ObservePoint, Inc. (hereinafter referred to as “ObservePoint”), a Delaware corporation, located at 2100 W. Pleasant Grove Blvd., Suite 300, PleasantGrove, Utah 84062 owns and offers to its customers a cloud-hosted Enterprise-Class data quality assurance platform (the“Platform”). ObservePoint will provide its Services (defined below) to the person or entity (hereinafter referred to as “Customer”) identified on any ServiceOrder executed in connection with this Service Agreement (a “Service Order”)who desires to purchase ObservePoint Services, and to whom ObservePoint desires to make available its technology and to provide the Services, in accordance with the terms and conditions set forth in this Service Agreement(“Agreement”). Customer and ObservePoint are referred to herein each individually as a “Party” and collectively as the “Parties.”
1.1. “Customer Data” means any data gathered or generated by ObservePoint and provided to Customer in connection with the Services .
1.2. “ObservePoint Software” means ObservePoint’s proprietary software, which provides, among other functions, automated tag auditing and monitoring.
1.3. “Services” means, collectively, the technology platform and related logistics services provided hereunder, including the Subscription Services and any other professional services.
1.4. “Subscription Services” are defined as the ObservePoint Software offered on a subscription basis, and to which Customer purchases a subscription pursuant to a Service Order. Subscription Services may include subscriptions to use other Services as indicated in a Service Order.
2. Services, Ordering, and Data.
2.1. Free Services. ObservePoint makes certain site audits and Services available for free including for evaluation purposes, through theObservePoint.com website. All free products, services, browser extensions, applications, reports, or other downloads that are made available through theObservePoint website are provided on an “as-is” and “as-available” basis.ObservePoint reserves the sole right to either modify or discontinue the site or any of the products, services or features that are being provided toCustomer for free at any time with or without notice to Customer. To register for the free Services of the ObservePoint website and to sign up for any free offerings or paid services, Customer must be and hereby acknowledges that they are eighteen (18) years or older, must provide Customer’s company name and/or legal full name, a valid email address for Customer, a valid phone number forCustomer, the URLs Customer would like audited and any other information requested in order to complete the signup process, and Customer must not be a machine.
2.2. ObservePoint Software Usage Terms. ObservePoint hereby grants toCustomer during the applicable subscription term identified in the applicableService Order—or if receiving services under Section 2.1, then during the period of such usage—a limited, non-exclusive right to allow Customer personnel to access and use the features and functions of the ObservePoint Services for Customer’s internal business use. Except for the rights expressly granted herein, no other rights, are granted to Customer under this Agreement, whether expressly, by implication, estoppel, or otherwise, and all rights not expressly granted herein are reserved by ObservePoint. All right, title and interest in and to the ObservePoint Services and related documentation are and shall remain the exclusive property of ObservePoint and/or its licensors, and nothing herein grants to Customer any right to access copies of any ObservePoint Software, whether in source or object code form. Customer acknowledges and agrees that: (i) the ObservePoint Services and any software used in connection with the Services and related documentation are protected under U.S. and foreign copyright and other intellectual property laws; (ii) ObservePoint and its licensors retain all copyrights and other intellectual property rights in theObservePoint Services and any software used in connection with providing theServices and related documentation; and (iii) except as otherwise provided herein, Customer acquires no ownership in or to ObservePoint Services, any software used in connection with provision of the Services, or related documentation.
2.3. Ordering Premium Services. Customer shall order premium paidServices by mutual execution of a written ObservePoint Service Order that specifies the Services, applicable subscription term(s), and fees (“ServiceOrder”). The Service Order is incorporated into this Agreement by reference. Additional Services ordered in any subsequent Service Orders shall be governed by, and incorporated by reference into, this Agreement.
2.4. Usage Data. Customer and ObservePoint acknowledge and agree that, as between Customer and ObservePoint, Customer Data is the property of Customer.Customer agrees that ObservePoint may collect and use data pertaining to the use of the ObservePoint Services (“Usage Data”). Any Usage Data collected will be anonymous without reference to the particular user. ObservePoint may use the Usage Data for its internal research and development purposes and may disclose Usage Data in an aggregated format that in no way identifiesCustomer or any particular user (e.g. ObservePoint may disclose aggregate audit volume statistics for all of its customers).
3. Fees and Taxes.
3.1. Fees. Unless otherwise stated herein or in a Service Order, fees forServices are invoiced annually in advance, and payments are due thirty (30)days from date of invoice. If all amounts payable are not received when due,ObservePoint may charge interest on delinquent undisputed amounts at the lesser of (a) the maximum amount chargeable by law or (b) one and one-half percent(1½%) per month. ObservePoint reserves the right to suspend access to theServices until payment is current, and such suspension shall not extend the expiration date of Services ordered. Except as expressly provided herein, all amounts paid hereunder are non-refundable.
3.2. Taxes. Unless otherwise stated in a Service Order, ObservePoint’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, other than direct taxes on the net income of ObservePoint. If ObservePoint has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides ObservePoint with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.3. Travel Costs and Expenses. Unless otherwise stated in a ServiceOrder, Customer will be responsible for payment of all reasonable travel costs and expenses incurred (airfare, ground transportation, lodging, and per diem meals) in connection with any on-site consulting and/or professional services provided by ObservePoint, and such travel will be confirmed with Customer in advance of booking. If requested by Customer, ObservePoint consultants will useCustomer’s standard guidelines and discount providers when making travel arrangements. Customer will be billed for travel costs and expenses separately and reimbursement requests shall be submitted monthly.
4. Term, Renewal, and Termination of Agreement.
4.1. Term. The term of this Agreement shall commence upon acceptance of thisAgreement (“Effective Date”) and shall continue until expiration of allServices ordered, or until such earlier termination as provided for herein(“Term”).
4.2. Service Commencement. Unless otherwise stated in a Service Order,Subscription Services purchased under this Agreement will commence upon the date Customer is provided login credentials for the Platform.
4.3. Renewal of Subscription Services. Unless otherwise stated in a ServiceOrder, the term for provision of Subscription Services shall automatically renew for an additional annual term on the expiration date of the then-current term, and on each expiration date thereafter unless intent to cancel is received in writing by ObservePoint thirty (30) days prior to the renewal date.
4.4. Termination for Material Breach. This Agreement may be terminated by either Party upon thirty (30) days’ prior written notice in the event of a material breach by the other Party that is not remedied within thirty (30) days of such notice. With regard to such termination, if the Customer validly terminates this Agreement on the grounds of a material breach by ObservePoint,ObservePoint shall, if requested by the Customer in writing, issue a prorated refund for the pre-paid amount of any unused Services within thirty (30) days of the Customer’s written request.
4.5. Effect of Termination. Upon termination of the Agreement or an applicableService Order, Customer will cease all use of the Services and destroy all copies of accompanying documentation that are in Customer’s possession. Upon termination of the Agreement or a specific Service Order, Customer shall have the following options with regard to Customer Data: 1) ifCustomer requests in writing, prior to termination, ObservePoint shall provideCustomer with a copy of the Customer Data stored on ObservePoint servers, and ObservePoint shall then delete all such Customer Data from ObservePoint servers; or 2) ObservePoint shall purge remaining Customer Data from theObservePoint servers, and ObservePoint shall have no further responsibility to retain copies of Customer Data. The Parties agree and acknowledge that the foregoing requirement does not apply to Usage Data to the extent it does not contain or embody Customer Data in raw form.
5. Acceptance and Restrictions.
5.1. Acceptance of Services. Customer’s commencement of use of the Services provided on ObservePoint’s website shall indicate Customer’s acceptance of theServices. Any requests for modifications that conform to the applicableService Order must be received by ObservePoint prior to Customer’s commencement of use of the Services.
6. Customer’s Responsibilities.
6.1. Computers and Connectivity. Customer is responsible for providing and maintaining adequate computer equipment, its own software, internet browsers, internet connections, connectivity, and firewall access required for the access and use of the Services.
6.2. Security. Customer is solely responsible for determining which of its own personnel will have access to Customer Data and any data protection requirements to apply with respect thereto, including cross border data transfer requirements, related to the access, disclosure or distribution of such Customer Data. If any Customer password is lost, stolen or otherwise compromised, Customer shall promptly notify ObservePoint, and ObservePoint issue a replacement password to Customer.
7. Disclaimers, Warranties
7.1. Free Services Disclaimer of Liability. Absent a signed Service Order, ifCustomer chooses to utilize any free Services made available by ObservePoint,Customer releases, waives, and otherwise holds harmless ObservePoint from any loss or liability Customer incurs in its use or reliance upon such free offerings. Customer acknowledges and agrees that ObservePoint is only able to make the free offerings available to Customer based on Customer’s agreement to hold ObservePoint harmless from any liability Customer sustains either directly or indirectly arising from the free services, and as such Customer’s sole and exclusive legal remedy shall be to cease using the free Services. ObservePoint makes no representations or warranties whatsoever about such free Services. ObservePoint does not make any guarantees about the accuracy of any information contained in, by or through any free offerings.
7.2. Warranty. During the subscription term set forth in an applicable ServiceOrder, in the event that Customer notifies ObservePoint that the Services do not materially conform to the specifications set forth in an applicable ServiceOrder, ObservePoint shall use commercially reasonable efforts to provideCustomer with support to address such non-conformity. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS-IS”, AND OBSERVEPOINT MAKES NO OTHER REPRESENTATIONS, WARRANTIES, OR CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, TO CUSTOMER OR ANY OTHER PERSON OR ENTITY AND EXPRESSLY DISCLAIMS TOTHE FULLEST EXTENT PERMITTED BY LAW ANY AND ALL SUCH IMPLIED OR STATUTORY WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO THOSE AS TO THE SECURITY, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE SERVICES. FOR CLARIFICATION, OBSERVEPOINT DOES NOT PROVIDE LEGAL ADVICE AND ASSUMES NO RESPONSIBILITY OR LIABILITY FOR ACTIONS TAKEN BY CUSTOMER BASED ON THE SERVICES PROVIDED INCLUDING CUSTOMER’S ACTIONS TO BE IN COMPLIANCE WITH ANY LAWS,REGULATIONS OR OTHER GOVERNMENT REQUIREMENTS.
7.3. Third Party Software. Customer understands and agrees that Customer’s download and/or use of any third party software or services (e.g. web browser or video plug ins) in order to connect to the Internet to utilize the Services is at Customer’s own discretion and risk and that Customer will be solely responsible for any damages to Customer’s computer system or loss of data that results from the download or use of such third party software and services. Customer shall be responsible for and shall ensure current versions of publicly available third party software required to run the Services are installed and maintained on Customer equipment.
7.4. Implied Warranties. Some states or other jurisdictions do not allow the exclusion of implied warranties, so the above exclusions may not apply toCustomer. Customer may also have other rights that vary from state to state and jurisdiction to jurisdiction.
8. Limited Trademark License/Publicity.
During the subscription term set forth in an applicable Service Order, Customer grants ObservePoint a limited, non-exclusive, revocable license to useCustomer’s name and logo to identify that Customer uses the ObservePointServices (“Limited Trademark License”) on the ObservePoint website and/or in presentations, marketing materials and links to Customer landing pages. To the extent that Customer is an agency or consultant of the company that will ultimately benefit from the Services provided hereunder, thenCustomer agrees that it has secured from its client a right and license forObservePoint to use such client’s name and logo in connection withObservePoint’s marketing and to identify such client as an ObservePointCustomer. Upon termination of this Agreement, the foregoing Limited TrademarkLicense shall automatically terminate, provided however, that ObservePoint shall be allowed to continue using a Customer’s name and logo on any hardcopy marketing materials that were already in existence on the date of termination.
If any provision of this Agreement is invalid, illegal, or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted.The remainder of the Agreement shall be valid and enforceable to the maximum extent possible.
This Agreement may not be assigned by either Party without the other Party’s prior written approval, except that ObservePoint may assign its rights pursuant to this Agreement in connection with any merger or reorganization involvingObservePoint or any sale or transfer of all or substantially all ofObservePoint’s assets or stock. Subject to the foregoing, this Agreement shall be binding upon the Parties, and upon their heirs, acquirers, executors, personal representatives, administrators, and assignees.
11. Indemnification, Limitation of Liability
11.1. ObservePoint Indemnified. Customer shall indemnify, defend and hold harmless ObservePoint and its affiliates and their respective officers, directors, employees, agents and contractors, from and against, and pay any amounts finally awarded or agreed to in settlement of, any and all third party claims to the extent based upon (i) the negligence and/or willful misconduct ofCustomer, or misuse of content, in connection with this Agreement, (ii) any allegation that the Customer Data or other information or content provided byCustomer, or Customer’s alteration or combination of the Services with third party content, infringes such third party’s rights, (iv) Customer’s reliance on the Services to be in compliance with any law, regulation or other governmental requirement, or (v) any breach of Sections 5.2 and 6.
11.2. Customer Indemnified. ObservePoint shall indemnify, defend and hold harmless Customer and its affiliates and their respective officers, directors, employees, agents and contractors, from and against, and pay any amounts finally awarded or agreed to in settlement of, any and all third party claims to the extent such claims are based upon (i) the negligence and/or willful misconduct of ObservePoint in performing this Agreement, (ii) any allegation that the software underlying the Platform, when used as provided and in accordance with the terms and conditions of this Agreement, infringes such third party’s intellectual property rights, or (iii) ObservePoint’s violation of any applicable law in the provision of Services hereunder.
11.3. Indemnification Procedures. In all requests for indemnification underSections 11.1 and 11.2 above (i) the Party seeking indemnification shall promptly provide the indemnifying Party with written notice thereof and, at the indemnifying Party’s request and expense, reasonable cooperation, information, and assistance in connection therewith; and (ii) the indemnifying Party shall have sole control and authority with respect to the defense, settlement, or compromise thereof, provided that it shall not settle any such claim without prior written consent of the indemnified Party, which consent shall not be unreasonably withheld, conditioned, or delayed. If a court of competent jurisdiction makes a final determination in a case that ObservePoint andCustomer share liability for all or part of any injury, loss, claim, or damages to a third-party, then each Party shall bear its respective comparative fault share of the damages, and each Party shall also pay their respective attorneys’ fees, costs and expenses incurred. If such claims are settled with no judicial determination of comparative fault, then the Parties agree to determine their comparative fault prior to any settlement.
11.4. LIMITATION OF LIABILITY. EXCEPT IN THE EVENT OF GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR BREACH OF CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR INDIRECT, SPECIAL, PUNITIVE,CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES TO PROPERTY, DAMAGES FOR LOSS OF USE, LOSS OF TIME, LOSS OF PROFITS OR INCOME,LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION,EXCEPT FOR INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 11.1 OR 11.2 ABOVE,UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THREE TIMES THE FEES ACTUALLY COLLECTED FROM CUSTOMER (OR,WITH RESPECT TO CUSTOMER’S LIABILITY, AN AMOUNT EQUAL TO THE TOTAL COST OF THE SERVICES) FOR THE SERVICE ORDER(S) FOR WHICH CLAIMS ARE MADE. FOR CLARIFICATION, OBSERVEPOINT DOES NOT PROVIDE LEGAL ADVICE AND ASSUMES NO RESPONSIBILITY OR LIABILITY FOR ACTIONS TAKEN BY CUSTOMER BASED ON THE SERVICES PROVIDED INCLUDING CUSTOMER’S ACTIONS TO BE IN COMPLIANCE WITH ANY LAWS,REGULATIONS OR OTHER GOVERNMENTAL REQUIREMENTS. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN DAMAGES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER. CUSTOMER MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
12. Independent Contractors.
ObservePoint and Customer are independent contractors, and nothing in thisAgreement shall be deemed to create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between theParties. Neither Party is an agent or representative of the other nor is eitherParty authorized to, and shall not, make any warranties or representations or assume or create any other obligations on behalf of the other.
13.1. Confidential Information. Each Party (each a “Discloser”) agrees that, in the course of performing its obligations hereunder, either might provide to the other (the “Recipient”) or develop information identified as confidential or that reasonably could be construed as confidential (“ConfidentialInformation”). ObservePoint’s Confidential Information shall include, but shall not be limited to, ObservePoint’s trade secrets, know-how, user manuals and screens, service development plans, service specifications, computer programs, marketing plans, pricing, and financial data; and Customer’s ConfidentialInformation shall include, but shall not be limited to, raw Customer Data (excludingUsage Data to the extent not embodying raw Customer Data), billing information and systems. During the Term of this Agreement and at all times thereafter, theRecipient and its employees and agents shall maintain the confidentiality of the Confidential Information and not sell, license, publish, display ,distribute, disclose or otherwise make available the Confidential Information to any third party nor use such Confidential Information except, in either case, as authorized by this Agreement or in connection with the performance or enforcement of this Agreement. The Recipient shall not disclose any suchConfidential Information to persons not an employee or agent of Recipient nor to its affiliates without the prior written consent of the Discloser. Any misuse or breach hereof must be reported promptly. Nevertheless and notwithstanding the foregoing statement, each Party will attempt to comply with legally executed subpoena served upon such Party.
13.2. Caveats. The non-use and non-disclosure obligations of this Section 13shall not apply to any information that (a) was already known to the Recipient at the time of disclosure, (b) was already in the public domain at the time of disclosure, or (c) was received or developed by the Recipient independent of any information received from the Discloser. Recipient may disclose information pursuant to a request under applicable law. Unless prohibited by law, if the information requested is Discloser Confidential information,Recipient shall notify Discloser of the request and give Discloser a reasonable opportunity to establish that the Discloser Confidential Information is exempt from disclosure under one or more exemptions under applicable law.
14. Compliance with Laws.
The Parties shall, in the performance of all obligations hereunder, fully comply with all applicable international, Federal, State and local laws, ordinances, treaties, rules, regulations, orders and policies applicable to or binding upon them.
15. E-Business Activities.
Either Party may use a third party service provider in connection withe-business activities (e.g., to route or translate EDI or XML messages, or to host web based services). The Party contracting with a service provider must require that such service provider (a) use information disclosed to or learned by such service provider in connection with providing services solely for the purpose of providing the applicable services, and (b) not disclose such information to any third party. Each Party will be liable for the acts or omissions of its service provider in connection with activities contemplated by this Agreement.
The provisions of this Agreement that are intended to survive termination or expiration of this Agreement in order to achieve the fundamental purposes of this Agreement will survive termination or expiration, including without limitation Sections 2.4,3.1, and 9 – 22.
17. Entirety of Agreement.
The Parties agree that this Agreement is the complete and exclusive statement of the agreement between the Parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral or written, between the Parties relating to the subject matter of this Agreement. ThisAgreement may not be superseded, modified, extended or amended by Customer through any electronic communication, language contained in purchase order(s),“shrink-wrap”, “click-wrap”, or any other terms and conditions unless agreed to in writing and signed by both Parties.
18. Force Majeure.
Except for any obligation to pay amounts due, either Party hereto will be temporarily excused from performance hereunder, in whole or in part, for any period of time that the Party is prevented from performing its obligations as a result of an act of God, governmental regulation or act, war, natural catastrophe, civil disobedience, court order, or other cause beyond the Party’s reasonable control. Such non-performance will not constitute grounds for default.
19. Governing Law.
This Agreement is made in accordance with and is governed and construed underThe Laws of The State of Utah, without reference to such state’s conflicts of laws principles. Customer consents to the sole jurisdiction and venue of the state or federal courts of Salt Lake City, Utah for actions related to the subject matter hereof, to the extent permitted pursuant to Section 21, and irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar ground. The United Nations Convention on Contracts for theInternational Sale of Goods or the Uniform Commercial Code or similar statutes shall not apply with respect to this Agreement.
20. Legal Advice.
Customer acknowledges and agrees that ObservePoint has not and will not provideCustomer with any legal advice and specifically ObservePoint has not given legal advice regarding relevant laws, rules, or regulations in the jurisdictions in which Customer uses the Services nor will Customer construe any ObservePoint communications as legal advice.
Except as set forth below, the Parties shall settle any controversy arising out of this Agreement by arbitration in Salt Lake City, Utah in accordance with theCommercial Arbitration Rules of the American Arbitration Association. A single arbitrator shall be agreed upon by the Parties or, if the Parties cannot agree upon an arbitrator within thirty (30) days, then the Parties agree that a single arbitrator shall be appointed by the American Arbitration Association.The arbitrator may award attorneys’ fees and costs as part of the award. The award of the arbitrator shall be binding and may be entered as a judgment in any court of competent jurisdiction. No arbitration or other action under thisAgreement, unless involving death or personal injury, may be brought by eitherParty against the other more than one (1) year after the cause of action arises. Notwithstanding the foregoing, either Party may, at its sole discretion, seek preliminary judicial relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief)and, additionally, the provisions of this Section may be enforced by any court of competent jurisdiction.
Each Party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms and conditions. Further, it represents that it has consulted, or has had the opportunity to consult with its legal, tax, and financial advisors in connection with the execution and performance of theAgreement. Customer understands and agrees that except as expressly set forth in Section 4.4, ObservePoint offers no buy-backs, money back guarantees, or refunds. Customer acknowledges and agrees that Customer is not relying upon any verbal or written representations whatsoever, except as expressly set forth in this Agreement. Customer acknowledges and agrees that ObservePoint does not guarantee or represent that any software or services conveyed or provided hereunder, when or where accessed, used, provided, or installed, will guarantee any results.
23. Updates and Modifications.
ObservePoint reserves the right at any time to modify this Agreement inObservePoint’s sole discretion without additional liability to Customer. ThisAgreement, as amended, will be effective upon signing the Service Order for new users and effective for all existing users 15 days after the posting of any amended terms on the ObservePoint.com website. Customer agrees to be bound by this Agreement, as modified. Please review the most current version of this Agreement from time to time, located athttp://www.observepoint.com/service-agreement (or such successor URL asObservePoint may provide), so that you will be apprised of any changes.