CX-RX
ENTERPRISE TERMS OF SERVICE
Version 1.3 (Last Modified May 8, 2023)
These ENTERPRISE TERMS OF SERVICE govern your access and use of Distribution Strategy Group’s services, as defined below. “We”, “our” and “DSG” means the Distribution Strategy Group, LLC (a Colorado limited liability company with offices at 1195 Linden Avenue, Boulder, Colorado 80304) providing Services under the applicable Order Form, order confirmation, statement of work, invoice, e-commerce confirmation or similar agreement issued by DSG; “Customer”, “Client”, “you” and “your” means the client, customer or subscriber agreeing to or accepting these terms. Your Order Form identifies the Services, quantities, charges and other details of your order. The applicable Order Form may also refer to and incorporate documents which may apply to the Services you selected.
Each Order Form and these Enterprise Terms of Service constitute the complete agreement (the “Agreement”) and supersede any prior or contemporaneous discussions, agreements, representations or warranties regarding your order. Other terms and conditions you incorporate in any purchase order or otherwise are not part of the Agreement and do not apply.
DSG is the owner and provider of CX-RX, Customer Experience Prescription, a cloud-based intelligence tool and service which is designed to allow Customer gather data from its customer base about customer experience and customer satisfaction (the “Service”). Customer wishes to purchase a subscription to access and use the Service according to this Agreement and the Order Form. The Parties therefore agree as follows:
1. The Service.
1.1. Your Subscription. Subject to the terms of this Agreement, Customer may purchase a subscription to the Service as specified in one or more ordering documents executed by the Parties that reference this Agreement and describe the business terms related to such subscription (“Order Form”). All subscriptions will be for the period described on the Order Form (“Subscription Period”). Subject to the terms of such Order Form and this Agreement, Customer may access and use the Service. Such use and access is permitted only by individuals authorized by Customer to use the Service for Customer’s own internal business operations (and not for the benefit of any third party) (“Users”). Users may also use DSG’s technical documentation associated with the Service (“Documentation”) solely for Customer’s internal business purposes. Customer will not receive or have access to a copy of the code or software that underlies the Service (collectively the “Software”) or receive a copy of the Software itself. Customer may permit its employees to serve as Users, provided Customer remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement. Any term capitalized and not defined herein will have the definition given to such term in the applicable Order Form.
1.2. Technical Support. DSG will make commercially reasonable efforts to provide basic technical support for the Service.
1.3. Users. As part of the registration process, a single administrative User will receive login credentials from DSG; such User will have the capability to invite any other Users to create accounts on the Service. Customer will ensure that its Users are aware of and bound by obligations and/or restrictions stated in this Agreement and Customer will be responsible for breach of any such obligation and/or restriction by a User. Customer will (a) be responsible for ensuring the security of its account and confidentiality of all user IDs and passwords for the Service, (b) prevent unauthorized access to, or use of, the Service, (c) be fully responsible for monitoring and administrating the various uses and Users of the Service, (d) ensure the quality and integrity of Customer Data, and (e) notify DSG promptly of any unauthorized use of the Service or any breach, or attempted breach, of the security of the Service. Customer is responsible for all activities of its Users on the Service and is responsible for all uses of Customer’s account. DSG may access Customer’s account (i) to respond to technical problems, (ii) in connection with providing and maintaining the Service and the development of new Service features and improvements, (iii) at Customer’s request, (iv) to comply with legal or contractual requirements
1.4. DSG’s Ownership. DSG owns the Service and the Documentation (collectively the “DSG Materials”). DSG retains all right, title and interest (including, without limitation, all patent, copyright, trademarks, trade secret and other intellectual property rights) in and to the Service and the DSG Materials, all related and underlying technology and any updates, enhancements, upgrades, modifications, patches, workarounds, and fixes thereto and all derivative works of or modifications to any of the foregoing. There are no implied licenses under this Agreement and any rights not expressly granted to Customer in this Agreement are expressly reserved by DSG.
2. Restrictions. If there are restrictions on Customer’s use of the Service, such as limitations on the number of types of Users, such restrictions will be in the applicable Order Form and Customer agrees to use and access the Service in compliance with those restrictions. Customer also agrees that it will not (and will not allow Users or third parties to) directly or indirectly (a) modify, translate, copy or create derivative works based on the Service, (b) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, non-public APIs or underlying ideas or algorithms of the Service, except as and only to the extent this restriction is prohibited by law, (c) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, (d) remove or obscure any copyright, trademark or other proprietary notices, legends or DSG branding contained in or on the Service, (e) use the Service in any way that violates any applicable federal, state, local or international law or regulation, (f) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Service, including, without limitation, by introducing viruses and other harmful code or by using flood pings, denial-of-service attacks, or similar methods or technology, (g) use or access the Service to build or support and/or assist a third party in building or supporting products or services competitive to the Service or (h) attempt to probe, scan, or test the vulnerability of the Service or any DSG system or networks. DSG may suspend the Service immediately upon notice to Customer if there is any use of the Service by Customer or Users that in DSG’s reasonable judgment threatens the security, integrity or availability of the Service. However, DSG will use commercially reasonable efforts under the circumstances to (x) provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension; (y) where practicable limit the suspension based on the circumstances leading to the suspension; and (z) remove the suspension as quickly as reasonably practicable after the circumstances leading to the suspension have been resolved.
3. Payment Obligations.
3.1. Fees. Customer will pay for access to and use of the Service as set forth in the Order Form (“Fees”). All Fees will be paid in U.S. dollars. Payment obligations are non-cancelable and, except as expressly stated in this Agreement, non-refundable. We may modify our Fees or introduce new fees in our sole discretion and upon written notice; however, any new or revised Fees will only become effective upon the renewal of a Subscription Period (“Renewal Period”).
3.2. We will invoice you for the Fees and any other applicable fees (e.g. bank transfer fees) in accordance with the Order Form. Customer agrees to pay all invoices submitted in accordance with this Agreement or the Order Form within thirty (30) days after the invoice date. Notwithstanding the foregoing, Customer understands and agrees that if Customer does not pay DSG in accordance with the applicable Order Form, DSG will have the right to suspend Customer’s right to use and access the Service and to terminate this Agreement upon notice to Customer.
3.3. Taxes. Fees stated on the Order Form are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income.
3.4. Failure to Pay. If you fail to pay any Fees in accordance with this Section 4, we may suspend your access to the Service pending payment of such overdue invoices; provided that we give you notice of such non-payment and ten (10) days (from the date of such notice) to remit the overdue Fees in full. If Customer believes that we have billed you incorrectly, Customer must contact us no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Overdue Fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower.
3.5. Adding Users. Users that are given administrative permission by Customer may add Users at any time through the Service, so long as the added users comply with the terms and conditions of this Agreement and only use the Service during the Term for the benefit of the Customer.
4. Term and Termination.
4.1. Agreement Term. This Agreement will become effective on the Subscription Start Date of the first Order Form entered into by the Parties and remain effective for the duration of each Order Form including any renewals thereof. If the Parties terminate this Agreement, it will automatically terminate all Order Forms.
4.2. Order Form Term and Renewal. Subscriptions to access and use the Service commence on the Start Date stated on the applicable Order Form (“Subscription Start Date”) and continue for the duration of the Subscription Period. Each Order Form will renew as stated on such Order Form. If renewal is not stated, the Subscription will not renew. Either party may choose not to renew any Order Form by giving the other party notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Period.
4.3. Termination for Cause. Either party may terminate this Agreement upon written notice to the other party if the other party materially breaches this Agreement and such breach is not cured within thirty (30) days after the non-breaching party provides written notice of such breach.
4.4. Effect of Termination. If Customer terminates this Agreement as a result of DSG’s uncured breach, we will refund any unused, prepaid Fees for the remainder of the then-current Subscription Period (as stated on the applicable Order Form). Upon any termination for cause by DSG, Customer will pay any unpaid Fees covering the remainder of the then-current Subscription Period after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any Fees payable to us for the period prior to the effective date of termination. Upon any termination of this Agreement, all rights and licenses granted by DSG hereunder will immediately terminate; Customer will no longer have the right to access or use the Service. Within 30 days of any termination or expiration, DSG will delete Customer’s account credentials and passwords.
4.5. Survival. Sections 1.4, 4, 5, 7, 8, 9, 10.2, and 10.3will survive any termination or expiration of this Agreement.
5. Warranties and Disclaimers.
5.1. DSG Warranties. DSG represents and warrants that (a) it will comply with all applicable federal, state and local United States laws and regulations with respect to its business operations under this Agreement and all applicable United States laws with respect to its processing and use of Customer Data; (b) the Service will substantially comply in all material respects with the Documentation, (c) it will provide the Support Service in a professional and workmanlike manner, (d) it has used commercially reasonable efforts to ensure that the software underlying the Service and the environment used for the Service contain no Malicious Code, and (e) it uses commercially reasonable efforts to prevent the introduction of Malicious Code into the software underlying the Service and the environment used for the Service. For purposes of the Agreement, “Malicious Code” means any virus, worm, logic bomb or any other code designed to contaminate other computer programs or computer data, consume computer resources, modify, destroy, record or transmit data in a manner not intended by the computer, system or network, or in some other fashion disrupt the normal operation of a computer, system or network. If the Service is not provided in accordance with the above warranty, Customer will promptly notify DSG in writing and DSG will make commercially reasonable efforts to rectify such non-compliance; if DSG is not able to so modify or otherwise fix the Service, DSG will terminate this Agreement and refund any unused pre-paid Fees to Customer. The foregoing remedy is Customer’s sole remedy and DSG’s sole liability if DSG breaches the terms of Section 6.
5.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND DSG EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT DSG DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF WARRANTIES. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
6. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR (I) CUSTOMER’S BREACH OF SECTIONS 2 or 6, OR (II) EITHER PARTY’S OBLIGATIONS UNDER SECTION 8, NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR (A) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) ANY DAMAGES BASED ON USE OR ACCESS, INTERRUPTION, DELAY OR INABILITY TO USE THE SERVICE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR (C) ANY DAMAGES THAT IN THE AGGREGATE EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER FOR THE SERVICE THAT IS OR THE PROFESSIONAL SERVICES THAT ARE THE SUBJECT OF THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GIVES RISE TO SUCH DAMAGES. THESE LIMITATIONS WILL APPLY WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
7. Indemnification.
7.1. DSG’s Indemnification. DSG will defend Customer and its Users, officers, directors, and employees against any third party claim or action brought against Customer to the extent based on the allegation that the Service infringes such third party’s intellectual property rights (patents, utility models, design rights, copyrights and trademarks or any other intellectual property right) and we agree to pay any settlements with respect to the foregoing indemnification obligations that DSG agrees to in a writing signed by DSG’s authorized officer or final judgments awarded to the third party claimant by a court of competent jurisdiction. The foregoing obligations do not apply with respect to the Service or portions or components of either that are (a) not provided by DSG, (b) combined with other products, processes or materials that are not reasonably contemplated by us or our Documentation, or (c) where Customer’s use of the Service is not in accordance with this Agreement or our Documentation.
7.2. Procedures. DSG’s obligations under Section 8.1 are conditioned on Customer (a) providing DSG with prompt written notice of any claim, (b) granting DSG the sole control of the defense and settlement of the claim, and (c) providing reasonable information and assistance to DSG in the defense or settlement of the claim at DSG’s expense. Notwithstanding anything else to the contrary in this Agreement, any obligation of DSG to defend, indemnify and hold Customer harmless hereunder is limited to DSG’s payment for the cost of defense of the third party claim incurred by DSG and the payment of (i) any settlements agreed to by DSG in a writing signed by an officer of DSG, or (ii) final judgments awarded to the third party claimant by a court of competent jurisdiction.
7.3. Options. If Customer’s use of the Service has become, or in DSG’s opinion is likely to become, the subject of any claim of infringement, DSG may at its option and expense, (a) procure for Customer the right to continue using and receiving the Service as set forth hereunder, (b) modify the Service to make it non-infringing, (c) substitute an equivalent for the Service or (d) if DSG, in its sole discretion, determines that options (a)-(c) are not commercially practicable, terminate this Agreement and refund Customer any pre-paid, unused Fees for the remainder of the then-current Subscription Period.
7.4. Sole Remedy. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY IN THIS AGREEMENT, THIS SECTION 8 STATES DSG’S ENTIRE RESPONSIBILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT.
8. Confidentiality.
8.1. Definition. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose business, technical or financial information relating to the Disclosing Party’s business that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (hereinafter referred to as the “Confidential Information” of the Disclosing Party). DSG’s Confidential Information includes non-public information regarding features, functionality and performance of the Service. Customer’s Confidential Information includes the User Information and Customer Data. This Agreement and the information in all Order Forms will be deemed the Confidential Information of both Parties. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information.
8.2. Protection and Use of Confidential Information. The Receiving Party will (a) protect the Disclosing Party’s Confidential Information using the same degree of care used to protect its own confidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care, (b) limit access to the Confidential Information to those employees, affiliates, agents, consultants, legal advisors, financial advisors, and contractors (“Representatives”) who need to know such information in connection with this Agreement and who are bound by confidentiality and non-use obligations to be just as protective of the Disclosing Party’s Confidential Information as the terms of this Agreement; (c) except as expressly set forth herein, will not disclose any of Disclosing Party’s Confidential Information to any third parties without the Disclosing Party’s prior written consent; and (d) will not use the Disclosing Party’s Confidential Information for any purpose other than to fulfill its obligations under this Agreement. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THE DSG SHALL BE PERMITTED TO USE, ANALYZE, COPY, DISTRIBUTE, AND DISPLAY CUSTOMER’S DATA IN AN AGGREGATED AND ANONYMIZED MANNER FOR THE PURPOSE OF IMPROVING THE OPERATION OF THE SERVICE FOR THE BENEFIT OF DSG, THE CUSTOMER, AND OTHER CUSTOMERS OF THE SERVICE; PROVIDED THAT DSG SHALL NOT PERMIT OTHER CUSTOMERS TO DIRECTLY VIEW, ACCESS, OR COPY CUSTOMER’S DATA.
8.3. Nothing above will prevent either party from sharing Confidential Information with prospective investors or acquirors; provided, however, that the foregoing prospective investors or acquirors are bound to standard confidentiality obligations.
8.4. Compelled Access or Disclosure. The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure.
8.5. Feedback. You may from time to time provide suggestions, comments or other feedback to DSG with respect to the Service (“Feedback”). DSG may want to incorporate Feedback into its Service and this clause provides us with the necessary license to do so. You hereby grant to us and our assigns a royalty-free, worldwide, perpetual, irrevocable, fully transferable and sublicenseable right and license to use, disclose, reproduce, modify, create derivative works from, distribute, display and otherwise distribute and exploit any Feedback as we see fit, entirely without obligation or restriction of any kind, except that DSG will not identify you as the provider of such Feedback.
9. Data.
9.1. User Information. In order to use the Service, Customer and its Users are required to provide User Information and other information in order to access the Service. Customer grants DSG and its subcontractors the right to store, process and retrieve the information associated with Customer’s account, such as IP address, username, password, and any personally identifiable information including, without limitation, name, phone number, or email address (“User Information”), provided to DSG in connection with Customer’s use of the Service. Customer represents and warrants that it has obtained express written consent from its Users to transfer User Information to DSG and to process the User Information as contemplated by the Users’ use of the Service. Customer (on behalf of itself and its Users) grants DSG the right to access, use, process, copy, distribute, perform, export and display User Information, only as reasonably necessary (a) to provide the Service to you; (b) to address service, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by you.
9.2. Customer Data. (a) Authorization for DSG to Use Customer Data. The Service is designed to allow DSG to gather and analyze survey data and related information received from Survey Participants who are customers and prospects of Customer who take a survey about the Customer (“Customer Data”). DSG will collect, store and have access to the Customer Data; the Parties anticipate that such Customer Data will be used for the purpose of providing Services to the Customer (including but not limited to advising the Customer on the feedback received from the Survey), to create benchmark data and industry data calculated from anonymized versions of the Customer Data, and for the purpose of support and/or improvement of the Service as described in this Agreement. To the extent that Customer Data is shared with or gathered by DSG, Customer grants DSG and its licensors in perpetuity and throughout the world, a non-exclusive, worldwide, royalty-free, paid-up, transferable right and license to use, process, analyze, copy, distribute in anonymized form, make derivative works from and display such Survey Data, and any related information, for the purpose of providing the Service, providing Professional Services, for improving the Service, for product development, or for research purposes. Customer shall own its Customer Data into perpetuity and shall have the right to share and use Survey Data in any way in its sole discretion. DSG shall provide Customer with access to view and download all Survey Data, including in its raw form during the Subscription Period.
(b) DSG Aggregates and Anonymizes Your Survey Data to formulate Market Data. DSG’s policy is to protect each Customer’s and Survey Participant’s privacy and confidential information subject to and in accordance with this agreement. As we operate the Service, we collect, aggregate and anonymize Survey Data to formulate market data about trends, cycles, demands, projections, predictions or other economic and market conditions (“Market Data”). We continually analyze and modify such Market Data to improve the operation and performance of the Service for the benefit of DSG and the existing and future customers of the Service. Notwithstanding anything else to the contrary herein; provided that the Customer Data is aggregated and anonymized to form Market Data, and no personal identifying information of a Customer or a Survey Participant is revealed to any third party, Customer hereby consents and agrees that DSG is free to use your Customer Data to form Market Data. DSG owns all right, title, and interest in and to such Market Data. Customer acknowledges that Customer Data and related information obtained by DSG may be disclosed in anonymized versions to other customers of DSG, without revealing the identities of the Customer or the Survey Participant(s), provided that any Survey Data shall be aggregated with a sufficient amount of other sources such that it would not be reasonably identifiable to a third party as Customer’s data.
9.3. Usage Data. Usage Data. As we operate the Service, we collect data pertaining to the performance of the Service and measures of the operation of the Service (“Usage Data”). Notwithstanding anything else to the contrary herein; provided that the Usage Data is aggregated and anonymized, and no personal identifying information of Customer is revealed to any third party, the Parties agree that DSG is free to use the Usage Data in any manner. DSG owns all right, title, and interest in and to such Usage Data. For clarity, this section does not give DSG the right to identify Customer as the source of any Usage Data.
9.4. Security Addendum. We will process any User Information and Customer Data that you provide to us in accordance with our data security policy attached hereto as Exhibit A (“Security Addendum”) and with the provisions of this Agreement.
10. General Terms.
10.1. Publicity. Upon request by DSG and written consent by Customer, DSG may identify Customer and use and display Customer’s name, logo, trademarks, or service marks on DSG’s website and in DSG’s marketing materials, including without limitation press releases, announcing Customer, why Customer chose DSG, and how Customer will use DSG. Customer will be given the opportunity to provide input and feedback on the press release, as well as any quote, prior to distribution.
10.2. Force Majeure. Except for Customer’s payment obligations hereunder, neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, pandemics, war, terrorism, and governmental action.
10.3. Changes. Customer acknowledges that the Service is an on-line, subscription-based product, and that in order to provide improved customer experience DSG may make changes to the Service provided, however DSG will not materially decrease the core functionality of the Service.
10.4. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
10.5. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement; a person who is not a party to this Agreement may not enforce any of its terms under any applicable law.
10.6. Email Communications. Notices under this Agreement will be provided as follows: (a) all notices regarding the Service will be sent by email, although we may instead choose to provide notice to Customer through or within the Service, (b) notices to us must be sent by the Customer to jbein@archive.distributionstrategy.com and (c) all notices to Customer will be sent to the email(s) provided through the Service. Notices will be deemed to have been duly given (a) the business day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Service.
10.7. Amendment and Waivers. No modification or amendment to this Agreement will be effective unless made in writing and signed by an authorized representative of both Parties. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
10.8. Severability. This Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
10.9. Assignment. Neither party will assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, we may assign this Agreement in its entirety (including all Order Forms), without the consent of Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets. Any purported assignment in violation of this section is void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
10.10. Governing Law and Venue. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of Colorado, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The Parties acknowledge that this Agreement evidences a transaction involving interstate commerce. The state and federal courts located in Denver, Colorado will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement or its formation, interpretation or enforcement. Each party hereby irrevocably consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
10.11. Entire Agreement. This Agreement, including all referenced pages and Order Forms, if applicable, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. However, to the extent of any conflict or inconsistency between the provisions in this Agreement and any other documents or pages referenced in this Agreement, the following order of precedence will apply: (1) the terms of any Order Form (if any), (2) this Agreement and (3) except as expressly stated herein, any other documents or pages referenced in this Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer’s purchase order or any other Customer order documentation (excluding DSG Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
10.12. Insurance. During the term of this Agreement, DSG will comply with the insurance requirements stated in Exhibit B.
EXHIBIT A
SECURITY ADDENDUM
DSG utilizes infrastructure-as-a-service from a “Cloud Provider” (Azure or other provider) as further described in the Agreement and/or Documentation, and provides the Service to Customer from a Virtual Private Cloud (VPC) hosted by the Cloud Provider (the “Cloud Environment“). DSG depends on Azure capabilities for data security.
DSG maintains a security program under which DSG implements and maintains physical, administrative, and technical safeguards designed to protect the confidentiality, integrity, availability, and security of the Service and Customer Data (the “Security Program”), including, but not limited to, as set forth below. DSG periodically tests and evaluates its Security Program, and may review and update its Security Program as well as this Security Policy upon prior written notice to the Customer, provided, however, that such updates will be designed to enhance and not materially diminish the Security Program.
1. Hosting Location of Customer Data. DSG hosts Customer Data in its Cloud Environment located in the United States for storage and uses multiple U.S. regions for compute. DSG may use any region in the U.S. to store or process data and Customer hereby consents to the transfer of any data to the U.S. for storage and processing purposes in accordance with the Agreement.
2. Encryption. DSG encrypts Customer Data via Azure.
3. System & Network Security.
a. Access Controls. All DSG personnel access to the Cloud Environment is via a unique user ID and consistent with the principle of least privilege.
b. Separation of Environments. DSG logically separates production environments from development and testing environments. The Cloud Environment is both logically and physically separate from DSG’s corporate offices and networks.
c. Firewalls / Security Groups. DSG will protect the Cloud Environment using industry standard firewall or security groups technology via Azure.
4. Incident Detection & Response.
a. Security Incident Reporting. If DSG becomes aware of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data (a “Security Incident“), DSG will notify Customer without undue delay, and in any case, where feasible, notify Customer within 72 hours after becoming aware.
b. Investigation. In the event of a Security Incident as described above, DSG will promptly take reasonable steps to contain, investigate, and mitigate any Security Incident. DSG in its sole discretion may engage a third party incident response/forensics company to help with the mitigation/investigation.
c. Communication and Cooperation. DSG will provide Customer timely information about the Security Incident to the extent known to DSG, including, but not limited to, the nature and consequences of the Security Incident, the measures taken and/or proposed by DSG to mitigate or contain the Security Incident, the status of DSG’s investigation, a contact point from which additional information may be obtained, and the categories and approximate number of data records concerned. DSG’s communications with Customer in connection with a Security Incident will not be construed as an acknowledgment by DSG of any fault or liability with respect to the Security Incident.
5. Shared Security Responsibilities. Without diminishing DSG’s commitments in this Security Policy, Customer agrees:
- DSG does not assess or monitor the content of Customer Data to identify information subject to any specific legal, regulatory or other requirements, and Customer is responsible for making appropriate use of the Service to ensure a level of security appropriate to the particular content of Customer Data; and
- to be responsible for managing and protecting its User roles and credentials, including but not limited to (i) requiring that all Users keep credentials confidential and not share such information with unauthorized parties, (ii) reporting to DSG any suspicious activities in the account or if a user credential has been compromised, (iii) appropriately configuring Users and access, taking into account the nature of its Customer Data, and (iv) maintaining appropriate password uniqueness, length, complexity, and expiration.
EXHIBIT B
INSURANCE REQUIREMENTS
DSG will obtain and maintain at its sole cost and expense during the term of this Agreement, the following minimum insurance coverage, subject only to standard industry exclusions and deductibles:
(i) Professional Liability (Errors and Omissions) Insurance written on a claims-made basis, with limits not less than $1,000,000 in the aggregate.
Upon request, DSG will provide Customer with a certificate of insurance following execution of this Agreement. DSG also will provide a current insurance certificate upon request (not more than once per calendar year) at any time during the duration of this Agreement.