6.5 Each party acknowledges that monetary remedies may be inadequate for any breach of this Section 6 or the License Restrictions and, without prejudice to any rights or remedies at law or in equity otherwise available to the Disclosing Party, the Disclosing Party will be entitled to seek injunctive relief, specific performance or other appropriate equitable remedies to protect its interest therein, without the posting of bond or proof of actual damages.
7. Security and Data Privacy
7.1 Rootwurks will operate an information security program designed to protect Customer Content and Customer Records under Rootwurks’ control and utilizing industry standard policies and technologies. As of the Effective Date, the Rootwurks Services run on Amazon Web Services (“AWS”). AWS’s security commitments are set forth at https://aws.amazon.com/compliance/data-protection/ . In the event Rootwurks replaces AWS with another cloud hosting services provider which does not have substantially similar or better security commitments, Rootwurks will notify Customer thereof (email notification is acceptable), and as Customer’s sole remedy, Customer may, on or before 30 days after such notification, terminate this Agreement and receive a pro-rata refund of all pre-paid Rootwurks Services fees corresponding to the portion of the then-current Subscription Term after the date of such termination.
. Where Customer’s use of the Rootwurks Services includes the processing of personally identifiable information by Rootwurks that is subject to the General Data Protection Regulation (EU) 2016/679, (a) such data processing by Rootwurks as a data processor complies with the requirements of the aforementioned regulation, and (b) Rootwurks will process personally identifiable information on behalf of and in accordance with Customer’s instructions consistent with this Agreement, as necessary to provide the Rootwurks Services.
8. Warranties and Disclaimers
8.1 Each party hereby represents and warrants to the other that (a) such party has the right, power and authority to enter into this Agreement and to fully perform all its obligations hereunder, and (b) the making of this Agreement does not violate any agreement existing between such party and any third party.
Limited Warranty for Services
8.2 Rootwurks represents and warrants to Customer that (a) the Rootwurks Services performed hereunder will be performed in a competent, workmanlike manner in accordance with standard industry practices, and (b) the Rootwurks Services provided under this Agreement will be free from material defects. As Customer’s sole remedy, and Rootwurks’ sole liability and obligation, for any breach of the foregoing warranties, Rootwurks will promptly repair, replace or reperform the defective Rootwurks Services provided to Customer pursuant to this Agreement at no additional charge.
8.3 (a) EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, THE ROOTWURKS SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW, AND ROOTWURKS HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, AND ROOTWURKS HEREBY DISCLAIMS ANY IMPLIED WARRANTIES, CONDITIONS AND REPRESENTATIONS OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, ROOTWURKS DOES NOT WARRANT THAT THE ROOTWURKS SERVICES WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL, OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.
(b) RELIANCE BY CUSTOMER OR ITS PERSONNEL OR CLIENTS ON ANYTHING IN THE ROOTWURKS SERVICES OR ANYTHING SAID OR DISTRIBUTED BY ROOTWURKS OR ITS AGENTS IN CONNECTION WITH THE ROOTWURKS SERVICES WILL BE AT CUSTOMER’S SOLE RISK. ANY AND ALL USE OF, INTERPRETATIONS AND DECISIONS MADE BY CUSTOMER AS A RESULT OF USING, THE ROOTWURKS SERVICES OR OTHER INFORMATION PROVIDED BY ROOTWURKS UNDER THIS AGREEMENT ALSO INCLUDE THE OPINION AND JUDGMENT OF CUSTOMER. CUSTOMER HAS FULL RESPONSIBILITY FOR THE USE OF, AND ALL SUCH INTERPRETATIONS AND DECISIONS MADE BY CUSTOMER USING, ANY ROOTWURKS SERVICES OR OTHER INFORMATION PROVIDED BY ROOTWURKS UNDER THIS AGREEMENT. ROOTWURKS MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE OF THE ABILITY, COMPETENCE, KNOWLEDGE OR SKILL OF CUSTOMER’S PERSONNEL OR CLIENTS TO UTILIZE SUCCESSFULLY OR APPROPRIATELY, IN ANY CIRCUMSTANCE, ANY OF THE ROOTWURKS SERVICES.
9.1 Rootwurks will defend, indemnify and hold harmless Customer and its affiliates and its and their directors, employees and agents from and against any liability, claim, damage, cost or expense (including reasonable attorneys’ fees) awarded against Customer or agreed upon by Rootwurks in settlement to the extent arising out of or resulting from a claim that the Rootwurks Services infringe or misappropriates any copyright, trade secret or any patent of a third party issued in the U.S., Canada, the European Union, United Kingdom, countries of the European Economic Area and/or Switzerland. If such notice, suit or action occurs, or if Customer’s authorized use of the Rootwurks Services hereunder is, or in Rootwurks’ opinion is likely to be, enjoined due to the type of infringement specified above, then Rootwurks may undertake at its sole option, and at its expense, one or more of the following: (a) procure for the Customer the right to continue using the affected Rootwurks Services under the terms of this Agreement; (b) replace or modify the affected Rootwurks Services to render them non-infringing and substantially equivalent or better in function to the enjoined item; or (c) if options (a) and/or (b) above cannot be accomplished despite Rootwurks’ commercially reasonable efforts, then Rootwurks may terminate this Agreement with respect to such affected Rootwurks Services and upon return or cessation of use of the affected Rootwurks Services issue a pro-rata refund or credit to Customer corresponding to the portion of the then-current Subscription Term for such affected Rootwurks Services after the date of such termination. Notwithstanding the terms of this Section 9.1, Rootwurks will have no liability or obligation of any kind to the extent it results from: (i) any Rootwurks Services manufactured to specifications furnished by or on behalf of Customer, (ii) any infringement arising out of the use of the Rootwurks Services in combination with other hardware, equipment, software or materials not furnished by Rootwurks (if such infringement would not have occurred but for such combined use), (iii) use of a Rootwurks Services in a manner not normally intended, or with respect to any patent, copyright or trade secret in which the Customer or its affiliate has a direct or indirect interest, (iv) modification or alteration of the Rootwurks Services by Customer, without Rootwurks’ express written authorization and direct supervision; (v) Customer’s continuing such allegedly infringing activity after being informed by Rootwurks and provided, at no additional charge, with modifications that would have avoided the alleged infringement and reasonable time to implement such modifications, (vi) Customer’s use of such Rootwurks Services in breach of this Agreement, or (vii) Customer’s use of the Rootwurks Services after the then-current Subscription Term for such Rootwurks Services. This Section 9.1 contains and limits the entire liability and obligations of Rootwurks for Intellectual Property Rights infringements by the Rootwurks Services.
9.2 Customer will defend, indemnify and hold harmless Rootwurks and its affiliates and its and their directors, employees and agents from and any liability, claim, damage, cost or expense (including reasonable attorneys’ fees) awarded against Rootwurks or agreed upon by Customer in settlement to the extent arising out of or resulting from (a) a claim that any Customer Materials infringe or misappropriate any copyright, trade secret or any patent of a third party issued in the U.S., Canada, the European Union, United Kingdom, countries of the European Economic Area and/or Switzerland, (b) Customer’s activities under or in connection with this Agreement or Customer’s acts or omissions in connection with use of the Rootwurks Services, (c) personal injury or death not caused solely and directly by Rootwurks; (d) the breach by Customer of any informed consent obligations applicable to its use of the Rootwurks Services; (e) the breach by Customer of applicable laws including HIPAA and other privacy laws; and/or (f) any disputes between Customer and any of its clients or their families, successors, assigns and/or estates.
9.3 The party seeking to be indemnified will give prompt written notice to the other party of the claim against which it seeks to be indemnified and will provide the indemnifying party, at the indemnifying party’s expense, with the assistance reasonably necessary for the defense and settlement of the claim. The failure by the indemnified party to timely furnish to the indemnifying party any notice required to be furnished under this Section 9 will not relieve the indemnifying party of its obligations under this Section 9, except to the extent such failure materially and adversely prejudices the ability of the indemnifying party to defend such claim. The indemnifying party will have sole control of the defense and settlement of any such claim. The indemnifying party will not be liable for any settlement of an action effected without its written consent (which consent will not be unreasonably withheld or delayed), nor will the indemnified party settle any such action without the written consent of the indemnifying party (which consent will not be unreasonably withheld or delayed). The indemnifying party will have no right to settle any claim without the indemnified party’s prior written consent, which will not be unreasonably withheld or delayed, unless the settlement unconditionally releases the indemnified party of all liability. The indemnified party may engage counsel of its choice at its own expense.
9.2 Rootwurks will not be required or compelled to be a party to, assist in, or otherwise participate, whether as a witness or in any other capacity, in any investigation, audit, action or proceeding, whether judicial, arbitral or administrative, instituted by Customer, any Customer client or any third party (collectively, a “Proceeding”), provided, however, that in the event that Rootwurks is made a party to or is threatened to be made a party to, or otherwise becomes involved in, any such Proceeding (including, without limitation, via deposition, interrogatories or otherwise subpoenaed for any purpose), then in any such case Customer agrees to pay in advance, upon receipt of written demand therefor from Rootwurks, any and all expenses that may be incurred by Rootwurks in connection therewith, including, without limitation, reasonable attorneys’ fees, disbursements and retainers, court costs, transcript costs, fees of accountants, experts and witnesses, travel expenses, and all other expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, or being or preparing to be a witness or other participant in a Proceeding.
10. Limitation of Liability
10.1 ROOTWURKS’ TOTAL AGGREGATE LIABILITY TO CUSTOMER FOR ANY KIND OF LOSS, DAMAGE OR LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, UNDER ANY THEORY OF LIABILITY, WILL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO ROOTWURKS HEREUNDER FOR THE ROOTWURKS SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION GIVING RISE TO SUCH LIABILITY AROSE (“GENERAL LIABILITY LIMIT”). MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
Exclusion of Damages
10.2 EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ROOTWURKS SERVICES RENDERED BY ROOTWURKS HEREUNDER MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS OUTSIDE THE CONTROL OF ROOTWURKS BUT INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS AND REMOTE COMPUTING SERVICES. ROOTWURKS IS NOT RESPONSIBLE FOR ANY DAMAGES RESULTING FROM SUCH DELAYS, DELIVERY FAILURES OR OTHER SIMILAR PROBLEMS.
10.3 Customer understands and agrees that (a) the Rootwurks Services are a tool and not a replacement for Customer’s obligations and responsibilities under the law, (b) the Rootwurks Services only supplement and facilitate Customer’s legal obligations and responsibilities established outside of and separately from this Agreement including with respect to Customer’s personnel and clients, and (c) while Rootwurks strives to ensure the accuracy, completeness and consistency with current laws, regulations and other information of the Rootwurks Services, it is Customer’s sole responsibility and obligation to educate and inform Customer’s personnel and clients.
Failure of Essential Purpose
10.4 The limitations specified in this Section 10 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
Term of Agreement
11.1 This Agreement will begin on the Effective Date and will remain in force until terminated.
11.2 The term of each Subscription Term for the Rootwurks Services granted to Customer hereunder will begin upon the Subscription Term start date set forth in the applicable Order and will remain in force for the Subscription Term, unless terminated earlier in accordance with the terms of this Agreement. The Subscription Term will automatically renew without notice to Customer for the same period of time as the initial Subscription Term (each a “Renewal Term”), unless either party gives the other party written notice of its intent not to renew such Subscription Term at least 60 days before the expiration of the then-current term.
Termination for Breach
11.3 Each party will have the right to terminate this Agreement if the other party breaches any term of this Agreement, including nonpayment, and fails to cure such breach within 30 days after written notice thereof.
11.4 Either party may terminate this Agreement (including all Orders) immediately upon delivery of written notice if: (a) the other party makes an assignment for the benefit of creditors, or (b) the other party becomes the object of the institution of voluntary or involuntary proceedings in bankruptcy or liquidation and, where such proceedings are involuntary, they remain undismissed for 60 days after their institution, or a receiver is appointed with respect to a substantial part of its assets.
Effect of Termination
11.5 All rights granted to Customer hereunder will immediately terminate upon any termination of this Agreement. Upon termination by either party, Customer will within 10 business days: (a) pay to Rootwurks any and all unpaid amounts due under this Agreement, (b) return or destroy, at Rootwurks’ direction, any and all Rootwurks Materials, Rootwurks Content Modifications and Rootwurks Custom Content (if any, but excluding any Customer Materials or Third Party Materials) and all copies thereof, relating to the Rootwurks Services, and (c) certify in writing to Rootwurks that all actions required by the preceding clauses (a) and (b) have been satisfied. Further, upon such termination Rootwurks will within 10 business days return or destroy, at Customer’s direction, any Customer Materials, Customer Content, and certify in writing to Customer that it has done so. With respect to Customer Records, (i) during the Subscription Term Customer will have access to and the ability to download the Customer Records, and (ii) within 30 days of the termination of this Agreement, upon Customer’s request, Rootwurks will deliver a file to Customer of the Customer Records. Further, both parties will either return or destroy any and all Confidential Information of the other party, and all copies thereof, at the direction of the owning party and provide written proof of same upon the owning party’s reasonable request.
11.6 Except as otherwise expressly stated herein, termination of this Agreement by either party will be a nonexclusive remedy and will be without prejudice to any other right or remedy of such party. Except as otherwise expressly stated herein, the rights and remedies of the parties to this Agreement are cumulative and not alternative.
11.7 Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the license restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.
Suspension of Services
11.8 In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, Rootwurks reserves the right to suspend provision of the Rootwurks Services (and all other services under this Agreement) upon prior written notice to Customer (which will be reasonable prior notice unless Rootwurks reasonably believes immediate suspension is necessary); (a) if Customer is 15 days or more overdue on an undisputed payment, (b) if Rootwurks deems such suspension necessary as a result of Customer’s breach of Section 2 (Rootwurks Services), (c) if Rootwurks reasonably determines suspension is necessary to avoid material harm to Rootwurks or its other customers, including if the Rootwurks Services are experiencing denial of service attacks, mail flooding, or other attacks or disruptions outside of Rootwurks’ control, or (d) as required by law or at the request of governmental entities. Rootwurks will restore Customer’s access and use rights promptly after Customer has resolved the issue giving rise to the suspension. Rootwurks will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur in connection with any suspension of Customer’s account pursuant to this section. Customer will continue to be charged for the Rootwurks Services during any period of suspension.
12.1 Disputes under this Agreement will be governed by the laws of the State of Texas excluding rules as to choice and conflict of law. Each party consents to the exclusive jurisdiction and venue of the State and Federal Courts for Travis County, Texas; provided, however, that an action for injunctive relief may be filed in a jurisdiction where the actions or party to be enjoined is located. The parties hereby exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods.
12.2 Except with respect to any payment to be made to Rootwurks hereunder, neither party will be liable under this Agreement for any failure, deficiency or delay in the performance of its obligations under this Agreement due to any force majeure event, including natural catastrophe, fire, explosion, electrical or communication line failure, disturbance, war or military action, acts of terrorism, epidemic, pandemic, government acts, orders, or regulation, equipment failure, or any cause or matter whatsoever not within the reasonable control of such party. In the event of such a force majeure, the affected party will be entitled to a reasonable extension of time for the performance of its obligations under this Agreement. If the force majeure event continues for more than 60 calendar days, then either party may terminate the Agreement upon written notice to the other party.
12.3 The parties are independent contractors. Nothing contained herein or done pursuant to this Agreement will constitute either party the agent of the other party for any purpose or in any sense whatsoever, or constitute the parties as partners or joint venturers.
12.4 Either party may assign or transfer its rights and delegate its obligations (in whole or in part) under this Agreement, without the other party’s consent, to such party’s affiliate or pursuant to a corporate reorganization, merger, acquisition or sale of all or substantially all of its assets to which this Agreement relates. Any assignment or transfer contrary to the foregoing will be void This Agreement is binding upon the parties and their successors and permitted assigns.
12.5 Except as otherwise provided in this Agreement, no addition to or change to the Agreement will be effective or binding on either of the parties unless agreed to in writing by an authorized representative of each party. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with this Agreement will have any effect on the rights, duties or obligations of the parties under this Agreement, or otherwise modify this Agreement, regardless of any failure of Rootwurks to object to such terms, provisions, or conditions. Any purchase order or similar document from Customer will be for billing reference only.
12.6 No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. A waiver by a party of any provision of this Agreement in any one instance will not be deemed or construed to be a waiver of such provision for any similar instance in the future or of any subsequent breach.
12.7 If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. The parties agree to negotiate in good faith an enforceable substitute provision for any invalid or unenforceable provision that most nearly achieves the intent and economic effect of such provision.
12.8 Except as otherwise expressly stated in this Agreement, all notices given hereunder will be in writing, and will be deemed to be duly given if delivered by any of the following methods: (a) by electronic mail; (b) by personal delivery; (c) by registered or certified mail, postage prepaid, return receipt requested; or (d) by a globally or nationally (as the case may be) recognized express mail, courier, or delivery service (“Express Courier”). A notice sent by electronic mail will be deemed given on the date of electronic confirmation of receipt. A notice sent by personal delivery, certified mail or Express Courier will be deemed given on the date of receipt or refusal of receipt. Notwithstanding the foregoing, notices of breach or termination sent by email (except for a notice not to renew a Subscription Term) are not valid unless also sent and received by one of the other methods stated herein. Notices to Rootwurks will be sent to the attention of CEO, and notices to Customer will be sent to the designated contact of Customer.
12.9 Neither party will publicize nor disclose to any third party without the consent of the other party the terms of this Agreement, except as may be necessary to comply with other obligations stated in this Agreement. Notwithstanding the foregoing, Rootwurks may use Customer’s name and logo/trademark, in connection with the Rootwurks website, general lists of Customers, and experience.
12.10 In the event that Customer makes suggestions to Rootwurks regarding new features, functionality or performance that Rootwurks adopts for the Rootwurks Services (“Feedback”), such Feedback will become the sole and exclusive property of Rootwurks, free from any restriction imposed upon Rootwurks. Rootwurks will have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Rootwurks Services.
Order of Precedence
12.11 In the event of conflict, the following order of precedence will apply: (a) the Order, (b) the terms and conditions of this Agreement, (c) the exhibits and Rootwurks policies attached or incorporated herein by reference, and (d) any statement of work or addenda attached or incorporated by reference to this Agreement.
No Third-Party Beneficiaries
12.12 There are no third-party beneficiaries to this Agreement.
Modification of Agreement Terms and Conditions
12.13 Rootwurks reserves the right, in its discretion, to modify the terms and conditions of this Agreement (collectively, “Changes”), at any time. The date that Changes were last made are indicated at the top of the page and such revisions are effective as of the “Last Updated” date. We will notify you of Changes through communications via Customer’s Account, email or other means. Continued use of the Rootwurks Services after Rootwurks’ notice to Customer of such updated version of this Agreement will constitute Customer’s acceptance of such updated version. Within 30 days’ notice of any Changes, if Customer certifies in writing that the Changes are material and adverse to Customer, then Rootwurks may elect in writing to (a) waive the Changes for Customer, or (b) provide Customer with 30 days for Customer to elect in writing whether to (i) terminate this Agreement without any Customer liability for Rootwurks Services that Rootwurks has not yet provided, or (ii) accept the Changes despite the adversity.
12.14 This Agreement, including the Orders, and the applicable exhibits, addenda, statements of work and Rootwurks policies incorporated herein by reference, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all previous and contemporaneous agreements and understandings, whether oral or written, between the parties with respect to the subject matter hereof. The term “including” and/or “includes” and the like means “including without limitation”. The headings used in this Agreement are for reference only and do not change the meaning of any provision of this Agreement, and will not be used in interpretation of any provision of this Agreement. This Agreement will be construed without regard to any presumption or rule requiring construction against the drafting party.