to the Products (whether through distribution of malicious software code or by any other means);
- probing, scanning, penetrating, reverse engineering any GreatHorn system, software or network (unless authorized in writing by GreatHorn) or breaching GreatHorn’s security measures;
- using GreatHorn’s Products or equipment to publish, transmit (live or otherwise) or store any content or links to any content that is illegal; fraudulent or promoting or soliciting an illegal activity;
- using the Products, or a component of the Products, for any unlawful or fraudulent purpose; and
- using the Products in any manner not authorized by GreatHorn, or in any manner that GreatHorn reasonably believes to be damaging to its reputation, business, system, network, or Products.
You shall not:
- any part of GreatHorn’s website;
- any equipment or network on which GreatHorn’s website is stored;
- any software used in the provision of GreatHorn’s website; or
- any equipment or network or software owned or used by any third party that GreatHorn utilizes in the provision of GreatHorn’s website.