Squelch Hosted Service Terms
(last updated March 19, 2019)
Squelch provides an online software-as-a-service that enables its customers to perform contextual intelligent analysis and search on their corporate data.
The following terms and conditions (the “Service Terms”) are a legal contract between you (or “Customer” as defined below) and Squelch, and governs the use of and access to the Hosted Service by you, your agents and your individual users whether in connection with a paid or free trial subscription to the Hosted Service. By selecting the “agree” or “accept” option or by using Squelch’s Hosted Service that are offered subject to these Service Terms, you are agreeing to be bound by these Service Terms. Please read them carefully before proceeding. If you have any questions please contact us using the contact form at firstname.lastname@example.org or 555 Twin Dolphin Drive Ste 170, Redwood City CA 94065.
In these Service Terms, “Squelch” refers to Squelch, Inc., and “Customer” refers to the subscriber to the Squelch Hosted Service which has agreed to an Order Form or, in the case of an unpaid trial subscription to the Hosted Service, by creating an account to access the Hosted Service. Customer may not use the Hosted Service unless it accepts these Service Terms and has the power and legal right to form a contract with Squelch. Any individual subscribing to or using the Hosted Service in the name of or as part of his or her responsibilities within a company or other organization, or who submits to the Hosted Service data controlled by such company or organization, represents and warrants that he or she is authorized and intends by those actions to bind the company or other organization to these Service Terms.
2.1. “Agreement” means these Service Terms and (if applicable) an Order Form agreed by the parties.
2.2. “Authorized User” means an individual employee or agent of Customer who has been assigned unique credentials to access and use the Hosted Service, whether or not that individual is accessing or using the Hosted Service at any particular time.
2.3. “Customer Access Materials” consists of those API keys, user identification, passwords, and/or URLs (whether for Customer’s proprietary data repository or a third party data repository) necessary to allow Squelch to access the Customer Data.
2.4. “Customer Data” consists of data Customer makes available for processing by the Hosted Service and the results of the Hosted Service’ analysis of the Customer Data.
2.5. “Customer Materials” means the Customer Access Materials and the Customer Data.
2.6. “Hosted Service” means the hosted services for contextual intelligent data analysis and search, to be supplied by Squelch as specified in the Order Form and delivered by Squelch’s cloud platform.
2.7. “Lab Services” means a product, service or functionality provided by Squelch that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description.
2.8 “Local Agent(s)” means the software, in executable form only, which Squelch makes available for download and installation on Customer-controlled computers in order to access local data stores when applicable for Customer’s use of the Hosted Service, and all updates and revisions of such software.
2.9. “Order Form” means Squelch’s online or written order form or account setup form or other written agreement, as submitted by Customer and accepted by Squelch, that specifies the pricing and any commercial terms for the use of the Hosted Service, and that references these Service Terms.
2.10. “Software” means the Local Agent(s) and other Squelch proprietary software and associated documentation, used to provide the Hosted Service.
2.11. “Squelch SDK/API” means any software development kit and application programming interfaces provided by Squelch as a mechanism for access to and utilization of the Hosted Service.
3. HOSTED SERVICE
3.1. Authorization to Use. Subject to Customer’s compliance with the Agreement, Squelch will provide Authorized Users with access to and use of the Hosted Service which Customer has purchased and for which Customer pays, solely for Customer’s internal business purposes and in accordance with Squelch’s relevant end-user documentation. The Hosted Service and Squelch SDK/API may be used only in accordance with the documentation and specifications provided by Squelch. Customer and its Authorized Users will access the Squelch SDK/API and Hosted Service using the login credentials and Squelch SDK/API key(s) assigned by Squelch. Squelch may monitor the use of the Hosted Service to ensure quality, improve Squelch products and services, and verify compliance with the Agreement. The use of the Hosted Service is further subject to any usage limitations indicated in the Order Form or in Squelch’s applicable service description referenced therein or otherwise provided by Squelch.
3.2. License to Local Agent(s). Subject to the terms and conditions of this Agreement, Squelch grants Customer a limited, non-exclusive, non-transferable license to reproduce, install on computers owned or controlled by Customer, and use the Local Agent(s) only for Customer’s internal use in connection with its ordinary business operations using the Hosted Service.
3.3. Maintenance and Support. If the Order Form or Squelch’s associated service description provides for Customer to receive maintenance and/or technical support in connection with the Hosted Service, then (unless otherwise set forth in the Order Form or service description): (a) such maintenance will consist of access to new features or performance improvements in the Hosted Service if and when Squelch makes any such features or improvements generally available to its subscriber base at no additional charge, and (b) such technical support will consist of e-mail, chat or telephone assistance in accordance with Squelch’s then-current policies.
3.4. Restrictions. Customer may not: (a) copy, reproduce, modify, decompile, disassemble, or reverse engineer the Hosted Service, Platform Software or any other associated software or materials (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (b) provide any third parties with direct access to the Squelch SDK/API, Hosted Service or Platform Software; (c) provide any third parties with access to any of the Hosted Service or Platform Software, or use any of the Hosted Service for time sharing or similar purposes for the benefit of any third party, including without limitation by selling, renting, licensing or otherwise disclosing any elements of the Hosted Service; (d) remove any copyright or proprietary notices contained in the Hosted Service; (e) breach, disable or tamper with, or develop, use or attempt any workaround for, any security measure or monitoring system provided or used by Squelch in connection with the Hosted Service or Squelch SDK/API; (f) access the Hosted Service via any automated system, web crawler or non-human user other than access through and as implemented in the Squelch SDK/API; (g) introduce into the Hosted Service any software, virus, worm, “back door,” Trojan Horse, or similar harmful code; (h) access or use (or permit a third party to access or use) the Hosted Service for any unlawful purpose or for purposes of monitoring the availability, performance or functionality of the Hosted Service or for any other benchmarking or competitive purposes; or (i) interfere or attempt to interfere in any manner with the proper workings of the Squelch SDK/API or Hosted Service, or engage in any activities that adversely affect the functionality or performance of the Squelch SDK/API or Hosted Service. All rights in the Hosted Service and Platform Software not expressly granted herein are reserved.
3.5. Third Party Integrations. Squelch may offer Customers the option of sending data and information to, and receiving data and information from analytics or other services provided by third parties (“Third Party Integration Providers”). Such functionality may be subject to the payment of additional fees if not part of Squelch’s standard offering. Customer is solely responsible for establishing a contractual relationship with any such Third Party Integration Providers and complying with the terms of such contractual relationship. Squelch shall not be responsible or liable for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data or any other harm to Customer or any other party caused by any Third Party Integration Providers, including without limitation, by Squelch’s integration with such Third Party Integration Providers and the use of any data or information received from such Third Party Integration Providers. If Customer has activated the Salesforce Third Party Integration, the Supplemental Salesforce Integration Terms apply.
3.6. Evaluation. Any free trial or evaluation of the Hosted Service is provided free of charge only until the earlier of (a) the end of the free trial period Squelch has identified; (b) the start date of any subscription to such Hosted Service purchased by You; or (c) termination of the trial period by Squelch in its sole discretion. Trial or evaluation may be subject to additional terms and conditions presented in the relevant Order Form or trial/evaluation signup process. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Squelch stores Customer Data submitted by Customer during trials or evaluations of the Hosted Service in the same manner and subject to the same security precautions as Customer Data submitted during paid subscriptions; provided, however, that any Customer Data stored in the Hosted Service, and any configurations or customizations made to the Hosted Service by or for Customer, during a trial or evaluation period will be permanently lost at the end of the trial or evaluation unless Customer purchases a subscription to the Hosted Service or exports such Customer Data (to the extent such functionality is available), before the end of the trial or evaluation.
3.7. Lab Services. . From time to time, Squelch may make Lab Services available to Customer at no charge. Customer may choose to try such Lab Services in its sole discretion. Lab Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Lab Services are not considered a “Hosted Service” under this Agreement; however, all restrictions, disclaimers, Squelch’s reservation of rights and Customer’s obligations concerning the Hosted Services shall apply equally to the use of Lab Services. Unless otherwise stated, any Lab Services trial period will expire upon the earlier of (a) twelve (12) months from the trial start date or (b) the date that a version of the Lab Services becomes generally available without the applicable Lab Services designation. Squelch may discontinue or change Lab Services at any time in Squelch’s sole discretion and may never make them generally available.
4. CUSTOMER OBLIGATIONS
4.1. Responsibilities in Using Hosted Service. Customer is responsible for: (a) maintaining the confidentiality of any user IDs, passwords and other credentials associated with its Hosted Service account, (b) all activities that occur with respect to Customer’s account, (v) Customer’s use of the Hosted Service and compliance with the Agreement, and (d) the Customer Materials, and any other information Customer provides to Squelch through any mechanism. Customer is and shall remain liable for all actions and omissions of its Authorized Users hereunder or under any applicable separate agreement.
4.2. Compliance. Customer shall use the Hosted Service exclusively for proper and legal purposes. In connection with its use of the Hosted Service and all instructions to Squelch concerning the processing of data using Hosted Service, Customer will comply with all applicable laws, regulations, the rights of others, and all policies of and Customer agreements with the owner or operator of any platform with which Customer integrates (or requests that Squelch integrate) the Hosted Service. Customer shall not use the Hosted Service to collect or process any data in the “special categories of personal data” under the General Data Protection Regulation (Regulation (EU) 2016/679), or that is otherwise subject to heightened restrictions relating to the transmission or processing of data for the jurisdictions in which Squelch and Customer operate, such as (by way of example only) the Health Insurance Portability and Accountability Act, the Children’s Online Privacy Protection Act, and the standards promulgated by the PCI Security Standards Council. Customer shall not use the Services to transmit any bulk unsolicited commercial communications.
4.3. Use Obligations. Customer shall not directly or indirectly, in connection with the use of the Hosted Service: (a) facilitate or promote illegal activity, or distribute illegal content; (b) infringe upon or violate any right of any third party, including, without limitation, any intellectual property, privacy, or publicity rights; or (c) communicate with or collect information from children under the age of 16 years.
4.4. Correction; Suspension. If Customer’s use of the Squelch SDK/API or Hosted Service is deemed by Squelch, in its sole discretion, to not meet the letter or spirit of the standards set forth in the Agreement, Squelch may request that Customer make changes to bring its practices into compliance. If Customer fails to make the necessary changes immediately upon request, and without limiting any of the other remedies available to Squelch at law or in equity, Squelch is authorized to suspend Customer’s access to the Hosted Service, without liability to Customer. Customer agrees and acknowledges that Squelch shall have the right to monitor Customer’s use of the Squelch SDK/API and Hosted Service from time to time. Squelch reserves the right to immediately suspend, in whole or in part, Customer’s access to the Hosted Service and Squelch’s provision of the Hosted Service in order to prevent imminent harm to Squelch or a third party.
5. DATA, CUSTOMER LICENSES AND OWNERSHIP
5.1. Customer Access Materials. Customer hereby grants to Squelch a limited, non-exclusive, worldwide, royalty-free license to use the Customer Access Materials solely in connection with the provision of the Service to Customer.
5.2. Customer Data. Customer hereby grants to Squelch a royalty-free, worldwide, perpetual, irrevocable and fully transferable right and license to use both (a) internal Hosted Service analytic and log data regarding the processing of Customer Data and use of the Hosted Services, and (b) Customer Data solely in a de-identified, aggregated form (in which neither an individual person nor Customer can feasibly be identified), to improve the Hosted Service, including in connection with the improvement of user interface and experience, and the creation and development of analytical and statistical analysis tools related to collected data.
5.3. Personal Data. Any Customer Data consisting of personally identifiable information or personal data, as such term is defined under the EU General Data Protection Regulation 2016/679 (“Personal Data” and “GDPR” respectively), and the processing thereof, shall be governed under the terms and conditions set forth in the Squelch Data Processing Agreement (“DPA”). A current version of the DPA is available at https://www.squelch.io/about-us/dpa/. Squelch shall provide prior notification to Customer in writing of any material change to the DPA while Squelch retains Personal Data made available by Customer. The DPA is an integral part of these Service Terms and the agreement between Customer and Squelch. Unless otherwise explicitly agreed in writing by the parties, it is agreed and acknowledged that with respect to any Personal Data, Customer shall be deemed the data controller and Squelch shall be deemed the data processor (as such terms are defined under the GDPR and the DPA).
5.4. Treatment of Customer Materials. Customer is ultimately responsible for making and keeping current copies of all Customer Materials and related information. Squelch will retain Customer Materials subject to any time or storage limitations set forth in the relevant Order Form for the Hosted Service, and may delete or decline to store Customer Materials older than the prescribed age for deletion, or in excess of the disclosed storage limitation. Squelch will use reasonable industry standard security procedures to prevent unauthorized disclosure of or access to the Customer Materials, and will not disclose the Customer Materials to any third party except (a) as directed by Customer, (b) if such disclosure is made by Squelch in response to a court order, subpoena or other legal process, and provided that Squelch has given Customer reasonable notice of such court order, subpoena or other legal process, (c) if such disclosure is made to Squelch’s service providers in order for such service providers to assist Squelch in the operation of the Squelch Service as provided to Customer, or (d) if such disclosure is in aggregate non-personally identifiable form.
5.5. Ownership; Feedback. Squelch agrees that as between Squelch and Customer, Customer will own the Customer Materials. As between Squelch and Customer, the Hosted Service and all software, data and technologies embodied in or used to provide the Hosted Service, including data and information that is not Customer Data, and all intellectual property rights in or relating to any of the foregoing, is owned by Squelch. Customer and / or authorized Users may choose to submit comments, suggestions, enhancement requests, or recommendations (collectively, “Feedback”) about the Hosted Service or other Squelch offerings. Squelch shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate any Feedback into the Hosted Service or other Squelch offerings.
6. PROFESSIONAL SERVICES
6.1. Provision of Services. If indicated in the Order Form, and subject to Customer’s timely payment of all corresponding fees, Squelch will provide Customer with the initial assessment and implementation services, consulting services, and/or other professional services that are specified in the Order Form (and any applicable service description referenced therein) in connection with Customer’s use of the Hosted Service. Customer will provide such cooperation and assistance as Squelch may reasonably request in order to facilitate the performance of any such professional services.
6.2. Contacts. Each party will designate in writing the individual who will be its primary point of contact for matters relating to any professional services to be performed thereunder. A party may designate replacement contacts by written notice to the other party.
6.3. Deliverables. If any professional services involve the delivery of reports, documents or other deliverables, Customer will be free to use such deliverables for its internal business purposes, subject to the applicable confidentiality provisions of this Agreement. The parties acknowledge, however, that the professional services do not involve any custom development, and will not be construed as transferring (or as requiring Squelch to transfer) to Customer any intellectual property rights in any deliverables or other work product.
7. TERM AND TERMINATION
7.1. Duration and Renewal. Your right to use the Hosted Service under the Agreement shall continue throughout the initial subscription term specified in the Order Form (unless terminated as set forth below). If no initial subscription term is specified in the Order Form, the initial subscription term will be one (1) year from the effective date of the Order Form. Except as otherwise specified in the Order Form, Customer’s subscription to the Hosted Services will automatically renew for successive one (1) year terms (each, a “Renewal” and together with the initial term, the “Term”) until either party notifies the other of its intent not to renew thirty (30) days prior to the end of the then current or terminates the Agreement under Section 7.2 below.
7.2. Termination. A party may terminate these Service Terms for a material breach by the other party that remains uncured more than 7 days after receiving written notice of the breach. Customer’s right to use the Hosted Service will automatically terminate upon any termination of the Agreement.
7.3. Survival. The following provisions will survive expiration or termination of the Agreement: Sections 1, 2, 3.4, 5, 7.3, 10 (to the extent of any outstanding payments), and 11 through 15.
8. FEES AND PAYMENT
8.1. Fees. In consideration for Squelch providing the Hosted Service and any agreed-upon professional services, Customer shall pay to Squelch the corresponding fees set forth in the Order Form. Squelch may change the fees for the use of the Hosted Service effective at any time after the initial subscription term of such Service Exhibit, and unless otherwise agreed by the parties, any such changes will take effect as of the start of the Renewal after notice of such changes.
8.2. Invoices; Payment. Unless otherwise set forth in an Order Form, Squelch shall invoice Customer (a) in for quarterly in advance for fixed monthly fees, and (b) in arrears at the end of each calendar month for the fees accrued during such calendar month. Each invoice is due and payable thirty (30) days following the invoice date. Overdue payments will accrue interest at the rate of one and one half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law.
8.3. Taxes. The fees specified in these Service Terms are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than Squelch’s U.S. federal and state income taxes. Such Taxes will be itemized in the applicable invoice.
9.1. Obligations. “Confidential Information” means (subject to the exclusions below) any non-public information relating to or disclosed in the course of the parties’ respective use and provision of the Hosted Service that should be reasonably understood to be confidential. The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but no less than reasonable care, will not disclose Confidential Information to any third party without prior written authorization, and will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights expressly reserved or granted under these Service Terms. The receiving party will promptly return or destroy the other party’s Confidential Information upon request.
9.2. Exclusions. Confidential Information does not include information that: (a) is or becomes publicly available through no fault of the receiving party; (b) was already in possession of the receiving party without confidentiality restrictions at the time of receipt from the other party, as evidenced by written records; or (c) was independently developed by the receiving party without violation of this Section. If a receiving party is required to disclose Confidential Information by law, the receiving party will promptly notify the disclosing party and reasonably cooperate with its efforts to limit or protect the required disclosure, but will otherwise not be in violation of this Section on account of making the required disclosure.
10. SERVICE LEVEL AGREEMENT
If Customer’s subscription includes service-level commitments, and the Order Form accordingly specifies that Squelch’s Service Level Agreement applies, Customer will be entitled to the commitments and remedies set forth in such Service Level Agreement as attached to or referenced in the Order Form. The remedies expressly provided in the Service Level Agreement are Customer’s sole and exclusive remedy, and Squelch’s entire obligation, with respect to any service-level violation.
11.1. EXCEPT AS EXPRESSLY PROVIDED FOR IN THESE SERVICE TERMS (AND WITHOUT LIMITING REMEDIES TO WHICH CUSTOMER MAY BE ENTITLED UNDER THE SERVICE LEVEL AGREEMENT, IF APPLICABLE), THE HOSTED SERVICE AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. SQUELCH DISCLAIMS, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
11.2 ANY TRIAL OR EVALUATION USE OF THE HOSTED SERVICE OR ANY USE OF LAB SERVICES IS AT CUSTOMER’S OWN RISK. ANYTHING ELSE IN THE AGREEMENT NOTWITHSTANDING, SQUELCH EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS WITH RESPECT TO THE LAB SERVICES, AND THE HOSTED SERVICE WHEN PROVIDED ON A TRIAL OR EVALUATION BASIS, AND WILL HAVE NO LIABILITY FOR ANY CLAIM, HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE LAB SERVICES, OR THE HOSTED SERVICE WHEN PROVIDED ON A TRIAL OR EVALUATION BASIS.
12.1. By Squelch. Squelch will indemnify, defend and hold harmless Customer against any damages awarded by a court in connection with claims, demands, suits or proceedings made or brought by a third party (“Claims”) against Customer to the extent based upon an allegation that the Hosted Service, as furnished by Squelch hereunder and used by Customer within the scope of the Agreement, infringe any copyright or any U.S. patent or trademark rights of any third party. THE FOREGOING STATES THE ENTIRE OBLIGATION OF SQUELCH WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE HOSTED SERVICE. Squelch shall have no liability under this Section 12.1 to the extent that any Claims are based on any combination of the Hosted Service with products, services, methods, content or other elements not furnished by Squelch unless such combination is necessary for the intended use of the Hosted Service, or any use of the Hosted Service in a manner that violates the Agreement or the instructions given to Customer by Squelch.
12.2. Mitigation Measures. In the event of any Claim or potential Claim covered by Section 12.1, Squelch may, in its discretion, seek to mitigate the impact of such Claim by modifying the Hosted Service to make them non-infringing, and/or by suspending or terminating Customer’s use of the Hosted Service upon reasonable notice to Customer (provided, in the case of such suspension or termination, that Squelch will refund to Customer a portion of fees prepaid by Customer for the then-current subscription period, prorated to the portion of that subscription period that is affected by the suspension or termination).
12.3. Indemnification by Customer. Customer will indemnify, defend and hold harmless Squelch against any Claims arising from or related to any Customer Materials or the use of the Hosted Service by Customer or Authorized Users in violation of the Agreement, applicable laws, rules or regulations, or any applicable Squelch documentation or posted policies.
12.4. Procedures. Each party’s indemnity obligations are subject to the following: (a) the aggrieved party will promptly notify the indemnifier in writing of the applicable Claim; (b) the indemnifier will have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle any Claim in a manner that would impair any of the aggrieved party’s rights or interests without prior written consent, which will not be unreasonably withheld); and (c) the aggrieved party will, at the indemnifier’s expense, provide all cooperation, information and assistance reasonably requested by the indemnifier for the defense of such Claim.
13. LIMITATION OF LIABILITY
13.1. Waiver of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES, OR FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR INFORMATION, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF THE AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICES TO BE PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2. Liability Cap. EXCEPT FOR AMOUNTS OWED UNDER SECTION 8, THE TOTAL LIABILITY OF EACH PARTY FOR DAMAGES ARISING FROM OR RELATED TO THE AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO SQUELCH UNDER THE AGREEMENT FOR THE SERVICE PERIOD TO WHICH SUCH DAMAGES PERTAIN.
13.3. Exceptions. Nothing in this Section 13 shall limit or waive a party’s: (a) liability for any breach of its confidentiality obligations under these Service Terms; (b) liability for its infringement or misappropriation of any proprietary rights of the other party; or (c) indemnification obligations under Section 12.
14. MARKS; PUBLICITY
14.1. Identification of Customer. Squelch may identify Customer, by name and logo, as a customer of the Hosted Service, all on Squelch’s website and in Squelch’s other marketing materials.
14.2. Case Study. Provided Customer is satisfied with the Hosted Service, Squelch may develop a case study for public dissemination and marketing use by Squelch describing the benefits Customer has derived from the Hosted Service. Customer will reasonably cooperate with such case study. Publishing shall be subject to Customer’s prior written approval, not to be unreasonably withheld.
15.1. Assignment. Neither party may assign the Agreement without the other party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, each party may transfer these Service Terms together with all Order Forms (and subject to any usage limitations therein) upon written notice to the other party: (a) to any entity controlling, controlled by, or under common control with, the transferring party, where “control” means direct or indirect ownership or control of more than 50% of the voting interest of the subject entity; or (b) to any entity acquiring the transferring party, with which the transferring party is merging or to which the transferring party sells all or substantially all of its assets. Squelch shall have the right to increase amounts charged to Customer in the event of any transfer by Customer that either increases the cost of providing the Hosted Service or, by virtue of a change in taxes to be paid, reduces the amount received by Squelch. Any attempt to assign the Agreement except as permitted under this Section, will be null and of no effect. Subject to the foregoing, these Service Terms will bind and inure to the benefit of each party’s successors and permitted assigns.
15.2. Government End Users. The Platform Software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
15.3. Force Majeure. Neither party shall be liable for any delay or failure in performance (other than non-payment of amounts owing) due to causes beyond its reasonable control.
15.4. Export Compliance. Customer agrees to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Hosted Service, nor any direct product thereof, are: (a) exported or re-exported directly or indirectly in violation of such export laws and regulations; or (b) used for any purposes prohibited by the such export laws and regulations.
15.5. Severability. If any part of the Agreement is held to be unenforceable or invalid, in whole or in part, by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
15.6. Waiver. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach of that or any other provision.
15.7. Notices. All notices permitted or required under the Agreement shall be in writing, will reference the Agreement, and shall be delivered in person, by overnight courier or express delivery service, or by first class, registered or certified mail, postage prepaid, or by confirmed email delivery, to the address of the party specified on the Order Form or such other address as either party may specify in writing. Such notice shall be deemed to have been given upon receipt.
15.8. Governing Law. The Agreement will be governed by both the substantive and procedural laws of California, excluding its conflict of law rules and the United Nations Convention for the International Sale of Goods. Any legal action or proceeding arising under the Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein.
15.9. Revisions to Service Terms. Squelch may change these Service Terms and its policies from time to time. We may inform you of any such changes by posting the revised version(s) to our website at the same URL as the original version(s), and providing notice to you by email or through the Hosted Service. Unless otherwise agreed by the parties, any such changes will take effect for the Hosted Service as of the start of the second Renewal after Squelch has posted or otherwise informed Customer of the revision prior to the deadline for giving non-renewal notice. Any other amendment or modification to the Agreement must be in writing signed by both parties.
15.10. Entire Agreement; Priority. These Service Terms together with the Order Forms and any documents expressly referenced herein constitute the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof. In the event of any conflict between the provisions of these Service Terms concerning evaluation of the Hosted Services and access to Lab Services and the provisions of the remainder of these Service Terms, the terms concerning evaluation of the Hosted Services and access to Lab Services shall prevail.
Supplemental Salesforce Integration Terms
1. Definitions and Scope.
1.1. “SalesForce Integration” means the optional functionality of the Platform Service used to access Customer Data stored in Customer’s account with salesforce.com, inc. (“SFDC”).
1.2. For the purposes of these Supplemental Salesforce Integration Terms, “Customer” also includes “Evaluator”.
1.3. These Supplemental Salesforce Integration Terms apply only if and for so long as Customer utilizes the SalesForce Integration.
1.4. Customer specifically requests that Squelch activate the SalesForce Integration in order to enable the Hosted Service to access and process Customer Data stored in Customer’s account with SFDC. Customer acknowledges that the activation of the SalesForce Integration requires SFDC’s approval.
2. Special Terms
2.1. Customer expressly acknowledges that SFDC is under no continuing obligation to provide or enable the provision of the SalesForce Integration.
2.2. As between Squelch and SFDC, Customer will contact only Squelch for support for the SalesForce Integration. If Customer is an Evaluator, Squelch may or may not provide such support, in its sole discretion).
2.3. Customer expressly acknowledges and agrees that by the use of the SalesForce Integration, Customer Data will be transmitted outside SFDC’s system and to that extent SFDC is not responsible for the privacy, security or integrity of that Customer Data.
3. Term and Termination
3.1. Customer may request in writing that Squelch deactivate the SaleForce Integration at any time, and Squelch will do so within a reasonable period of time after receiving such request. These Supplemental Salesforce Integration Terms, but not any other agreement between Customer and Squelch, shall terminate upon deactivation of the SalesForce Integration.
3.2. Customer expressly acknowledges that SFDC enables the use of the SalesForce Integration on a month-to-month basis, and may decline to renew the use of the SalesForce Integration upon thirty (30) days written notice. If SFDC declines to renew the use of the SalesForce Integration, Squelch will inform Customer of such nonrenewal and the date of expiration of the availability of the SalesForce Integration. These Supplemental Salesforce Integration Terms shall terminate as of the date of expiration of the availability of the SalesForce Integration. Customer shall have fifteen (15) days from such date to terminate the Agreement between Customer and Squelch by written notice, and if Customer does so, Squelch shall refund Customer any pre-paid but unused fees for the Platform Services under the Agreement.