THIS GO FIG APP SUBSCRIPTION AGREEMENT (“AGREEMENT”) FORMS A BINDING AGREEMENT BETWEEN YOU INDIVIDUALLY OR THE BUSINESS ENTITY OR PUBLIC AGENCY ON WHOSE BEHALF YOU ARE ACCEPTING THIS AGREEMENT (“CUSTOMER”) AND GO FIG, LLC (“GO FIG”).
THIS AGREEMENT IS ACCEPTED BY: (1) INDICATING ACCEPTANCE OF THESE TERMS BY CLICKING “SUBMIT,” “ACCEPT” OR BY SIMILAR ONLINE ACTION AS MAY BE OFFERED IN A GO FIG WEB OR IN-APPLICATION FORM, OR BY SIGNING AN ORDER FORM REFERENCING THIS AGREEMENT; OR (2) ACCESSING OR USING ANY PORTION OF GO FIG APP. THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF CUSTOMER REPRESENTS AND WARRANTS THAT THEY: (A) ARE AN EMPLOYEE, CONTRACTOR, OR AGENT OF, AND HAVE THE AUTHORITY TO REPRESENT, CUSTOMER; AND (B) READ AND UNDERSTAND ALL THE PROVISIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT WISH TO ACCEPT THIS AGREEMENT, OR THE INDIVIDUAL ACCEPTING THE AGREEMENT DOES NOT HAVE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT, THEN DO NOT CLICK OR SIGN TO ACCEPT THIS AGREEMENT OR ACCESS OR USE GO FIG APP.
IF CUSTOMER REGISTERS FOR A FREE TRIAL OF GO FIG APP, THE EVALUATION SUBSCRIPTION PROVISIONS OF SECTION 2.4 OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL, INCLUDING THE AUTOMATIC CONVERSION TO A PAID SUBSCRIPTION DESCRIBED IN THAT SECTION. IF CUSTOMER PURCHASES A SELF-SERVE SUBSCRIPTION (STARTER, PRO, OR GROWTH), THE SUBSCRIPTION TERM WILL BE MONTHLY OR ANNUAL AS SELECTED AT CHECKOUT.
IF CUSTOMER ALREADY HAS A SIGNED SUBSCRIPTION AGREEMENT, EVALUATION AGREEMENT, OR OTHER MASTER AGREEMENT GOVERNING ACCESS TO AND USE OF THE PRODUCT THAT IS THE SUBJECT OF THIS AGREEMENT, THEN THAT AGREEMENT WILL CONTINUE TO GOVERN AND THIS AGREEMENT WILL NOT SUPERSEDE ITS TERMS.
This Agreement incorporates by this reference all the numbered sections below (“Main Body”) as well as the terms and conditions of all applicable Order Forms. If any portion of this Agreement is expressly inconsistent with another, documents earlier in the following list will take precedence over later documents, unless the later document expressly recites the parties’ intent to supersede specific terms in the earlier document: (1) any Order Form (solely with respect to that order) and any Service Description therein; (2) the Main Body; and (3) any other incorporated document.
1. Definitions.
1.1. “Administrative Information”
means information submitted by Customer into Go Fig App in connection with the administration of its instance of Go Fig App, including user names, login credentials, and query tokens, as further described in the Documentation.
1.2. “Affiliate”
means, with respect to a party, any legal entity (such as a corporation, partnership, or other legal entity) that controls, is controlled by, or is under common control with such party. For purposes of this definition, “control” means the legal power to direct or cause direction of the general management of the corporation, partnership, or other legal entity. Affiliates of Customer are “Customer Affiliates” and Affiliates of Go Fig App are “Go Fig App Affiliates.”
1.3. “Authorized User”
means one individual who was provided access credentials by Customer to access and use Go Fig App as provided herein.
1.4. “Confidential Information”
means: (a) Administrative Information (which will be deemed Customer’s Confidential Information); (b) Go Fig App, its pricing, and any non-public technical documentation about Go Fig App (which will be deemed Go Fig App’s Confidential Information); (c) any information of a party that due to the nature of the information or circumstances of disclosure, the Recipient should reasonably understand to be the Discloser’s (as defined below) confidential information; and (d) any Order Form and any amendment to this Agreement or an Order Form (which will be deemed Confidential Information of both parties). Confidential Information will not include information that the Recipient can demonstrate was: (i) generally known to the public at time of disclosure or becomes generally known through no wrongful act or omission of the Recipient; (ii) rightfully in the Recipient’s possession, or otherwise rightfully known by the Recipient, at time of disclosure by the Discloser and not subject to a confidentiality obligation; or (iii) independently developed by employees and contractors of the Recipient who had no access to the Confidential Information.
1.5.“Consulting Services”
means user assistance, consulting, and training services provided by or on behalf of Go Fig.
1.6. “Customer Data”
means all data, content, and information that Customer or its Authorized Users connect, upload, submit, transmit, or generate through Go Fig App, including data ingested from Customer's third-party systems through integrations Customer enables, data held in Customer's own database or data warehouse and queried through Go Fig App, and the semantic models, metrics, flows, dashboards, analyses, and other outputs derived from any of the foregoing. Customer Data excludes Administrative Information.
1.7. “Documentation”
means the then-current service operating and interface instructions (including API documentation) published for use of each version of Go Fig App at https://docs.gofig.ai/.
1.8. “Effective Date”
means the earlier date that: (a) Customer signs an Order Form; or (b) Customer accepts this Agreement in any of the manners described above.
1.9. “Intellectual Property Rights” or “IPR”
means all intellectual property or other proprietary rights worldwide, including patent, trademark, service mark, copyright, trade secret, know-how, moral right, and any other intellectual and intangible property rights, including all continuations, continuations in part, applications, renewals, and extensions of any of the foregoing, whether registered or unregistered.
1.10. “Law”
means all applicable laws, rules, statutes, decrees, decisions, orders, regulations, judgments, codes, and requirements of any government authority (federal, state, local, or international) having jurisdiction.
1.11. “Order Form”
means: (a) an order form or other ordering document signed by the authorized representative(s) of Customer and Go Fig that specifies subscriptions purchased, corresponding pricing, and the Subscription Term, as well as the scope and price of Consulting Services purchased (if any); or (b) an online web form or in-application electronic ordering process initiated by Customer that references this Agreement.
1.12. “Service Description”
means a written description of Consulting Services attached to or referenced in an Order Form.
1.13. “Subscription Term”
means the period of authorized access to Go Fig App.
1.14. “Go Fig App”
means any software-as-a-service offering ordered by Customer under an Order Form or via a registration portal, sample data or data provided by the software as a service, any updates and upgrades thereto, and any modifications, enhancements, or improvements, of any of the foregoing.
1.15. “Customer AI Credentials”
means application programming interface credentials for an artificial intelligence service, issued to Customer under Customer’s own agreement with the provider of that service, which Customer supplies to Go Fig for use under Section 3.10.
2. Purchasing.
2.1. Orders.
Customer may purchase Go Fig App access or Consulting Services as identified in an Order Form pursuant to this Agreement. Upon execution by the parties, each Order Form is non-cancellable and, except as otherwise provided in this Agreement, non-refundable. Prices stated in each Order Form are final. Each Subscription Term is a non-divisible, continuous commitment, regardless of the invoice schedule, and pricing is based on a purchase of the entire Subscription Term.
2.2. Invoices and Payment.
Go Fig will electronically issue to Customer the initial invoice corresponding with each Order Form upon the provision of administrative credentials for use of Go Fig App. Consulting Services are offered on a fixed-fee basis invoiced upon signature of the corresponding Order Form. Customer will pay each invoice in full, within 10 days after the date of the electronic invoice to the email address provided by Customer. Late payments will accrue interest at a rate of 1.5% per month or the legal maximum, whichever is lower. Customer will make payments free of any currency controls or other restrictions, by check or wire transfer, to the address or bank account designated by Go Fig. Customer may not reduce any amount payable to Go Fig under this Agreement due to any counterclaim, set-off, adjustment, or other claim Customer might have against Go Fig, any other party, or otherwise. Go Fig may verify Customer’s use complies with the purchased use limitations in this Agreement, and if Go Fig determines that Customer has exceeded its permitted use rights, Go Fig will notify Customer and, within 30 days after the date of such notice, Customer will either: (a) reduce its use to match permissions; or (b) purchase subscription rights commensurate with its actual use.
2.3. Taxes.
Amounts payable under this Agreement are stated exclusive of all taxes, duties, levies, imposts, fines, or similar governmental assessments of any nature, including, for example, sales, use, GST, withholding, value-added, or similar taxes, imposed by any jurisdiction, and the interest and penalties on any of these (collectively, “Taxes”). Customer will pay all Taxes associated with the transactions, access, and use, contemplated by this Agreement except Taxes based on Go Fig App’s net income, property, or employees. If Go Fig App has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 2.3, Go Fig App will invoice Customer and Customer will pay that amount unless Customer provides Go Fig App with a valid tax exemption certificate authorized by the appropriate taxing authority prior to execution of the applicable Order Form. Taxes will not be deducted from payments to Go Fig App, except as required by Law, in which case Customer will increase the amount payable as necessary so that, after making all required deductions and withholdings, Go Fig App receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. Upon Go Fig App’s request, Customer will provide to Go Fig App its proof of withholding tax remittance to the respective tax authority.
2.4. Evaluation Access.
Go Fig App may occasionally offer to Customer evaluation, trial, testing, beta, or other free versions or features of Go Fig App (an "Evaluation Subscription"). Customer may use an Evaluation Subscription exclusively to determine whether to purchase a subscription to Go Fig App. In addition, Customer will use an Evaluation Subscription labeled "test" or "beta" solely with non-production, non-confidential data. Customer may not use an Evaluation Subscription for any production, professional, or for-profit purpose. Evaluation Subscriptions may be offered by Go Fig App without a corresponding Order Form, in which case all free trials end after 14 days or when the promotional credits run out, whichever comes first, unless otherwise expressly specified in an Order Form, the corresponding online registration portal, or the Documentation. Customer selects a subscription level (Starter, Pro, or Growth) when registering, and the Evaluation Subscription provides that level for the trial period. AT THE END OF THE TRIAL PERIOD, UNLESS CUSTOMER CANCELS BEFORE IT ENDS, CUSTOMER'S SUBSCRIPTION WILL AUTOMATICALLY CONVERT TO A PAID STARTER SUBSCRIPTION AT THE THEN-CURRENT STARTER RATE, CHARGED TO THE PAYMENT METHOD ON FILE, AND WILL RENEW UNTIL CANCELED. THERE IS NO FREE TIER AFTER THE TRIAL. Customer may cancel at any time, including before the trial ends, through the billing settings in Go Fig App, and no charge is incurred for a subscription canceled before the trial ends. No Go Fig App competitor or any employee, contractor, or agent thereof, may access an Evaluation Subscription. FOR ANY EVALUATION SUBSCRIPTION, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT: (A) GO FIG APP IS PROVIDED "AS-IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED; (B) GO FIG MAY TERMINATE CUSTOMER'S ACCESS AT ANY TIME, FOR ANY REASON AND WITHOUT LIABILITY OF ANY KIND; AND (C) GO FIG WILL HAVE NO INDEMNITY OBLIGATION UNDER THIS AGREEMENT, AND GO FIG'S TOTAL LIABILITY WITH RESPECT TO THE EVALUATION SUBSCRIPTION ARISING IN ANY WAY OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED $100. This Section 2.4 will supersede any conflicting terms in this Agreement with respect to any Evaluation Subscription.
3. Permissions and Limitations.
3.1. Access.
Subject to the terms and conditions of this Agreement and payment of all fees due, Go Fig hereby grants Customer a limited, nonexclusive and non-transferable license, without right of sublicense, during the Subscription Term to access the Go Fig App, solely for its internal business purposes and in accordance with the Documentation, and to permit Authorized Users to use the Go Fig App, subject to the terms and conditions of this Agreement. Notwithstanding the foregoing, Go Fig App subscriptions designated in an Order Form as non-production may be used solely for use case development, testing, user training, and similar non-production purposes. All rights in the Go Fig App not expressly granted hereunder are reserved to Go Fig.
3.2. Authorized Users.
Authorized Users consist solely of Customer’s employees, Affiliates, and third-party agents, advisors, and contractors, who in each case are not competitors of Go Fig App, to whom Customer has provided unique credentials to access Go Fig App on Customer’s behalf. Customer will not grant any person other than an Authorized User access to Customer’s instance of Go Fig App. Customer will be wholly liable for non-compliance with this Agreement by a party permitted by Customer to access Go Fig App as if such party were Customer.
3.3. Support and Security.
Go Fig will maintain the security measures described in Section 3.6 (Security) for all Go Fig App subscriptions, including Evaluation Subscriptions and self-serve subscriptions. Service-level commitments and priority technical support are provided as specified in the applicable Order Form and are not included with Evaluation Subscriptions or self-serve subscriptions.
3.4. Restrictions.
Customer will not (and has no right to): (a) use Go Fig App or Documentation except as permitted in this Agreement; (b) disassemble, decompile, port, reverse compile, reverse engineer, translate, or otherwise attempt to separate any of the components of the Go Fig App or reconstruct any Go Fig App, or attempt to derive or obtain any source code, structure, algorithms, processes, techniques, technologies, know-how, or ideas embodied by, underlying, or contained in Go Fig App; (c) sell, license, sublicense, rent, lease, encumber, lend, distribute, transfer, or provide a third party with access to Go Fig App, for time sharing, as a managed service provider, or otherwise (except as expressly set forth in an Order Form); (d) alter, modify, or create derivative works of Go Fig App (including any source code) in any way, including through customization, translation, or localization; (e) remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels in Go Fig App or Documentation, including in generated analytics reports; (f) circumvent or remove by any means any click-accept or copy protection, or share or disclose user credentials other than to the individual to which the credential was assigned; (g) use Go Fig App or Documentation to conduct competitive research, to develop a product that is competitive with any Go Fig App product offering, or to assert, authorize, assist, or encourage a third party to assert, against Go Fig App or any of its affiliates, customers, vendors, business partners, or licensors, any patent or other IPR claim regarding Go Fig App products or services; (h) publicly disseminate any performance or security vulnerability test (including a penetration test) results or analysis related to or derived from Go Fig App; or (i) use Go Fig App to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs, or otherwise engage in a malicious act, or otherwise violate or disrupt the security, integrity (including by using Go Fig App to create software to convert search processing results to a format not owned by Go Fig App), availability, or operation of Go Fig App or its network. Before Customer engages in any of the foregoing acts that it believes it may be entitled to, it will provide Go Fig with 30 days’ prior notice to legal@gofig.ai, and provide reasonably requested information to allow Go Fig App to assess Customer’s claim. Go Fig App may, in its discretion, provide alternatives that reduce adverse impacts to Go Fig App’s IPR or other rights.
3.5. Administration.
Subject to the terms of this Agreement, Customer grants to Go Fig a revocable, nonexclusive, worldwide, royalty-free right to use, reproduce, transmit, modify, and display Administrative Information and Customer Data solely to the extent necessary to provide, secure, and support Go Fig App for Customer under this Agreement, and for no other purpose. Customer represents to Go Fig that Customer has sufficient rights to grant the license in the previous sentence and Customer’s use of Go Fig App is compliant with Customer’s own policies and the Law. The parties acknowledge that Go Fig App is intended to be used in conjunction with a data source; neither Go Fig nor Go Fig App provides a source of record or data backup.
3.6. Security.
Go Fig will implement and maintain administrative, technical, and physical safeguards designed to protect Customer Data against unauthorized access, use, disclosure, alteration, and destruction, which will be no less protective than the technical and organizational measures described at https://gofig.ai/dpa and no less protective than the controls covered by Go Fig’s then-current SOC 2 Type II report. Go Fig will maintain SOC 2 Type II certification, or a successor or comparable independent third-party audit, during the Subscription Term. Where Customer’s subscription is designated as Enterprise in an Order Form, Go Fig will make the report available to Customer on request under a confidentiality agreement. For all other subscriptions, Go Fig will instead make available a summary of its security posture and will respond to reasonable written security questions, and will make the report available to the extent required by Law or by Section 9 of the Data Processing Agreement. Go Fig will not materially degrade the security of Go Fig App during the Subscription Term.
3.7. Security Incidents.
Go Fig will notify Customer without undue delay, and in any event within 72 hours, after becoming aware of any confirmed unauthorized access to, acquisition of, or disclosure of Customer Data in Go Fig's possession or control (a “Security Incident”). The notice will describe the nature of the Security Incident, the categories and approximate volume of Customer Data affected so far as then known, the likely consequences, and the measures taken or proposed. Where the full picture is not available at the time, Go Fig will provide information in phases as it is established. Go Fig will investigate each Security Incident, take reasonable steps to mitigate and remediate it, and provide Customer with reasonable assistance in meeting Customer's own notification obligations under Law. Notification under this Section 3.7 is not an acknowledgment of fault or liability.
3.8. Data Processing.
Where Go Fig processes personal data on Customer's behalf, the Data Processing Agreement at https://gofig.ai/dpa is incorporated into this Agreement by reference and governs that processing, including international transfer mechanisms and Go Fig's use of subprocessors. In the event of a conflict between this Agreement and the Data Processing Agreement on a matter of data protection, the Data Processing Agreement controls.
3.9. Customer Security Responsibilities.
Go Fig App is designed on the assumption that Customer implements certain controls of its own. Customer will: (a) supervise, manage, and control its Authorized Users' use of Go Fig App, including provisioning and promptly deprovisioning credentials; (b) notify Go Fig promptly of any actual or suspected security breach affecting Customer's use of Go Fig App, including any compromised user account, API key, or integration credential; (c) notify Go Fig of changes to its technical or administrative contacts; (d) maintain its own systems of record and its own backups, Go Fig App being an analytics layer and not a system of record or backup service; and (e) maintain its own business continuity and disaster recovery plans addressing any period during which Go Fig App is unavailable. These responsibilities correspond to the complementary user entity controls identified in Go Fig's SOC 2 Type II report.
3.10. Customer-Provided AI Credentials.
Where an Order Form so specifies, Customer may supply Customer AI Credentials, and Go Fig will perform the corresponding artificial intelligence processing through Customer's own account with that provider. The providers, models, and features available under this Section are those stated in the Order Form. The following apply to any processing performed under Customer AI Credentials:
(a) Customer's provider agreement governs. That processing is governed by Customer's own agreement with the provider. Go Fig's commitments concerning artificial intelligence providers, including those in Section 3.6 and in the Data Processing Agreement, apply to providers Go Fig engages and do not apply to a provider Customer engages under its own agreement. That provider is not a subprocessor of Go Fig with respect to that processing.
(b) Fees. Customer is responsible for all amounts owed to that provider. Any corresponding adjustment to subscription fees or to included artificial intelligence usage will be stated in the Order Form.
(c) Credential handling. Go Fig will store Customer AI Credentials in encrypted form, use them only to perform Go Fig App for Customer, and delete them on Customer's written request or on expiry or termination of the Subscription Term, whichever occurs first. Customer may revoke Customer AI Credentials at any time at the provider.
(d) Availability and no fallback. Artificial intelligence features may be unavailable or degraded where Customer AI Credentials are invalid, revoked, rate-limited, or exhausted, or where Customer's provider is unavailable. Go Fig will not process Customer Data through Go Fig's own artificial intelligence provider accounts as a fallback without Customer's prior written instruction. Go Fig's warranties under Section 4 and any service level commitment stated in an Order Form do not cover unavailability or degradation attributable to Customer AI Credentials or to Customer's provider.
(e) Security responsibility. Customer AI Credentials are an integration credential for the purposes of Section 3.9(b). Go Fig is not responsible for the acts or omissions of a provider Customer engages under its own agreement, and Sections 7.1 and 7.4 do not extend Go Fig's liability to that provider's processing.
3.11. Service Levels.
Where an Order Form specifies a service level commitment, Go Fig will make Go Fig App available in accordance with it, and this Section 3.11 applies notwithstanding the disclaimer of uninterrupted operation in Section 4.3. Absent such an Order Form, no service level commitment applies.
(a) Measurement. Availability is measured over each calendar month as the percentage of five-minute intervals during which Go Fig App is reachable and returning responses to authenticated requests, excluding Excluded Time. An Order Form stating a percentage without further definition uses this measure.
(b) Excluded Time. Excluded Time means: scheduled maintenance for which Go Fig gives at least 48 hours' notice; emergency maintenance undertaken to address a security or data integrity risk; unavailability caused by Customer's configuration, Customer's network, or Customer's Authorized Users; unavailability of any third-party system Customer has connected, including any system reached through an integration and any unavailability attributable to Customer AI Credentials under Section 3.10(d); and events outside Go Fig's reasonable control, including a failure of an underlying cloud provider that Go Fig could not reasonably have mitigated.
(c) Service credits. If Go Fig fails to meet the committed level in a calendar month, Customer may claim a service credit against the fees for the following month, calculated as stated in the Order Form. Customer must submit the claim in writing within 30 days after the end of the month in question, with reasonable supporting detail.
(d) Sole remedy. Service credits are Customer's sole and exclusive remedy for any failure to meet a service level commitment. This Section 3.11 does not limit Customer's termination rights under Section 8.1.
4. Warranties.
4.1. Go Fig App.
Go Fig warrants that it has the corporate right and authority to execute and enter into this Agreement, and further warrants that during the Subscription Term the Go Fig App will, under normal use, substantially conform to the specifications in the Documentation. To submit a warranty claim, Customer must request technical support using Go Fig App’s support portal, and reference this Section 4.1. Go Fig will use commercially reasonable efforts to cause Go Fig App to conform to the warranty above at no charge to Customer, or if Go Fig determines such remedy to be impracticable, either party may terminate the applicable Order Form and Customer will receive a refund of any unused prepaid fees covering the remaining Subscription Term following the effective date of termination. This warranty will not apply to: (a) use of Go Fig App other than as described in the Documentation; (b) modification of Go Fig App by anyone but Go Fig; (c) failure caused by a product or integration not provided or expressly approved by Go Fig or its agents; or (d) use of the Go Fig App during an Evaluation Subscription. This Section 4.1 sets forth Customer’s exclusive rights and remedies (and Go Fig’s entire liability) in relation to the warranty in this Section 4.1.
4.2. Consulting Services.
Go Fig warrants that it will perform Consulting Services in a professional manner using reasonable care and skill in accordance with industry standards. Customer will notify Go Fig of any material breach within 30 days after performance of the non-conforming Consulting Services. On receipt of such notice, Go Fig will use commercially reasonable efforts to re-perform the Consulting Services in substantial conformance with these warranty requirements, and if Go Fig is unable to correct the reported non-conformity after two attempts, either party may terminate the applicable Order Form for Consulting Services and Customer will receive a refund of any pre-paid unused fees for the Consulting Services purchased thereunder. This Section 4.2 sets forth Customer’s exclusive rights and remedies (and Go Fig App’s entire liability) in relation to the warranty in this Section 4.2.
4.3. Disclaimers.
EXCEPT FOR THE LIMITED WARRANTIES UNDER SECTIONS 4.1 (GO FIG APP) AND 4.2 (CONSULTING SERVICES) AND TO THE MAXIMUM EXTENT PERMITTED UNDER LAW, GO FIG (ON ITS OWN BEHALF AND ON BEHALF OF ITS SUPPLIERS AND LICENSORS) AND GO FIG AFFILIATES: (A) DO NOT MAKE, AND EXPRESSLY DISCLAIM, ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO GO FIG APP, SUPPORT AND CONSULTING SERVICES (EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE), INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF GO FIG KNOWS OR SHOULD HAVE KNOWN SUCH PURPOSE), TITLE, AND NON-INFRINGEMENT; AND (B) WITHOUT LIMITING THE FOREGOING CLAUSE (A), MAKE NO (AND EXPRESSLY DISCLAIM) ANY WARRANTY THAT GO FIG APP AND ANY USE OF IT, WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, COMPATIBLE WITH ANY PARTICULAR ENVIRONMENT, FREE FROM OR IMMUNE TO DATA SECURITY BREACHES OR FREE FROM DEFECTS, OR ERRORS (OR THAT ANY ERRORS WILL BE CORRECTED).
4.4. Exclusive Remedy.
The Remedies provided in this Section 4, including all sub-sections, constitute Customer’s entire, sole and exclusive remedy arising out of the warranties provided herein and/or Customer’s use of the Go Fig App.
5. Proprietary Rights.
5.1. Confidentiality.
For the term of this Agreement, and surviving expiration or termination of this Agreement for up to three (3) years after disclosure of the Confidential Information, the party receiving Confidential Information (“Recipient”) from the other party (“Discloser”) will use it solely to perform the rights and obligations under this Agreement, and not for any other purpose without the Discloser’s prior written consent. The Recipient will hold in confidence, and not disclose to any third party, any of the Discloser’s Confidential Information and will use at least the same degree of care in handling the Discloser’s Confidential Information as it uses to protect its own Confidential Information from unauthorized use or access by third parties, but no less than reasonable care. Customer acknowledges that the Go Fig App utilizes third party data storage providers when providing the Go Fig App services. Nothing about this paragraph shall be construed as prohibiting Go Fig from providing Customer’s data, including Confidential Information and/or Administrative Information, to such third party data storage providers provided that such provider is obligated to confidentiality provisions that are at least as restrictive as those contained herein.
5.2. Permitted Disclosures.
The Recipient will notify the Discloser immediately on becoming aware of any unauthorized use or release of the Discloser’s Confidential Information. The Recipient may disclose the Discloser’s Confidential Information to those of its Affiliates, directors, advisors, employees, or contractors (collectively, “Representatives”) who have a need to know such Confidential Information to perform under or in relation to this Agreement, but only if such Representatives are subject to a binding, written agreement no less protective of the Discloser than the confidentiality terms of this Agreement. Nothing under this Agreement or trade secret Law may be construed to restrict or limit Go Fig App’s right to perform (or assign any personnel to perform) Consulting Services for any other party or to use any information incidentally retained in the unaided memories of its personnel providing Consulting Services. The Recipient’s obligations under Sections 5.1 and 5.2 will not apply to Confidential Information that must be disclosed by the Recipient to comply with a court order or Law, but only if the Recipient promptly notifies the Discloser to enable the Discloser to seek a protective order or other appropriate remedy, and takes commercially reasonable and lawful actions to avoid or minimize the extent of, and to obtain confidential treatment for, any such disclosure.
5.3. Ownership.
As between the parties, Customer and its licensors retain all right, title, and interest in and to Customer Data and Administrative Information, including all IPR therein. Go Fig acquires no right, title, or interest in Customer Data other than the limited license expressly granted in Section 3.5 (Administration). Go Fig will not access, use, disclose, or retain Customer Data except as necessary to provide, secure, and support Go Fig App for Customer, as directed by Customer, or as required by Law. Go Fig will not sell Customer Data, and will not use Customer Data to train, fine-tune, or otherwise develop any machine learning model made available to any third party. Go Fig may generate and use anonymized, aggregated statistical data derived from operation of Go Fig App, provided that such data does not identify Customer, any Authorized User, or any individual, and is not reverse-engineerable to Customer Data.
As between the parties, Go Fig, Go Fig Affiliates, and its and their suppliers and licensors own all right, title, and interest in and to all IPR in (and in all copies of) Go Fig App and Documentation, regardless of the form or media in or on which the original or other copies may subsequently exist. Except for the limited licenses expressly granted in this Agreement, Go Fig reserves all, and does not grant any other, rights (express, implied, by estoppel, through exhaustion, or otherwise).
5.4. Feedback.
Go Fig encourages Customer to provide suggestions, proposals, ideas, recommendations, or other input regarding Go Fig App (collectively, “Feedback”). To the extent that Customer provides such voluntary Feedback to Go Fig, Go Fig may use it for any purpose without obligation of any kind. The parties further agree that between Go Fig and Customer, Go Fig shall be the owner of all IPR associated with any such input that is ultimately used by Go Fig and/or included within the Go Fig App.
6. Third-Party Claims.
6.1. Go Fig App.
Go Fig will defend Customer from and against any claim or demand made by an unaffiliated third party alleging that the Go Fig App, when used as authorized in this Agreement, unmodified by Customer and used in accordance with the Documentation, infringes IPR owned by such third party and will indemnify Customer from and against any damages and costs awarded against Customer or agreed in settlement signed by Go Fig (including reasonable attorneys’ fees) resulting from such claim or demand. If Customer’s use of the Go Fig App is (or in Go Fig’s opinion is likely to be) enjoined, if required by settlement or if Go Fig determines such actions are reasonably necessary to avoid material liability, Go Fig may, in its sole discretion: (a) substitute products of substantially similar functionality; (b) procure for Customer the right to continue using the Go Fig App; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement and refund to Customer the fees paid to Go Fig App for the remaining portion of the Subscription Term. Go Fig will have no obligation in this Section 6.1 for any claim or demand to the extent arising from use of Go Fig App combined or integrated with other products, processes, information, or materials where the infringement would not have arisen but for such combination or integration.
6.2. Customer.
Customer will defend Go Fig from and against any claim or demand by a third party arising from or relating to (a) breach by Customer of Section 3.5 (Administration) and/or (b) Customer’s use of the Go Fig App (i) in a manner that is unauthorized and/or in violation of the terms of this agreement and/or (ii) in combination or integration with any third-party products, processes, information, or materials where the third party claim would not have arisen but for such combination or integration, and will indemnify Go Fig from and against any damages and costs awarded against Go Fig or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim or demand.
6.3. Process.
The parties’ indemnification obligations are expressly conditioned on the indemnified party: (a) providing prompt notification of any actual or threatened claim or demand; (b) giving the indemnifying party sole control of the defense and any related settlement negotiations; and (c) providing all necessary cooperation with the defense at the indemnifying party’s reasonable request and expense. Failure by the indemnified party to notify the indemnifying party of a claim under this Section 6 will not relieve the indemnifying party of its obligations therein; however the indemnifying party will not be liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this Section 6. The indemnifying party will not stipulate, acknowledge, or admit fault or liability on the indemnified party’s behalf, or publicize any settlement, without the indemnified party’s prior written consent (which will not be unreasonably withheld, conditioned, or delayed). Any indemnification obligation in this Section 6 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent. This Section 6 (Third-Party Claims) states the indemnifying party’s entire liability and the indemnified party’s exclusive remedy for third-party claims and third-party actions.
7. Limitations of Liability.
7.1. Limitation of Liability.
TO THE EXTENT PERMITTED BY LAW, GO FIG’S TOTAL, CUMULATIVE LIABILITY ARISING IN ANY WAY OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL BE LIMITED TO DIRECT DAMAGES INCURRED IN REASONABLE RELIANCE IN AN AMOUNT NOT EXCEEDING, FOR ALL CLAIMS IN THE AGGREGATE, THE ANNUALIZED FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT FOR THE GO FIG APP SUBSCRIPTIONS AND CONSULTING SERVICES GIVING RISE TO THE CLAIM, MEASURED AS OF THE DATE OF THE EVENT GIVING RISE TO THE LIABILITY.
For clarity, “annualized fees paid or payable” means the subscription and services fees contracted for a twelve (12) month period at the rates in effect on the date of the event, irrespective of the invoicing schedule, whether Customer prepays for a longer period, and whether any discount for prepayment applies. This measure is used so that the cap does not vary with billing cadence.
7.2. Exclusions.
TO THE EXTENT PERMITTED BY LAW, GO FIG WILL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, MULTIPLE, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR OTHER INDIRECT DAMAGES, OR FOR DAMAGES RELATING TO: (A) LOSS OR INACCURACY OF, OR DAMAGE TO, DATA , INCLUDING CONFIDENTIAL INFORMATION OR ADMINISTRATIVE INFORMATION; (B) LOST REVENUE OR PROFITS; (C) LOSS OF BUSINESS; (D) DAMAGE TO GOODWILL; (E) WORK STOPPAGE; (F) IMPAIRMENT OF OTHER ASSETS; OR (G) INDIRECT DAMAGES OF ANY TYPE HOWEVER CAUSED AND WITHOUT REGARD TO THE LEGAL THEORY UNDER WHICH THEY ARE SOUGHT, WHETHER BY BREACH OF WARRANTY, BREACH OF CONTRACT, IN TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE CAUSE OF ACTION, FORESEEABLE OR NOT, AND WITHOUT REGARD TO WHETHER GO FIG HAS BEEN ADVISED THAT SUCH DAMAGES ARE POSSIBLE.
7.3. Applicability.
The provisions of Sections 7.1 (Limitation of Liability) and 7.2 (Exclusions) do not apply to: (a) infringement, misappropriation, or other violation by a party of the other party’s IPR; (b) payments to a third party arising from obligations under Section 6 (Third-Party Claims); (c) either party’s gross negligence, willful misconduct, or fraud; or (d) Customer’s payment obligations. The parties, and not their Affiliates, suppliers, or licensors, are wholly responsible for any liabilities hereunder.
7.4. Enhanced Cap for Data Claims.
Notwithstanding Section 7.1, Go Fig’s total, cumulative liability arising out of or related to a breach by Go Fig of Section 3.6 (Security), Section 3.7 (Security Incidents), Section 3.8 (Data Processing), or Section 5 (Proprietary Rights) with respect to Customer Data will be limited to three times the annualized fees paid or payable by Customer under this Agreement, measured as provided in Section 7.1. This Section 7.4 states a single aggregate cap for all such claims and is not cumulative with the cap in Section 7.1. A higher cap, or a fixed minimum cap, may be agreed in an Order Form.
7.5. Insurance.
Where an Order Form specifies insurance types and minimum coverage amounts, Go Fig will maintain that coverage, at its own expense, for the Subscription Term, and will provide a certificate of insurance evidencing it on Customer’s written request, not more than once per year.
8. Term and Termination.
8.1. Term and Termination.
This Agreement begins on the Effective Date and continues until either this Agreement is terminated under its terms or all Order Forms under the Agreement expire, whichever occurs first. Either party may terminate this Agreement in its entirety: (a) immediately on written notice if the other becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership, or liquidation, in any jurisdiction, that is not dismissed within 60 days of its commencement or an assignment for the benefit of creditors; or (b) immediately on written notice if the other party materially breaches this Agreement and has not cured the breach within 30 days after receiving written notice of the alleged breach from the non-breaching party. Consulting Services are separately ordered from, and are not required for use of, Go Fig App. A breach by a party of its obligations with respect to Consulting Services will not alone constitute a breach by that party of its obligations with respect to the Go Fig App even if purchased in the same Order Form.
8.2. Effect.
On termination of this Agreement or expiration of Go Fig App access for any reason: (a) all use rights and access granted by Go Fig will automatically terminate; (b) for 30 days following the effective date of termination, Go Fig will make Customer Data available for export by Customer in standard machine-readable formats and provide reasonable assistance with that export on request; (c) following that 30-day period, Go Fig will delete Customer Data from its production systems and will confirm such deletion in writing on request, provided that encrypted backups expire on the schedule stated in Section 10.2 of the Data Processing Agreement and are not restored to production, and that Go Fig may retain Customer Data to the extent required by Law; (d) the parties will destroy all copies of the other party’s other Confidential Information in their possession, custody, or control; and (e) if requested, either party will certify such destruction in writing. Within 30 days after the effective date of proper termination for Go Fig’s material breach, Go Fig App will refund any unused prepaid fees received by Go Fig App covering that part of the Subscription Term for the affected Go Fig App subscription, if any, remaining after such effective date. If termination is for Customer’s breach, all remaining amounts are accelerated and deemed due and payable as of the termination date.
8.3. Survival.
Except as otherwise provided in this Agreement, the following will survive termination of this Agreement: Sections 1 (Definitions), 2.2 (Invoices and Payment), 2.3 (Taxes), 2.4 (Evaluation Access), 3.4 (Restrictions), 3.7 (Security Incidents) and 3.8 (Data Processing) (in each case for so long as Go Fig retains any Customer Data), 4.3 (Disclaimers), 5 (Proprietary Rights), 6 (Third-Party Claims) (but only for one year following the Effective Date), 7 (Limitations of Liability), 8 (Term and Termination), and 9 (General).
8.4. Suspension.
In addition to other rights or remedies in this Agreement, Go Fig reserves the right to suspend provision of and/or access to the Go Fig App: (a) if Customer has a payment that is 10 or more days overdue; (b) if Go Fig deems such suspension reasonably necessary as a result of Customer’s breach of Sections 3.4 (Restrictions) or 3.5 (Administration); (c) if Go Fig reasonably determines suspension is necessary to avoid material harm to Go Fig App or its other customers, including if Go Fig is receiving denial of service attacks, integration overuse, or other attacks or disruptions outside of Go Fig’s control; or (d) as required by Law or at the request of governmental authorities.
9. General.
9.1. Announcements.
Neither party will issue any press releases or announcements, or any marketing, advertising, or other promotional materials, related to this Agreement, or referencing the other party, nor use the other party’s logo, trademarks and service marks in relation to this Agreement, without the other party’s prior written approval.
9.2. Export Compliance.
Each party will comply with local and foreign export control Law, including U.S. export control Law. Go Fig is subject to U.S. Export Administration Regulations (“EAR”) and Customer will comply with EAR. Without limiting the foregoing, Customer represents and warrants that: (a) it is not located in, and will not use Go Fig App from, any country subject to U.S. export restrictions (currently including Cuba, Iran, North Korea, Sudan, Syria, and Crimea Region); (b) Customer will not use Go Fig App in the design, development, or production of nuclear, chemical, or biological weapons, or rocket systems, space launch vehicles, sounding rockets, or unmanned air vehicle systems; and (c) Customer is not prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. In addition, Customer is responsible for complying with any local Law that may impact Customer’s right to import, export, or use Go Fig App.
9.3. U.S. Federal Government Access.
Go Fig App accessed under this Agreement is commercial computer software developed exclusively at private expense. Unless otherwise expressly set forth in this Agreement, use, duplication, and disclosure by civilian agencies of the U.S. Government will not exceed those minimum rights set forth in FAR 52.227-19(c) or successor regulations. Use, duplication, and disclosure by U.S. Department of Defense agencies is subject solely to the software license terms contained, referenced, or incorporated in this Agreement, as stated in DFARS 227.7202 or successor regulations. U.S. Government rights will apply only to the specific agency and program for which Go Fig App is obtained.
9.4. Waiver; Amendment.
No delay or failure by either party to exercise any right under this Agreement will waive that or any other right. A waiver of any breach of this Agreement is not a waiver of any other breach. Any waiver must be in writing and signed by an authorized representative of the waiving party. Any amendment to this Agreement must be in writing and signed by authorized representatives of both parties.
9.5. Assignment.
Customer will not assign, delegate, or otherwise transfer this Agreement, or any of its rights or duties under it, to a third party without the other’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed. Any purported transaction in breach of this Section 9.5 is deemed material and is void.
9.6. Notices.
All notices and other communications under this Agreement will be: (a) in writing; (b) in English; and (c) deemed given when delivered (or the first business day after delivery with confirmation of receipt, for notices permitted by email). Notices under this Agreement will be sufficient only if: (i) personally delivered; (ii) delivered by a major commercial rapid delivery courier service with tracking capabilities; (iii) mailed by certified or registered mail, return receipt requested, to a party at the address stated in the applicable Order Form (or at such address as the recipient has notified the other party of, before notice was sent); or (iv) sent via email, if the recipient’s email address is provided in this Agreement (but email will not be sufficient for notices regarding a claim, demand, or alleged breach). All notices except for ordinary business communications will be cc’d to the address stated in the applicable Order Form.
9.7. Dispute Resolution.
This Agreement and performance under it will be governed by the substantive laws of the State of South Carolina, disregarding its conflict of law rules. If federal jurisdiction exists over any suit, action, or proceeding arising out of or relating to this Agreement, the parties consent to exclusive jurisdiction and venue in Greenville, South Carolina and waive any objection to personal jurisdiction and/or venue that they may have with regard to such court. If not, the parties consent to exclusive jurisdiction and venue in the South Carolina state courts sitting in Greenville County, South Carolina and waive any objection to personal jurisdiction and/or venue that they may have with regard to such court. In any such suit, action, or proceeding, the prevailing party may recover its reasonable attorneys’ fees, costs, and other expenses, including those on appeal or in a bankruptcy action. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction, do not apply to this Agreement.
9.8. Force Majeure.
Neither party will be responsible for any delay or failure in its performance of any obligation under this Agreement (other than payment) due to causes beyond its reasonable control, but only if the party invoking this Section 9.8 promptly notifies the other party and resumes performance promptly when conditions allow it to do so.
9.9. Relationship.
The parties are independent contractors. Nothing in this Agreement will be construed to create a partnership, joint venture, agency, or other relationship. Neither party has any right or authority to assume or create any obligation of any kind, express or implied, in the other party’s name or on its behalf. There are no third-party beneficiaries to this Agreement.
9.10. Severability.
If any part of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that part will be deemed reformed to effectuate the parties’ intentions, and the rest of this Agreement will remain in full force and effect.
9.11. Execution and Construction.
This Agreement is effective only when executed by electronic signature service, or in counterparts, which together (including any expressly incorporated terms) will be deemed the entire agreement. Such execution requirement is, without limitation, a material term. Section headings are intended solely for convenience and will not affect the meaning of this Agreement. This Agreement will be interpreted according to its plain meaning without presuming it should favor either party. Unless stated or context requires otherwise: (a) all internal references are to this Agreement and its parties; (b) first-level section references (e.g., “as provided in Section 1”) includes all subordinate subsections (e.g., 1.1, 1.2, etc.) within that section; (c) all monetary amounts are expressed and, if applicable, payable, in U.S. dollars; (d) “days” means calendar days; (e) “may” means that the applicable party has a right, but not a concomitant duty; (f) “notify” means to give notice under (and “notice” means a notice that complies with) Section 9.6 (Notices); (g) “current” or “currently” means “as of the Effective Date” but “then-current” means the present time when the applicable right is exercised, obligation is incurred, or performance is rendered or measured; (h) URLs are understood to also refer to successors, localizations, and information or resources linked from within websites at such URLs; (i) lists of examples following “including”, “e.g.”, “such as”, “excludes”, “for example”, or similar words are deemed to include “without limitation”; (j) the word “or” is deemed to be an inclusive “or”; and (k) a party’s choices under this Agreement are in its sole discretion. Any translation of the English-language version of this Agreement is for convenience only, and the English-language version will govern. The parties expressly wish to execute this Agreement and any associated documentation in English.
9.12. Entire Agreement.
This Agreement (including any expressly incorporated terms) sets forth the complete and exclusive agreement between the parties relating to its subject matter and supersedes all prior oral and written agreements, understandings, and communications (including any requests for quote, requests for information, requests for proposal, or the like), click-through agreements and embedded end-user license agreements, regarding its subject matter. The parties agree that they are not relying on any representations, promises or warranties that are not included in this Agreement, including any Order Forms, as an inducement to enter this Agreement. If, however, a signed master subscription agreement governing Customer’s SaaS purchases is in effect between the parties, then that agreement will govern and the terms of this Agreement will not supersede its terms. This Agreement does not supersede or apply to (and no rights are granted hereunder with respect to) third-party services or software, APIs separately licensed by Go Fig or a third party, and software and other materials made available on Go Fig’s developer pages (collectively, “Development Materials.”) Customer must separately procure rights, if any, that may be required to use or access Development Materials. Purchase orders issued by Customer are for Customer’s internal purposes only and Go Fig rejects, and in the future is deemed to have rejected, any purchase order terms. Invoices issued by Go Fig will be effective solely to specify the charges for the Go Fig subscription and Consulting Services. All other terms and conditions printed or included on, or referenced in, such purchase orders, invoices, and other ordering documents or correspondence, that purport to add to or modify the terms of this Agreement are expressly rejected by the parties and will be of no force or effect.