Last updated: 11/02/21
Please read this Customer Agreement ("Agreement") before clicking the "I accept" button, and/or using The First Party Labs, Inc., ("Firstparty") Services (as defined below). By clicking the "I Accept" button, and by using the Firstparty Solution in any way, you and the entity that you represent ("Customer") are unconditionally consenting to be bound by and becoming a party to this Agreement with Firstparty and you represent and warrant that you have the authority to bind such entity to this Agreement. If you do not unconditionally agree to all of the terms of this Agreement, use of the Firstparty Solution is strictly prohibited. If Customer has executed, or subsequently executes, a separate agreement with Firstparty with respect to use of the Services or Firstparty Solution ("Other Agreement"), then the terms and conditions of such Other agreement shall govern and control your use of the Services.
PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY FIRSTPARTY IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Firstparty will make a new copy of this Agreement available on the Firstparty Solution. We will also update the "Last Updated" date at the top of the Agreement. If we make material changes to this Agreement, we may (and, where required by law, will) also provide notification of changes in another way that we believe is reasonably likely to reach you, such as via e-mail or another manner through the Firstparty Solution (which may include posting an announcement on the Firstparty Solution). Firstparty may require you to provide consent to the updated Agreement in a specified manner before further use of the Firstparty Solution is permitted. If you do not agree to any of the changes after receiving a notice of such changes, you shall stop accessing the Platform and using Firstparty Solution or any other Services. Otherwise, your continued use of the Firstparty Solution constitutes your acceptance of such changes.
1. Definitions. Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.
1.1 "Access Protocols" means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Firstparty Solution.
1.2 "Authorized User[WC1]" means each of Customer’s employees, agents, and independent contractors who are authorized to access the Firstparty Solution pursuant to Customer’s rights under this Agreement.
1.3 "Customer Content" means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Services.
1.4 "Documentation" means the technical materials provided by Firstparty to Customer in hard copy or electronic form describing the use and operation of the Firstparty Solution.
1.5 "Error" means a reproducible failure of the Firstparty Solution to substantially conform to the Documentation.
1.6 "Error Corrections" means bug fixes or workarounds intended to correct Errors in the Firstparty Solution.
1.7 "Firstparty Solution" means the Firstparty software-as-a-service application that allows Authorized Users to access certain features and functions through a web interface.
1.8 "Intellectual Property Rights" means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.9 "Licensed Material" means results, reports, materials, and documentation made available to Customer as part of the Services.
1.10 "Order Form" means any online or written form provided by Firstparty evidencing the initial designation of the Services by the Customer and any subsequent orders to purchase the Services.[WC2]
1.11 "Professional Services[WC3]" means professional services provided by Firstparty to Customer as described in any Order Form (as may be further elaborated in any statement of work).
1.12 "Sensitive Data[WC4]" means sensitive content or data, including but not limited to, (i) export controlled materials or (ii) data regulated by HIPAA, PCI, GDPR, the Gramm Leach Bliley Act or any other regulations or data privacy laws.
1.13 "Services" means any services provided by Firstparty to Customer under this Agreement as set forth herein, or in an applicable Order Form, including, but not limited to, the provisioning of the Firstparty Solution and Professional Services.
1.14 "Supported Environment" means the minimum hardware, software, and connectivity configuration specified from time to time by Firstparty as required for use of the Firstparty Solution. The current requirements are described in the Documentation.
2. EVALUATION LICENSE.
2.1 General. If Customer has not yet purchased access to the Firstparty Solution, but has obtained access to the Firstparty Solution for evaluation purposes ("Evaluation Services"), then the terms and conditions of this Section 2 shall apply and those in Sections 3.1 – 3.2, 5, 8.1, and 11.1 do not apply. Reference Section 3 for the terms applicable to purchased Services.
2.2 Evaluation License. Subject to the terms and conditions of this Agreement (excluding Section 3.1 – 3.2), Firstparty hereby grants Customer the right to use the Evaluation Services (including any software embedded therein) solely for the purposes of evaluating the performance and functionality of the Firstparty Solution in accordance with the Documentation.
2.3 Disclaimer. ANY DATA CUSTOMER ENTERS INTO THE EVALUATION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE EVALUATION SERVICES BY OR FOR CUSTOMER, DURING THE EVALUATION SERVICES WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES ACCESS TO THE SAME SERVICES AS THOSE COVERED BY THE EVALUATION SERVICES.
3. Provision of PAID Services.
3.1 Access. Subject to Customer’s payment of the Fees (defined below), Firstparty will provide Customer with access to the Firstparty Solution. On or as soon as reasonably practicable after the Effective Date Firstparty will provide to Customer the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Customer and its Authorized Users to access the Firstparty Solution in accordance with the Access Protocols. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Firstparty Solution, and notify Firstparty promptly of any such unauthorized use known to Customer.
3.2 Support Services[WC5]. Subject to the terms and conditions of this Agreement, Firstparty will exercise commercially reasonable efforts to (a) provide support for the use of the Firstparty Solution to Customer, and (b) keep the Firstparty Solution operational and available to Customer, in each case in accordance with its standard policies and procedures.
3.3 Hosting. Firstparty will, at its own expense, provide for the hosting of the Firstparty Solution, provided that nothing herein will be construed to require Firstparty to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access the Firstparty Solution from the Internet.
4. Intellectual Property.
4.1 License Grant. Subject to the terms and conditions of this Agreement, Firstparty grants to Customer a non-exclusive, non-transferable (except as permitted under Section 13.5 (No Assignment)) license during the Term (as defined below), solely for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in the herein, or as applicable in an Order Form, (a) to access and use the Firstparty Solution and in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the Firstparty Solution. Customer may permit any Authorized Users to access and use the features and functions of the Firstparty Solution as contemplated by this Agreement.
4.2 Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Firstparty Solution, Licensed Material or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Firstparty Solution, Licensed Material or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Firstparty Solution or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Firstparty Solution, except as permitted by law; (e) interfere in any manner with the operation of the Firstparty Solution or the hardware and network used to operate the Firstparty Solution; (f) modify, copy or make derivative works based on any part of the Firstparty Solution or Documentation; (g) access or use the Firstparty Solution to build a similar or competitive product or service; (h) attempt to access the Firstparty Solution through any unapproved interface; or (i) otherwise use the Firstparty Solution, Licensed Material, or Documentation in any manner that exceeds the scope of use permitted under Section 4.1 (License Grant) or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Customer acknowledges and agrees that the Firstparty Solution will not be used, and is not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Firstparty or its licensors on the Licensed Material or any copies thereof.
4.3 Ownership. The Firstparty Solution, Licensed Material, and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Firstparty and its suppliers. All rights in and to the Firstparty Solution and Documentation not expressly granted to Customer in this Agreement are reserved by Firstparty and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Firstparty Solution, Documentation, or any part thereof.
4.4 License to Licensed Material. Subject to the terms and conditions of this Agreement, Firstparty grants Customer a perpetual, royalty-free, fully-paid, nonexclusive, non-transferable (except as permitted under Section 13.5 (No Assignment)), non-sublicensable license to use the Licensed Material solely for Customer’s internal business purposes.
4.5 Open Source Software. Certain items of software may be provided to Customer with the Firstparty Solution and are subject to "open source" or "free software" licenses ("Open Source Software"). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 4.3 (Ownership) or 11 (Indemnification). Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Firstparty makes such Open Source Software, and Firstparty’s modifications to that Open Source Software, available by written request at the notice address specified below.
4.6 Feedback. Customer hereby grants to Firstparty a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Services. Firstparty will not identify Customer as the source of any such feedback.
5. Fees; payments.
5.1 Fees. The fees for access to and use of the Firstparty Solution ("Fees") and are based on usage and, unless otherwise specified herein, Fees for the Firstparty Solution and other Services are charged at the rates set forth on the Firstparty Pricing webpage https://firstpartyhq.com/pricing. Unless otherwise expressly specified, the Fees are calculated at the end of each month based on Customer’s usage of the Firstparty Solution. Customer acknowledges that the amount billed each month may vary depending on Customer’s use of the Firstparty Solution and Customer authorizes Firstparty to charge Customer at Customer’s current, valid method of payment accepted by Firstparty (such as, a credit card) (each a "Payment Method") for such varying amounts. All payment obligations are non-cancelable, and Fees are non-refundable. At any time, Customer may change its Payment Method information by emailing Firstparty at support@firstpartyhq.com. [WC6]If a payment is not successfully settled, due to insufficient funds, or otherwise, Customer remains responsible for any uncollected amounts and authorizes Firstparty to continue billing the Payment Method, as it may be updated. Customer acknowledges that for certain Payment Methods, the issuer of Customer’s Payment Method may charge a foreign transaction fee or other charges.
5.2 Changes[WC7]. Firstparty reserves the right to change the Fees or its pricing model at any time during the Term. Any such change to Fees, rates or pricing shall go into effect no earlier than thirty (30) days after the change is posted to the Firstparty Pricing webpage.
5.3 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Firstparty’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees, the provision of the Services, or the license of the Firstparty Solution to Customer. Customer will make all payments of Fees to Firstparty free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Firstparty will be Customer’s sole responsibility, and Customer will provide Firstparty with official receipts issued by the appropriate taxing authority, or such other evidence as the Firstparty may reasonably request, to establish that such taxes have been paid.
5.4 Interest. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
6. Customer Content and Responsibilities; performance data.
6.1 License; Ownership. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third party licenses, consents and permissions needed for Firstparty to use the Customer Content to provide the Services. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for Firstparty to use the Customer Content submitted by or on behalf of Customer or Authorized Users for the purposes set forth in this Agreement. Customer grants Firstparty a non-exclusive, worldwide, royalty-free and fully paid license during the Term (a) to use the Customer Content as necessary for purposes of providing and improving the Services, and (b) to use the Customer trademarks, service marks, and logos as required to provide the Services. The Customer Content, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. Customer agrees that Firstparty may store and collect certain diagnostic information about the routine operations of the Firstparty Solution (including, without limitation, its performance, accuracy, security, availability, usage rates, number of active users, and behavioral statistics) ("Performance Data"), and Firstparty may use Performance Data to develop, improve, support, and operate its products and services during and after the term of this Agreement, which may include aggregated and anonymized data based upon such Performance Data, so long as such data does not reveal any personally identifiable information or specific traits of any particular individual person or of Customer[WC8]. All rights in and to the Customer Content not expressly granted to Firstparty in this Agreement are reserved by Customer.
6.2 Customer Warranty. Customer represents and warrants that any Customer Content will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Firstparty’s system or data; (e) otherwise violate the rights of a third party; or (f) contain any Sensitive Data. Firstparty is not obligated to back up any Customer Content. Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer agrees that any use of the Firstparty Solution contrary to or in violation of the representations and warranties of Customer in this Section 6.2 (Customer Warranty) constitutes unauthorized and improper use of the Firstparty Solution.
6.3 Additional Customer Obligations. Customer shall provide all notices, and collect all consents required under applicable laws in connection with Customer’s use of the Firstparty Solution. Customer agrees to provide each of its end users with a link to the Firstparty privacy policy located at https://firstpartyhq.com/privacy/.
6.4 Customer Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order to access the Firstparty Solution. Customer will have the ability to export Customer Content out of the Firstparty Solution [WC9]and is encouraged to make its own back-ups of the Customer Content. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
7. professional services. Where the parties have agreed to Company’s provision of Professional Services, the details of such Professional Services will be set out in an Order Form or a mutually executed statement of work ("SOW"). The Order Form or SOW, as applicable, will include: (a)a description of the Professional Services; (b)the schedule for the performance of the Professional Services; and (c)the Fees applicable for the performance of the Professional Services. Each Order Form or SOW, as applicable, will incorporate the terms and conditions of this Agreement. To the extent that a conflict arises between the terms and conditions of an Order Form or SOW and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form or SOW, as applicable, expressly states that it supersedes specific language in the Agreement.
8. Warranties and Disclaimers.
8.1 Limited Warranty. Firstparty represents and warrants that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. Provided that Customer notifies Firstparty in writing of the breach within thirty (30) days following performance of the defective Services, specifying the breach in reasonable detail, Firstparty will, as Customer’s sole and exclusive remedy, for any breach of the foregoing, re-perform the Services which gave rise to the breach or, at Firstparty’s option, refund the Fees paid by Customer for the Services which gave rise to the breach. Firstparty further warrants to Customer that the Firstparty Solution will operate free from Errors during the Term, provided that such warranty will not apply to failures to conform to the Documentation to the extent such failures arise, in whole or in part, from (a) any use of the Firstparty Solution not in accordance with this Agreement or as specified in the Documentation; (b) any use of the Firstparty Solution in combination with other products, equipment, software or data not supplied by Firstparty; or (c) any modification of the Firstparty Solution by any person other than Firstparty or its authorized agents. Provided that Customer notifies Firstparty in writing of any breach of the foregoing warranty during the Term, Firstparty will, as Customer’s sole and exclusive remedy, provide the support described in Section 3.2 (Support Services).
8.2 Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 8.1 (LIMITED WARRANTY) IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8 (wARRANTIES AND DISCLAIMERS), AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE Services, LICENSED MATERIAL AND Documentation ARE PROVIDED "AS IS," AND FIRSTPARTY MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. FIRSTPARTY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE FIRSTPARTY SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE.
9. Limitation of Liability
9.1 Types of Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
9.2 Amount of Damages. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY customer TO FIRSTPARTY DURING THE twelve (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL Firstparty’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
9.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 9 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
10. Confidentiality.
10.1 Confidential Information. "Confidential Information" means any nonpublic information of a party (the "Disclosing Party"), whether disclosed orally or in written or digital media, that is identified as "confidential" or with a similar legend at the time of such disclosure, or that the receiving party (the "Receiving Party") knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, Documentation, and all enhancements and improvement thereto will be considered Confidential Information of Firstparty.
10.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Firstparty). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.
10.3 Exceptions. The confidentiality obligations set forth in Section 10.2 (Protection of Confidential Information) will not apply to any information that (a) is at the time of disclosure, or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
11. Indemnification.
11.1 By Firstparty. Firstparty will defend at its expense any suit brought against Customer, and will pay any settlement Firstparty makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Firstparty Solution infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Firstparty Solution becomes, or in Firstparty’s opinion is likely to become, the subject of a claim of infringement, Firstparty may, at Firstparty’s option: (a) procure for Customer the right to continue using the Firstparty Solution; (b) replace the Firstparty Solution with non-infringing software or services which do not materially impair the functionality of the Firstparty Solution; (c) modify the Firstparty Solution so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the Term then in effect, and upon such termination, Customer will immediately cease all use of the Firstparty Solution and Documentation. Notwithstanding the foregoing, Firstparty will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the Firstparty Solution not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Firstparty Solution in combination with other products, equipment, software or data not supplied by Firstparty; or (iii) any modification of the Firstparty Solution by any person other than Firstparty or its authorized agents (collectively, the "Exclusions" and each, an "Exclusion"). This section states the sole and exclusive remedy of Customer and the entire liability of Firstparty, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
11.2 By Customer. Customer will defend at its expense any suit brought against Firstparty, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, or (b) Customer’s breach or alleged breach of Section 6.2 (Customer Warranty). This section states the sole and exclusive remedy of Firstparty and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
11.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit, provided however, the indemnifying party will not settle any claim without the indemnified party's prior written approval, which shall not be unreasonably delayed or withheld (unless such settlement contains a full release of the Indemnified Party); and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
12. Term And Termination.
12.1 Term. The term of this Agreement commences on the earlier of your clicking of the "I ACCEPT" button, and when you first access the Firstparty Solution and shall continue for the period set forth on the pricing[WC10] page, or if nothing is stated, until more than 10,000,000 items of structured data are collected and sent to Firstparty in connection with the Services in a given calendar month[WC11] (the "Evaluation Period"). The Evaluation Services set forth in Section 2.2 and all of Customer’s rights to use the Evaluation Services will terminate at the end of the Evaluation Period or immediately in the event that Customer breaches any material provision of this Agreement. Following the Evaluation Period, this Agreement may renew upon the mutual agreement of the parties and the Agreement will continue in full force and effect in accordance with an applicable order form, or if nothing is stated, as long Customer continues to access the Firstparty Solution, or in accordance with an Order Form if Customer has ordered Professional Services pursuant to an Order Form.
12.2 Termination. Either party may terminate this Agreement at any time with or without cause by providing notice via email to the other party and requesting termination. Customer may terminate by emailing Firstparty at [insert email address]. Firstparty may terminate by emailing the email address provided by Customer. Termination will be effective the following business day after notice is received by the non-terminating party.
12.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder (unless stated herein as perpetual licenses) will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in Section 10 (Confidentiality); and (c) any amounts owed to Firstparty under this Agreement will become immediately due and payable. Sections 1 (Definitions), 4.2 (Restrictions), 2.3 (Disclaimer), 4.3 (Ownership), 4.5 (Open Source Software), 5 (Fees; Payments), 8.2 (Disclaimer), 9 (Limitation of Liability), 10 (Confidentiality), 11 (Indemnification), 12.3 (Termination for Breach), 12.4 (Effect of Termination), and 13 (Miscellaneous) will survive expiration or termination of this Agreement for any reason.
12.4 Data Extraction. For twenty (20) days after the end of the Term, as applicable, Firstparty will make Customer Content available to Customer through the Firstparty Solution on a limited basis solely for purposes of Customer retrieving Customer Content, unless Firstparty is instructed by Customer to delete such data before that period expires. After such period, Firstparty will discontinue all use of Customer Content and destroy all copies of Customer Content in its possession.
13. Miscellaneous.
13.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Arizona[WC12], without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for Arizona for any lawsuit filed there against Customer by Firstparty arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
13.2 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Firstparty, or any products utilizing such data, in violation of the United States export laws or regulations.
13.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
13.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
13.5 No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
13.6 Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services, Licensed Material and Documentation.
13.7 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
13.8 Independent Contractors. Customer’s relationship to Firstparty is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Firstparty.
13.9 Notices. Where Firstparty requires that you provide an e-mail address, you are responsible for providing Firstparty with your most current e-mail address. In the event that the last e-mail address you provided to Firstparty is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Firstparty’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Firstparty at support@firstpartyhq.com. Such notice shall be deemed given when received by Firstparty by electronic mail.
13.10 U.S. Government Restricted Rights. If Customer is a government end user, then this provision also applies to Customer. The software contained within the Platform and the Services and provided in connection with this Agreement has been developed entirely at private expense, as defined in FAR section 2.101, DFARS section 252.227-7014(a)(1) and DFARS section 252.227- 7015 (or any equivalent or subsequent agency regulation thereof), and is provided as "commercial items," "commercial computer software" and/or "commercial computer software documentation." Consistent with DFARS section 227.7202 and FAR section 12.212, and to the extent required under U.S. federal law, the minimum restricted rights as set forth in FAR section 52.227-19 (or any equivalent or subsequent agency regulation thereof), any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by this Agreement and shall be prohibited except to the extent expressly permitted by this Agreement.
13.11 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the Firstparty.