Last Modified: 2 April 2021
PLEASE READ THESE TERMS OF SERVICE CAREFULLY.
This is a contract between you (the Customer) and us (Whitebox Decisions, Inc.), the provider of the Cloverpop app. It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. It is a legal document so some of the language is “legalese” but we have made it as readable as possible. By using our services, you are agreeing to these terms.
We reserve the exclusive right to modify or update these terms and make changes to or discontinue any or all of our programs, products and services without providing further notice.
Terms used but not defined in these Terms of Service have the meaning given to them in any applicable Sales Order.
"Agreement" means these Terms of Service, any applicable Sales Order and all materials referred or linked to herein.
“Billable Users” means those types of Users for which we charge you fees.
"Billing Period" means the period for which you agree to pay fees under a Sales Order.
"Whitebox", "Cloverpop", "we", "us" or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section of the ‘General Terms’.
"Communication Services" means third-party instant message services, forums, online communities, blogs, personal web pages, calendars, and/or other social media communication facilities (such as Slack, Microsoft Teams, Facebook, Twitter and LinkedIn) linked to or from the Free Service or Subscription Service that enable you to communicate with the public or with a private group.
“Confidential Information” means any nonpublic information of a party (the “Discloser”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Recipient”) knows or should have known is the confidential or proprietary information of the Discloser. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, or (ii) was known to the Recipient before receipt from the Discloser without obligation of confidentiality; (iii) is independently developed by the Recipient without access to or use of the Discloser’s Confidential Information; or (iv) is lawfully received from a third party without obligation of confidentiality.
"Consulting Services" means the professional services provided to you by us, which may include training, enablement, configuration, integration, strategy or other consulting services.
"Customer Data" means all information that you submit or collect via the Free Service or Subscription Service, including but not limited to decisions you create, files you upload and account information.
“Decider” means those types of Billable Users who can create and manage decisions and act as an administrator of the Free Service or Subscription Service for Customer.
“Free Service” means the Subscription Service or other products or features made available by us to you on an unpaid trial or free basis.
“Org” means a separate instance of the Free Service or Subscription Service for use by the Customer.
“Platform Fee” means the annual fee for the Customer to access the Subscription Service, billable per Org.
"Sales Order" means the Whitebox-approved form or online subscription process by which you agree to subscribe to the Subscription Service and purchase Consulting Services. Sales Orders may be completed through a signature process or via an online process or via an in-app purchase. The purchase form may be referred to as a "Statement of Work" if you are purchasing only Consulting Services.
"Sensitive Information" means credit or debit card numbers; personal financial account information; Social Security numbers; passport numbers; driver’s license numbers or similar identifiers; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to regulations, laws or industry standards designed to protect data privacy and security, such as the Health Insurance Portability and Accountability Act and the Payment Card Industry Data Security Standards.
"Subscription Fee" means the amount you pay for the Subscription Service.
"Subscription Service" means our web-based platform, applications and tools to which you have subscribed by a Sales Order, or that we otherwise make available to you, developed, operated, and maintained by us, accessible via Slack, Microsoft Teams, https://app.shxmfdc.com or another designated URL or app platform.
"Subscription Term" means the Initial Subscription Term (as defined in Section 6(a) of these Terms) and all Renewal Subscription Terms (as defined in Section 6(b) of these Terms).
"Third-Party Products" means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Free Service or Subscription Service.
"Third-Party Sites" means third-party websites linked from within the Free Service or Subscription Service, including Communications Services.
"Users" means your employees, representatives, consultants, contractors or agents who are ized to use the Free Service or Subscription Service for your benefit and have unique user identifications and passwords for the Free Service or Subscription Service.
"You", "your" or “Customer” means the person or entity using the Free Service or Subscription Service or receiving the Consulting Services and identified in the applicable billing statement, online signup or subscription process, Sales Order or Statement of Work as the customer.
2. The Free Service and Subscription Service
a. Access. During the Subscription Term, we will provide you access to use the Free Service or Subscription Service as described in, and pursuant to the terms of, this Agreement.
b. Limits. Sales Orders may include limits that apply to your use of the Services in addition to those set forth in these Terms of Service.
c. Modifications. We modify the Free Service and Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience. But we will not make changes to the Subscription Service that materially reduce the functionality of the Subscription Service provided to you during the Subscription Term. We may provide some or all elements of the Free Service and Subscription Service through third party service providers.
d. Additional Features. We may offer additional features for existing services in the future that complement or are similar to the Free Service or Subscription Service but are not included in the Subscription Fee (“Additional Services”). You may subscribe to Additional Services by agreeing to a new Sales Order. We have no obligation or duty to provide you Additional Services.
3. Customer Support
a. Support. The support described in this section is included in your Subscription Fee. Live chat or webform support for the Subscription Service is available 8AM to 5PM Pacific Time (GMT-5), Monday through Friday, excluding US national holidays. We accept webform support questions 24 Hours per Day, 7 Days per Week at https://cloverpop.zendesk.com. Webform responses are provided during live support hours only. We attempt to respond to webform support questions within one business day; in practice, our responses are generally faster.
b. Availability. The Subscription Service will be made available at an uptime rate of 99.9%, except for planned down-time for maintenance.
4. Consulting Services
You may purchase Consulting Services through a Statement of Work, which will describe the Consulting Services, including fees and terms. Fees for any Consulting Services are in addition to your Subscription Fee.
5. Fees and Payments
a. Subscription Fees. The Subscription Fee will remain fixed during the Subscription Term unless you: (i) exceed your contracted number of Billable Users, or other applicable limits, (see Section 2.b. above), (ii) upgrade products, or (iii) subscribe to additional services or products. Where a price change applies to you, we will charge or invoice you under the new price structure as outlined in Section 5.b. below. We may monitor or remotely audit the number of Billable Users of the Free Service and Subscription Service.
b. Fee Adjustments During a Billing Period. If you exceed your contracted number of Billable Users during a Billing Period, your Subscription Fee will increase to correspond with your maximum Billable Users on a pro-rated basis. The Subscription Fee will also increase during a Billing Period if you exceed other applicable limits, change products or subscribe to additional services for use during the Billing Period.
c. Payment by Credit Card. If you are paying by credit card, you ize us to charge your credit card or bank account for all fees payable during the Subscription Term. You further ize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
d. Payment Against Invoice. If you are paying by invoice, we will invoice you on the Effective Date and each subsequent Billing Period, and other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Sales Order.
e. Payment Information. You will keep your contact information, billing information and credit card information (as required) up to date. Where applicable, changes may be made within your Cloverpop account. All payment obligations are non-cancelable, and all amounts paid are non-refundable, except as specifically provided for in this Agreement.
f. Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and the performance of Consulting Services, except for any taxes based upon our gross revenues or net income. If you are required to deduct or withhold any tax from your payment of fees to us, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
6. Subscription Term and Renewal
a. Initial Subscription Term. The initial subscription term shall begin on the start date of your initial subscription period and expire at the end of the period ("Initial Subscription Term").
b. Renewal Subscription Term. Unless one of us gives the other written notice that it does not intend to renew the subscription, this Agreement will automatically renew for the shorter of the Initial Subscription Term or one year ("Renewal Subscription Term"). Written notice of non-renewal must be sent no less than forty-five (45) days in advance of the end of the Subscription Term, unless otherwise set forth in your Sales Order. Unless otherwise specified, the Renewal Subscription Term will be under the terms and conditions of this Agreement, subject to any renewal pricing provided for in your Sales Order; provided that we may in our discretion increase prices by 10% or less. See the ‘Limits’ section above for the applicability of product usage limits on renewal. Should you decide not to renew, you may send the notice of non-renewal by email to email@example.com.
c. End of Subscription Term. The Subscription Term will expire on the end date provided in the Sales Order and cannot be canceled before its expiration.
7. Whitebox's Proprietary Rights
This is an Agreement for access to and use of the Free Service or Subscription Service, and you are not granted any right, title or interest in or to any of Whitebox's intellectual property, including without limitation its software, by this Agreement, except as otherwise expressly provided herein. The Free Service, Subscription Service and Consulting Services are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them, including without limitation rights to copy, rent, lease, sell, distribute, or create derivative works based on the Free Service, Subscription Service, or the Consulting Services in whole or in part, by any means.
We encourage all customers to comment on the Free Service, Subscription Service or Consulting Services and provide suggestions for improving them. You agree that all such comments and suggestions will be non-confidential and that we own all rights to them, including the right to use and incorporate them into the Free Service, Subscription Service or Consulting Services, without payment or attribution to you.
8. Customer’s Proprietary Rights
As between the parties, you own and retain all rights to the Customer Data. Notwithstanding the foregoing, you grant a worldwide, non-exclusive, royalty-free, transferable, sub-licensable license to us and our licensors and our service providers to use, reproduce and modify the Customer Data to provide the Free Service, Subscription Service and Consulting Services to you and as permitted by this Agreement. If you are using the Free Service or Subscription Service or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
The Recipient will not use or disclose any Confidential Information except for the purposes described herein and will protect the Discloser’s Confidential Information using the same degree of care that it uses with respect to its own Confidential Information, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances. The Recipient will take prompt and appropriate action to prevent unized use or disclosure of the Discloser’s Confidential Information. If any Confidential Information must be disclosed to any third party by reason of legal, accounting or regulatory requirements, the Recipient will promptly notify the Discloser of the order or request and permit the Discloser (at its own expense) to seek an appropriate protective order.
10. Customer Responsibilities
To realize the full value of the Free Service, Subscription Service and Consulting Services, your participation and effort are important. Resources that we may request could include an Executive Sponsor, one or more Deciders, a Team Administrator, an Account Administrator, and a Technical Resource. Actions and decisions that you may be asked to take and make could include identifying and framing goals and decisions, reviewing analysis of individual and team decisions, acting as internal liaison between business units or departments, and supporting the integration of the Free Service, Subscription Service with other processes and systems. You understand that failure to comply with our requests for resources, actions or decisions could result in diminished functionality of the Services for which we are not responsible.
You grant us the right to add your company’s name and logo to our customer list and website.
12. Customer Data
b. Aggregate Data. We may monitor use of the Free Service and Subscription Service and use Customer Data gathered in an aggregate and anonymous manner. You agree that we may use and publish aggregate analyses of such Customer Data, provided that such information does not incorporate any specific Customer Data and/or identify you.
d. No Sensitive Information. YOU AGREE NOT TO USE THE FREE SERVICE OR SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE FREE SERVICE OR SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
e. Review. You acknowledge, consent and agree that Whitebox may access, preserve and disclose your account information and your Customer Data if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (i) comply with legal process, (ii) enforce the Agreement, (iii) respond to claims that any of your Customer Data violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Whitebox, Cloverpop users and the public.
f. Whitebox and the Cloverpop app follow the process establish by the Digital Millennium Copyright Act (DMCA) to address claims of copyright infringement as described in our DMCA Policy.
13. Use and Limitations of Use
a. Acceptable Use. You are solely responsible for your conduct (including by and between all Users), the content of your Customer Data, and all communications with others while using the Free Service or Subscription Service. You acknowledge that Whitebox has no obligation to monitor any information on the Free Service or Subscription Service. We are not responsible for the accuracy, appropriateness, or legality of your Customer Data or any other information you and your Users may be able to access using the Free Service or Subscription Service.
As part of the account registration process, Users will identify a user name (in the form of an email address) and a password. Deciders may use these credentials to invite other Users to weigh in on decisions, each with their own user name and password. You are responsible for maintaining the confidentiality of your login, password, and account, and for all activities that occur under your login or account.
You will notify us right away of any security breach of the Free Service or Subscription Service or any unized use of your Users’ identifications and passwords or your account by sending an email to firstname.lastname@example.org.
Customer is solely responsible for informing Users of the applicable company policies, obtaining any legally required member consent to such policies, and for ensuring that all uses of the Free Service or Subscription Service comply with applicable federal, state and/or international privacy laws, including but not limited to, the Electronic Communications Privacy Act, 18 U.S.C. § 2510 et seq.
b. Prohibited and Unized Use. You and your Users will not: (i) use or launch any automated system, including, "robots," "spiders," or "offline readers," that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser, (ii) use the Free Service or Subscription Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party's use of the Free Service or Subscription Service, (iii) attempt to gain unized access to the Free Service or Subscription Service, (iv) access the Free Service or Subscription Service other than through our interface or supported integrations, or (v) use the Free Service or Subscription Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.
You and your Users also agree not to: (i) upload, post, transmit, or otherwise make available any Customer Data that is unlawful (ii) use the Free Service or Subscription Service to harm minors in any way, (iii) impersonate any person or entity, including, but not limited to, a Whitebox employee, a Decider, or a Team Member, or falsely state or otherwise misrepresent your affiliation with a person or entity, (iv) manipulate identifiers in order to disguise the origin of any Customer Data, (v) upload, post, transmit, or otherwise make available any Customer Data that you do not have a right to make available under any law or under contractual or fiduciary relationships, (vi) upload, post, transmit or otherwise make available any Customer Data in a manner that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, (vii) sublicense, resell, rent, lease, transfer or assign (except as permitted in Assignment) the Free Service or Subscription Service or its use, or offer the Free Service or Subscription Service on a timeshare basis to any third party, (viii) use the Free Service or Subscription Service to upload, post, transmit, or otherwise make available any software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware, (ix) intentionally or unintentionally violate any applicable local, state, national or international law in connection with your use of the Free Service or Subscription Service, including, but not limited to, any data, privacy, or export control laws, or regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange, or the NASDAQ, and any regulations having the force of law, or (x) use the Free Service or Subscription Service to provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act.
14. Representations and Warranties; Disclaimer of Warranties
a. ity. Each party represents and warrants to the other that it has full power and ity to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
b. Your Representations and Warranties to Us. You represent and warrant to Whitebox that (i) you own all your Customer Data or have obtained all permissions, releases, rights or licenses required to engage in your activities (and allow Whitebox to perform its obligations) in connection with the Free Service or Subscription Service without obtaining any further releases or consents, and (ii) your Customer Data and your other activities in connection with the Free Service or Subscription Service, and Whitebox's exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does your Customer Data contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing.
c. Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE FREE SERVICE OR SUBSCRIPTION SERVICE, DATA MADE AVAILABLE FROM THE FREE SERVICE, SUBSCRIPTION SERVICE OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE FREE SERVICE, SUBSCRIPTION SERVICE AND CONSULTING SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE FREE SERVICE, SUBSCRIPTION SERVICE AND THE CONSULTING SERVICES INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
d. Security. Whitebox and the Cloverpop app shall maintain physical and information systems safeguards to protect Customer Data in its possession or under its control from unized access by or disclosure to third parties. Whitebox and is responsible for the backup of Customer Data on Cloverpop for disaster recovery purposes and the deletion of such backups. Whitebox will make its Cloverpop SOC report available to Customer upon request.
15. Third-Party Sites and Products
a. Your Indemnification Obligations. You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (i) unized or illegal use of the Free Service or Subscription Service by you, (ii) your noncompliance with or breach of this Agreement, (iii) your use of Third-Party Products, or (iv) the unized use of the Free Service or Subscription Service by any other person using your User information. We will notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us, (ii) requires us to make an admission, or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
b. Our Indemnification Obligations. We will indemnify, defend and hold you harmless, at our expense, against any Action brought against you by a third party not affiliated with you to the extent such claim or action is based on an assertion that your use of the Free Service or Subscription Services infringes any patent, copyright, license or other proprietary right of any third party. You will notify us in writing within thirty (30) days of our becoming aware of any such claim; give us sole control of the defense or settlement of such a claim; and provide us (at our expense) with any and all information and assistance reasonably requested by us to handle the defense or settlement of the claim. We shall not accept any settlement that (i) imposes an obligation on you, (ii) requires you to make an admission, or (iii) imposes liability not covered by these indemnifications or places restrictions on you without your prior written consent.
17. Limitations of Liability
a. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
b. Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
18. Termination, Suspension and Expiration
a. Termination for Cause. Either party may terminate this Agreement for cause (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
b. Suspension for Prohibited Acts. We may suspend any User’s access to the Free Service or Subscription Service for use of the Free Service or Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement.
c. Suspension for Non-Payment. We may suspend your access to all or any part of the Subscription Service upon thirty (30) days’ notice to you of non-payment of any amount past due. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If the Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.
d. Suspension for Present Harm. If your use of the Free Service or Subscription Service: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Free Service, Subscription Service or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic notice to you, suspend all or any access to the Free Service or Subscription Service. We will try to limit the suspension to the affected portion of the Free Service or Subscription Service and promptly resolve the issues causing the suspension of the Free Service or Subscription Service.
e. Effect of Termination or Expiration. Upon termination or expiration of this Agreement, you will stop all use of the Free Service or Subscription Service. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
f. Retrieval of Customer Data. As long as you have paid all fees owed to us, if you make a written request within thirty (30) days after termination or expiration of your Subscription, we will provide you with temporary access to the Free Service or Subscription Service to retrieve all Customer Data then in our possession or control. If we provide you with temporary access, we may charge a re-activation fee. We may withhold access to Customer Data until you pay any fees owed to us. Thirty (30) days after termination or expiration of your Subscription, we will have no obligation to maintain or provide you the Customer Data and may, unless legally prohibited, delete all Customer Data in our systems or otherwise in our control.
Throughout the term of this Agreement, Whitebox shall procure and maintain insurance coverages of such types and in such amounts as follows: (i) Commercial General Liability Insurance on an occurrence form with Combined Single Limits of at least $1,000,000 per occurrence and $2,000,000 in the aggregate, covering all operations for injury to or death of persons and damage to property, including Fire Legal Liability, Completed Operations and Contractual Liability coverage; (ii) Workers’ Compensation Insurance meeting statutory limits with Employers’ Liability limits of $500,000, each occurrence; (iii) Errors & Omissions Insurance with combined single limit of liability of at least $1,000,000 per claim made, which policy must be maintained for three (3) years after termination of the Agreement; and (iv) Cyber Liability Insurance providing $3,000,000 per occurrence. All policies shall be written by insurance companies licensed to issue policies in the state where the services will be performed. Certificates of Insurance evidencing the insurance requirements above shall be furnished upon request. The Certificates shall provide that there will be no cancellation or modification without thirty (30) days prior written notice to Customer.
a. Amendment; No Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver of any right under this Agreement by any party shall constitute a subsequent waiver of that or any other right under this Agreement.
b. Applicable Law. You are contracting with Whitebox for the Free Service, Subscription Service and Consulting Services, and this Agreement is governed by the laws of the State of Delaware, U.S.A. without reference to conflicts of law principles. For contracts with Whitebox, both parties consent to the exclusive jurisdiction and venue of courts located in Delaware, U.S.A. for all disputes arising out of or relating to the use of the Free Service, Subscription Service or the Consulting Services.
c. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: (i) an act of war, hostility, or sabotage, (ii) an act of God, (iii) electrical, internet, or telecommunication outage that is not caused by the obligated party, (iv) government restrictions, (v) or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
d. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the events giving rise to the cause of action has accrued.
e. Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
f. Compliance with Laws. We will comply with all U.S. state and federal laws in our provision of the Free Service, Subscription Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Free Service, Subscription Service and Consulting Services, including any applicable export laws. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Free Service, Subscription Service or Consulting Services to prohibited countries or individuals or permit use of the Free Service, Subscription Service or Consulting Services by prohibited countries or individuals.
g. Severability. If any part of this Agreement or a Sales Order is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
h. Notices. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of actual receipt.
To Whitebox Decisions, Inc.:
Whitebox Decisions, Inc.
1212 N. Wells St, #904
Chicago, IL 60610
To you: your contact information as provided in our Cloverpop Free or Subscription account information for you. We may give electronic notices by general notice via the Free Service or Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notification preferences of the Free Service or Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
j. Assignment. Neither party may assign or transfer this Agreement without the other party’s prior written consent, which will not be unreasonably withheld. Nonwithstanding the foregoing, either party may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law.
k. No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third-party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
l. Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods.
m. Survival. The following sections shall survive the expiration or termination of this Agreement: 'Definitions', ‘Fees and Payments’, 'Whitebox's Proprietary Rights’, ‘Customer’s Proprietary Rights’, 'Confidentiality', ‘Publicity’, ‘Indemnification’, ‘Limitations of Liability’, ‘Termination, Suspension and Expiration’, and ‘General’.
n. Precedence. In the event of a conflict between the terms of this Agreement and a Sales Order or Statement of Work, the terms of the Sales Order or Statement of Work shall control, but only as to that Sales Order or Statement of Work.