Terms & Conditions
Updated on December 15, 2022
These Terms and Conditions (“Terms”) govern each order form (“Order Form”) and any applicable statement of work attached to the Order Form ( the “Statement of Work” or “SOW”), addenda, exhibits and amendments by and between AgentSync and the Customer, and AgentSync’s provision and Customer’s use of AgentSync’s Software Services (as further defined in Section 1.1 (License Grant)) and related implementation, training, maintenance and technical support services (collectively, with the Software Services, the “Services”). These Terms collectively with the Order Form, SOW, addenda, exhibits and amendments, all of which are incorporated herein, are referred to as the “Agreement.” By signing an Order Form and/or using AgentSync’s services, Customer agrees to these Terms. Any capitalized terms not defined in these Terms have the meanings ascribed to them in the Order Form, SOW, or applicable addenda, exhibit and/or amendment.
Table of Contents
1. License and Services
1.1 License Grant. Subject to the terms and conditions of this Agreement, AgentSync hereby grants Customer a limited, non-exclusive, non-sublicensable, non-revocable and non-transferable subscription license to access and use, in object code form, AgentSync’s software detailed on the Order Form, including all upgrades, updates, and versions thereto (collectively, the “Software Services”) during the Term.
1.2 Software Services. In accordance with the Order Form, the applicable SOW and these Terms, AgentSync will provide the Services described in any SOW to a workpersonlike industry standard.
2. Customer Responsibilities and Obligations
2.1 Customer Responsibilities. Customer will dedicate sufficient resources, including IT technicians and Salesforce administrators to implement the Software Services. Customer shall also be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Software Services, including without limitation, hardware, servers, software, operating systems, networking, internet connection, web servers, email and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
2.2 Restrictions. Customer will not directly or indirectly (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms of the Services or any related documentation or data ); (b) modify, translate, or create derivative works based on the Services or (except to the extent expressly permitted by AgentSync); (c) use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third party; (d) remove any proprietary notices or labels; or (e) delete, mask or in any manner alter the copyright, trademark, or other proprietary rights notices of AgentSync appearing on the Software, Services or documentation as delivered to Customer. Customer understands that AgentSync sets and enforces limits on Customer’s use of the APIs and AgentSync may find it necessary to limit the number of API requests the Customer makes. In such event, AgentSync is not responsible for disruption to any existing Customer integration(s) that occur because of Customer exceeding AgentSync’s API limitations.
2.5 Third-Party Services. The Software Services may allow Customer to access third party websites, including other service providers and merchants from whom Customer may obtain services or goods, including, without limitation, Salesforce.com and/or NIPR. Customer acknowledges AgentSync does not operate or control the products or services offered by these third parties, and AgentSync is not a party to any agreements, dealings or transactions between Customer and these third parties. AgentSync takes no responsibility for any advertisements, services (if applicable) claims or other information supplied to Customer by these third parties whether or not they are designated by AgentSync as “certified, “recommended”, “endorsed” or otherwise. Customer uses such third party services at Customer’s own risk and AgentSync does not guarantee or warrant any third party services or goods in any way.
2.6 Service Levels; Data Security; Disaster Recovery Plan. Customer acknowledges the Software Services and Customer’s instance of the Software Services are hosted on the Salesforce cloud service platform described at the Salesforce Overview and Customer’s service level commitments, service uptime and service availability are all provided by Salesforce. Salesforce’s description of system status, security and compliance is set forth at Trust Salesforce (“Salesforce Data Security Policy”), and disaster recovery plan is set forth at Salesforce Disaster Recovery Plan (“Salesforce DRP”). Customer acknowledges and accepts that since the Software Services are hosted on the Salesforce Platform, all producer-related data provided by Customer to enable the provision of AgentSync’s Services (“Producer Data”) is stored by Salesforce, not AgentSync. As such, Customer agrees Salesforce, and not AgentSync, is responsible and liable for the security and backup/recovery of stored Producer Data in accordance with Salesforce Data Security Policy and the Salesforce DRP.
3. Warranty; Disclaimer
3.1 By AgentSync. AgentSync represents and warrants that during the Term (a) AgentSync shall perform the Implementation Services in a professional and workpersonlike manner; (b) the Software Services will conform to the Software Service’s then-current documentation in all material respects; and (c) the Software Services will provide the NIPR data to Customer as such data is provided by NIPR to AgentSync. Notwithstanding the foregoing, AgentSync cannot guarantee the accuracy of the underlying NIPR data and Customer is solely responsible for its use of the NIPR data. Customer shall hold AgentSync harmless and indemnify AgentSync from any third party claims that result from Customer’s use of the NIPR data.
3.2 By Customer. Customer represents and warrants that during the Term, Customer shall be responsible for and comply with all laws, regulations and third party rights applicable to Customer’s access and use of Services, including without limitation, the NIPR Use Agreement, Salesforce Pass-Through Terms (if applicable). Customer represents and warrants that it is has obtained all legally compliant notifications and consent for, collection, use and storage of the Customer personal information used in the provision of the Services.
3.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY MAKES ANY WARRANTIES TO THE OTHER PARTY, AND EACH PARTY DISCLAIMS ALL WARRANTIES, ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY (EITHER IN FACT OR BY OPERATION OF LAW), INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A SUFFICIENT OR PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. THE WARRANTIES SET FORTH IN THIS SECTION 3 (WARRANTY; DISCLAIMER) ARE THE ONLY WARRANTIES MADE BY AGENTSYNC IN CONNECTION WITH THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 3 (WARRANTY; DISCLAIMER), THE SERVICES AND ALL INFORMATION PROVIDED IN THE SERVICES ARE PROVIDED “AS IS” AND AGENTSYNC MAKES NO, AND EXPRESSLY DISCLAIMS ALL, OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICES. NO DATA OR INFORMATION OBTAINED BY CUSTOMER FROM AGENTSYNC THROUGH THE SOFTWARE SERVICES SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE OF ANY KIND. AGENTSYNC’S WARRANTIES DO NOT APPLY TO, AND AGENTSYNC SHALL NOT BE RESPONSIBLE OR LIABLE FOR, THIRD-PARTY INFORMATION, DATA, SOFTWARE, SERVICES OR TECHNOLOGY, INCLUDING WITHOUT LIMITATION THE NIPR SERVICE AND DATA AND THE SALESFORCE CLOUD PLATFORM OR OTHER SERVICES. CUSTOMER SPECIFICALLY ACKNOWLEDGES THE INFORMATION AND DATA PROVIDED THROUGH THE SERVICES IS PROVIDED BY NIPR AND OTHER THIRD PARTIES, AND MAY CONTAIN INACCURACIES, OMISSIONS, ERRORS, INACCURATE DATES AND OTHER DEFECTS OR DEFICIENCIES, AND AGENTSYNC WILL NOT BE LIABLE FOR ANY DAMAGES, LOSSES, COSTS OR EXPENSES OF ANY KIND RESULTING FROM USE OF OR INABILITY TO USE OF INFORMATION AND DATA CONTAINED IN THE SERVICES. AGENTSYNC SHALL HAVE NO LIABILITY FOR CUSTOMER’S USE OF ANY INFORMATION OBTAINED THROUGH THE SERVICES. AGENTSYNC’S WARRANTY OBLIGATIONS ARE EXPRESSLY SUBJECT TO THE SERVICES BEING USED IN ACCORDANCE WITH THIS AGREEMENT, DOCUMENTATION AND ANY OTHER INSTRUCTIONS PROVIDED BY AGENTSYNC. CUSTOMER ACKNOWLEDGES THE SERVICES ARE COMPLEX WITH A VARIETY OF DEPENDENCIES, AND AS SUCH, AGENTSYNC DOES NOT WARRANT OR REPRESENT THAT SERVICES ARE ERROR-FREE OR THAT THE USE OF THE SERVICES WILL BE SECURE, OR UNINTERRUPTED, NOR DOES AGENTSYNC MAKE ANY WARRANTY OR REPRESENTATION AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES MAY BE TEMPORARILY UNAVAILABLE FOR SCHEDULED MAINTENANCE OR FOR UNSCHEDULED EMERGENCY MAINTENANCE, EITHER BY AGENTSYNC OR BY THIRD-PARTY PROVIDERS, OR BECAUSE OF OTHER CAUSES BEYOND AGENTSYNC’S REASONABLE CONTROL.
4. Fees and Payment
4.1 Fees. Customer will pay AgentSync the then applicable fees set forth in the Order Form for the Services (“Fees”) in US dollars in accordance with the payment terms in the Order Form . Unless otherwise provided in this Agreement, the Fees are not refundable. Customer shall be responsible for all taxes (other than U.S. taxes based on AgentSync’s net income). Customer agrees to reimburse AgentSync for taxes incurred by AgentSync within 30 days after AgentSync provides Customer with an invoice and accounting for such costs. At Customer’s request, AgentSync will provide original receipts and documentation supporting such costs. Unless as otherwise specified herein or in an Order Form, (i) fees are based on the Services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant term.
4.2 Payment. Unless stated otherwise in the Order Form, invoices are due within 30 days after the date of invoice. Payments made after their due date will incur a daily simple interest from the original invoice due date at a rate equal to 1% per month or the maximum rate permitted by applicable law, whichever is lower, rounded up to the nearest month. Customer shall pay all interest and costs of collection, including but not limited to, reasonable attorneys’ fees and court costs. If Customer believes AgentSync has billed Customer incorrectly, Customer must contact AgentSync no later than 30 days after the due date on the first invoice in which the error or problem appeared, to receive an adjustment or credit. Inquiries should be directed to AgentSync’s customer support department.
4.3 Suspension of Service and Acceleration. If any charge owing by Customer under this Agreement more than thirty (30) days overdue, AgentSync may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under this Agreement so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full. AgentSync will give Customer at least 10 days’ prior notice that its account is overdue, before suspending Services to Customer.
5.1 Confidential Information. “Confidential Information” means business, financial and technical information and materials provided by one party (“Discloser”) to the other party (“Recipient”) identified by Discloser as “confidential” or “proprietary,” or that Recipient otherwise knows or should reasonably know by the content or context of the information is confidential. AgentSync’s Confidential Information includes without limitation, whether or not marked or identified as confidential: (a) non-public information regarding features, functionality and performance of the Service; (b) information regarding AgentSync’s pricing, product roadmaps and strategic marketing plans; and (c) non-public documentation and other materials related to the Services.
5.2 Exceptions. This Agreement imposes no obligation on the Recipient with respect to information the Recipient can establish: (a) was in the possession of or was known by the Recipient prior to its receipt from the Discloser without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by the Recipient from a third party without an obligation to keep such information confidential; or (d) is independently developed or created by the Recipient without use of or reference to Discloser’s Confidential Information.
5.3 Protection. Recipient shall protect from unauthorized disclosure any Confidential Information disclosed by Discloser in the same manner Recipient protects its own Confidential Information, but using at least reasonable care. Each party agrees to maintain confidentiality of the terms of this Agreement and will not disclose any of the terms without prior written approval of the other party. Notwithstanding the foregoing, the existence of this Agreement shall not be considered Confidential Information.
5.4 Use and Disclosure. Recipient may use Discloser’s Confidential Information only for performing its obligations and exercising rights in connection with this Agreement. Except as otherwise expressly provided in this Section 5.4 (Use and Disclosure), neither party receiving Confidential Information of the other may disclose it to anyone without the prior written consent of the Discloser, except to (a) the Recipient’s own employees, consultants, service providers and agents to whom disclosure is necessary to fulfill the purposes set forth in this Agreement and who are advised about and the confidential nature of the information, and who are bound by confidentiality obligations at least as protective as those set forth in this Agreement; (b) to implement, perform and enforce the terms of this Agreement; (c) by law; or (d) under appropriate nondisclosure terms to an existing or potential investor, acquiring company, bank or other financial institution in connection with a merger, acquisition, financing, loan or similar corporate transaction.
5.5 Legally Compelled Disclosure. Notwithstanding the foregoing, either party may disclose Confidential Information if required by law or regulatory authorities, provided that if Recipient is required to disclose Confidential Information by applicable law, regulatory authorities or court order, Recipient shall notify Discloser of the required disclosure promptly in writing and shall cooperate with Discloser in any lawful action to contest or limit the scope of the required disclosure before disclosing any Confidential Information. If the Recipient is compelled pursuant to a legal proceeding or otherwise required by law to disclose the other party’s Confidential Information, then before any such disclosure the Recipient will promptly notify the Discloser so the Discloser may seek a protective order or other appropriate remedy and/or waive compliance with this Agreement and the Recipient shall use its best efforts to obtain confidential treatment for such Confidential Information. In any such legally compelled disclosure, only that portion of the Discloser’s Confidential Information that is legally required to be disclosed may be disclosed.
6. Proprietary Rights
6.1 Customer Data. Customer shall own all right, title and interest in and to all data provided by Customer to enable the provision of AgentSync’s Services, including but not limited to Producer Data (“Customer Data”).
6.2 AgentSync Services. AgentSync shall own and retain all right, title and interest in and to (a) the Services and Software Services, all improvements, enhancements, modifications and derivative works thereof; (b) any software, applications, inventions or other technology developed in connection with the Services and support; (c) all comments, test results and other feedback on the Services; and (d) all intellectual property rights related to any of the foregoing.
7. Personal Information and Data Security
7.2 Data Processing. AgentSync shall process Personal Information only for the purposes of providing the Services and in accordance with these Terms.
7.3 Service Providers. Customer acknowledges and agrees that AgentSync may engage third-party service providers to assist AgentSync in providing the Services. AgentSync shall enter into a written agreement with such service providers that contains contractual obligations to protect any Personal Information shared by AgentSync with such service providers that are no less protective than those set forth under the Terms.
7.4 Data Rights. AgentSync shall promptly notify Customer upon receipt of any complaint or request (including “data subject access” requests) relating to AgentSync’s obligations under the relevant data protection law that may impact Customer. AgentSync shall provide cooperation and assistance in relation to such complaint or request as reasonably requested by Customer, including acting timely in accordance with Customer’s instructions and timetables. When as required by Customer and by applicable law, AgentSync will assist Customer in identifying, producing or deleting Customer Personal Information that is (i) in the possession of AgentSync, or (ii) stored in facilities under management or control of AgentSync, including for the purposes of Customer satisfying an order or request of a governmental entity or third party with access rights over the Customer Personal Information.
7.5 Data Security. AgentSync shall implement and maintain industry-standard technical and organizational security measures that are reasonably designed to prevent unauthorized access to and disclosure of Personal Information processed through the Services. Upon becoming aware of any unauthorized access to or disclosure of Personal Information processed by AgentSync or its authorized service providers (“Security Incident”), AgentSync shall promptly notify Customer of such Security Incident, make reasonable efforts to identify the cause of such Security Incident, and take the steps that AgentSync deems necessary and reasonable to remediate the cause of such Security Incident to the extent remediation is within AgentSync’s reasonable control. The obligations herein shall not apply to incidents caused by Customer or Customer’s users.
7.6 Audits. Upon Customer’s written request at reasonable intervals (but no more than one time annually), and subject to the confidentiality obligations set forth in the Terms, AgentSync shall make available to Customer that is not a competitor of AgentSync, or to Customer’s independent, third-party auditor that is not a competitor of AgentSync, a copy of AgentSync’s then most recent third-party audits or certifications, as applicable.
7.7 Customer’s Obligations. Customer acknowledges and agrees that it is solely responsible for providing an appropriate consumer-facing privacy notices and obtaining the consents that are required under applicable laws, rules, and regulations, to enable AgentSync to process the Customer Personal Information through the Services.
7.8 Data Protection Laws. AgentSync will comply with all applicable laws governing or relating to privacy, data protection, data security and the handling of data security breaches when processing Personal Information. When applicable and requested by Customer from time to time, AgentSync will promptly execute and cause its affiliates and agents to promptly execute, supplemental security and data protection terms, and controller-to-processor data transfer agreements, on such other terms and conditions as mutually agreed upon and as required for the processing or transfer of Personal Information in accordance with the applicable requirements of law.
7.9 CCPA/CPRA. AgentSync certifies that it understands the rules, restrictions, requirements and definitions of the California Consumer Privacy Act (“CCPA”) and/or California Privacy Rights Act (“CPRA”). To the extent that AgentSync processes any Personal Information which is governed by the CCPA and/or CPRA (the “California Personal Information”), the parties acknowledge and agree that AgentSync is a service provider under the CCPA. AgentSync (a) acknowledges and confirms that it does not receive, retain, use, or disclose any California Personal Information for any purpose other than for the specific purpose of performing the Software Services, or as otherwise permitted by the CCPA/CPRA, and (b) agrees to refrain from taking any action that would cause any transfers of California Personal Information to or from AgentSync to qualify as a sale under the CCPA/CPRA. AgentSync shall safekeep and protect the California Personal Information in accordance with all applicable laws, regulations, rules and guidelines, including but not limited to, privacy protections under the CCPA/CPRA. For the avoidance of doubt, any terms used in this Section 7.9 (CCPA/CPRA) are as defined by the California Consumer Privacy Act and/or the California Privacy Rights Act.
7.10 NIPR and Salesforce Business Partners. The parties agree and acknowledge that the Services sync producer data between a Customer’s instance on the Salesforce.com Platform and the NIPR. In order to provide the Services, AgentSync shares personal information with the NIPR and Salesforce.com. These business partners use the personal information to provide their own services to Customer. Unless Customer provides AgentSync access to the Customer account for implementation, troubleshooting, or customer support purposes, AgentSync will have no access to Customer producer information. If Customer requests that AgentSync establish an instance on the Salesforce.com Platform on Customer’s behalf, AgentSync will share personal information with Salesforce.com to establish and set up Customer’s account to fulfill Customer’s request.
8.1 By AgentSync. AgentSync shall defend Customer against any third party legal action or proceeding based on a claim AgentSync misappropriated any trade secret or the Service infringes any patent, copyright, trademark or other intellectual property right, and indemnify and hold Customer harmless against all costs, expenses (including reasonable attorneys’ fees), losses, liabilities and damages incurred by Customer as a result of such claim; provided (a) AgentSync is promptly notified of any and all threats, claims and proceedings related thereto; (b) given the opportunity to assume sole control over defense and settlement and reasonable assistance in defense and settlement of the claim. AgentSync will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (a) not supplied by AgentSync; (b) made in whole or in part in accordance with Customer specifications; (c) that are modified after delivery by AgentSync; (d) combined with other technology, services, products, processes or materials where the alleged infringement relates to such combination; (e) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (f) where Customer’s use of the Service is not strictly in accordance with this Agreement or (g) where Customer’s use of the Service is in any unauthorized or unlawful manner or for any unauthorized or unlawful purpose or otherwise in violation, or outside the scope, of the rights granted herein. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by AgentSync to be infringing, AgentSync may, at its option and expense (i) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality; (ii) obtain for Customer a license to continue using the Service; or (iii) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service. The foregoing states the sole and exclusive remedy for breach of this indemnity.
8.2 By Customer. Customer shall defend AgentSync, AgentSync’s licensors, suppliers and vendors, and their affiliates (“AgentSync Indemnitees”) against any third party legal action or proceeding based on a claim arising out of Customer’s use of the Services and/or NIPR data, including without limitation, in violation of this Agreement, the law or a third party’s intellectual property, privacy or other proprietary right, and indemnify and hold the AgentSync Indemnitees harmless against all costs, expenses (including reasonable attorneys’ fees), losses, liabilities and damages incurred by the AgentSync Indemnitees as a result of such claim; provided (a) Customer is promptly notified of any and all threats, claims and proceedings related thereto; (b) given the opportunity to assume sole control over defense and settlement and reasonable assistance in defense and settlement of the claim. Customer will not be responsible for any settlement it does not approve in writing.
9. Limitation of Liability
9.1 Liability. Except with respect to the obligations set forth in Section 4 (Fees and Payments), and Section 8 (Indemnification), neither party shall be liable for (a) any consequential, incidental, indirect, special or exemplary damages, however caused and under any theory of liability, whether asserted in contract, tort (including negligence), strict liability or otherwise, including without limitation, any loss of profit (whether incurred directly or indirectly), any loss of business or goodwill, damage to reputation, any interruption or error of service, loss or corruption of data, cost of procurement of substitute technology, goods or services, or other intangible loss, or any matter beyond such party’s reasonable control, or (b) any damages in excess of the fees received by AgentSync from Customer during the twelve (12) months preceding the claim, whether or not such party has been advised of or should have been aware of the possibility of any such damages and notwithstanding the failure of the essential purpose of any remedy.
10. Term and Termination
10.1 Term. This Agreement is effective as of the Effective Date of the Order Form and will continue in effect for the Initial Term specified in the Order Form, and shall automatically renew for additional twelve-month periods (each, a “Renewal Term,” and collectively with the Initial Term, the “Term”), unless either party notifies the other party in writing that it does not wish to renew the Agreement at least 30 days prior to the end of the Initial Term or then-current Renewal Term, or this Agreement is terminated pursuant to Section 10.2 (Termination for Breach) below.
10.2 Termination for Breach. In addition to any other remedies it may have, either party may terminate this Agreement if (i) the other party breaches any of the terms or conditions of this Agreement in any material respect and fails to cure the breach within 30 days after receiving written notice describing in reasonable detail the alleged breach; provided, however that this right to cure does not apply to payment obligations, or (ii) the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.3 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 10.2 (Termination for Breach) above, AgentSync will refund Customer any prepaid fees covering the remainder of the Term of all Order Forms after the effective date of termination. If this Agreement is terminated by AgentSync in accordance with Section 10.2 (Termination for Breach) above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to AgentSync for the period prior to the effective date of termination, in accordance with Section 4.3 (Suspension of Service and Acceleration).
10.4 Effects of Termination. Customer may download any Customer Data that may be stored by AgentSync for up to 30 days following termination. Upon written request by the other party, each party shall return or destroy (and certify such destruction in writing) the Confidential Information of the other party. Within thirty (30) days of termination of this Agreement, Customer agrees to remove the Software Services or allow AgentSync access to remove the Software Services from its environment, as applicable.
11.1 Marketing Reference. AgentSync may use Customer’s corporate name and logo in printed, online and electronic promotional materials (for example, as a representative or exemplary customer of AgentSync on AgentSync’s website.)
11.2 No Insurance Transactions; No Licenses. AgentSync does not engage in any insurance transactions within the meaning of applicable law. While AgentSync endeavors to assist Customer in maintaining compliance with applicable insurance licensing requirements, Customer is solely responsible for complying with such requirements. Customer shall be solely responsible for the decisions it makes when using the Services.
11.3 Licensing Transaction Disclaimer. In the course of providing the Software Services, AgentSync may be providing information to the Customer. This information shall not be construed as legal, financial or other professional advice. AgentSync does not warrant or represent to the accuracy of the information provided to Customer, and is not responsible for any damages resulting from any decisions of Customer which are made in reliance on the information provided from the Software Services. Customer represents and agrees that the use of information provided from the Software Services shall be at its own risk.
11.4 Notices. Any legal notice, report, statement, request or other communication required or permitted under this Agreement shall be in writing and delivered personally or by courier (effective upon receipt), by registered U.S. mail, postage prepaid (effective three (3) business days after mailing), or sent by facsimile or electronic mail (effective upon receipt, as evidenced by acknowledgement or confirmation of receipt), if to Customer then to the addresses set forth on the Order Form, and if to AgentSync to: 3601 #450 Walnut Street, Denver, CO 80205 Attn: Legal Department and to firstname.lastname@example.org. Notice of change of address shall be given in the same manner as other communications.
11.5 Entire Agreement. This Agreement, including the Order Form and any SOWs, addenda and amendments, constitute the entire agreement between the parties as of the Effective Date and supersedes all prior written or oral proposals, discussions, communications or agreements related to the same subject matter. Customer represents and covenants that in entering into this Agreement, it is not relying upon any representations, warranties, and/or other statements of any sort other than those appearing in the Agreement. No terms, provisions or conditions of any purchase order, invoice or other business form or written authorization used by Customer will apply or have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, the Order Form or a Statement of Work, regardless of any failure of either party to object to such terms, provisions or conditions. The terms of each Order Form shall supersede and control any conflicting and inconsistent terms of these Terms.
11.6 Survival. Defined terms, accrued but unpaid payment obligations, and provisions which by their nature are intended to survive, including without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability, shall survive termination of this Agreement.
11.7 Amendments and Waivers. No amendment of an Order Form shall be valid unless made in writing and signed by duly authorized representatives of the parties. AgentSync may amend these Terms from time to time and shall become effective and binding upon Customer and Customer’s continued use of the Software Services upon the posting of such Terms to AgentSync’s website. It is Customer’s responsibility to review these Terms, as amended, periodically. Each time Customer uses AgentSync Software Services, and Customer agrees to be bound by the terms of the most current Terms published.
11.8 Assignment. Neither this Agreement nor any rights or obligations hereunder may be assigned, transferred or sublicensed by Customer without the prior written consent of AgentSync, which consent shall not be unreasonably withheld. This Agreement shall inure to the benefit of and be binding on the parties and their respective successors and permitted assigns.
11.9 Force Majeure. Neither party shall be held liable or responsible to the other party nor be deemed to have defaulted under or breached the Agreement for failure or delay in fulfilling or performing any term of the Agreement to the extent, and for so long as, such failure or delay is caused by or results from causes beyond the reasonable control of the affected party including but not limited to fires, earthquakes, floods, embargoes, wars, acts of war (whether war is declared or not), global pandemic, health emergencies, insurrections, riots, civil commotions, strikes, lockouts or other labor disturbances, acts of nature, or acts, omissions or delays in acting by any governmental authority or other party, or any non-AgentSync-specific network or telecommunications failure or congestion that affects a Service. This provision shall not apply to payment obligations.
11.10 Export Laws and Regulations. Each party hereby acknowledges that the rights and obligations set forth in the Agreement are subject to the laws and regulations of the United States relating to the export of products and technical information. Without limitation, each party shall comply with all such laws and regulations.
11.11 Independent Parties. Each party is independent of the other, and nothing contained herein shall be deemed or construed to create any partnership, joint venture, agency, fiduciary, employment or other similar relationship. The parties are not, and shall not represent themselves as a principal, agent, partner or joint venture of the other. No party shall attempt to act, or represent itself as having the power, to bind the other party or create any obligation on behalf of the other party. Each party shall be solely responsible for the employment, direction and control of its employees and their acts.
11.12 No Third-Party Beneficiaries. This Agreement is made solely and specifically between and for the benefit of AgentSync and Customer, and no other person or entity shall have any rights, interests or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third-party beneficiary or otherwise.
11.13 Dispute Resolution
a. Binding Arbitration. Any claim will be submitted for resolution by binding arbitration pursuant to the rules then pertaining of the CPR Institute for Dispute Resolution for Non-Administered Arbitration (available at www.cpradr.org), or successor (“CPR”), except where those rules conflict with these provisions, in which case these provisions control. The arbitration will be held in Denver, Colorado.
b. Equitable Relief. Notwithstanding anything to the contrary in this Agreement, in addition to any other available remedies at law, each party shall be entitled to protect its Confidential Information and intellectual property and proprietary rights through equitable relief via any court of competent jurisdiction. Each party shall be entitled to seek equitable relief (including restraining order, injunction or specific performance) in the event of a breach by the other party of the such party’s proprietary rights, or of the other party’s confidentiality obligations, without having to post a bond or other security, or to prove damages or the inadequacy of damages.
11.14 Governing Law. This Agreement shall be governed and interpreted in accordance with the laws of the State of Delaware without giving effect to principles of conflict of laws with the venue for adjudication in Denver, Colorado. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are expressly excluded and shall not apply.
11.15 Remedies. All rights, relief, remedies conferred upon a party by these Terms or any other agreement are cumulative of, and without prejudice to, any other right, relief, or remedy available to such party at law or equity for any breach of these Terms, any other agreement between Customer and AgentSync, and/or any other statutory, common law, or other legal or equitable right of such party.
11.16 Severability. If any provision of this Agreement is invalid or unenforceable, that provision will be limited to the minimum extent necessary to render such provision valid and enforceable, and enforce the same to achieve the parties’ intent as stated herein, and so that this Agreement will otherwise remain in full force and effect and enforceable, and the remaining provisions will remain in full force and effect. If the provision cannot be so limited, the provision will be deemed severed from this Agreement and such invalidity shall not affect the validity and enforceability of the remaining portions of this Agreement. The parties further agree to use their best efforts to substitute a valid provision for the invalid provision which most closely approximates the intent and economic effect of the invalid provision.
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