These terms and conditions (“Terms and Conditions”) supplement the End User License Agreement statement of work (“SOW”) entered into by Double A Labs Corp., a Delaware corporation with offices located at 1600 E. 7th Street, Austin, Texas 78702 (“DBLA”) and you (“Client”) (each a “Party” and collectively “Parties”).
In signing the SOW, Client agrees, in consideration of the mutual covenants, terms, and conditions set forth herein and therein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, as follows:
1. Definitions.“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Administrator Seat” means a “Registered User” whose account has the administrative privileges to create, edit, and publish content within the Platform.
“Agreement” has the meaning set forth in the preamble.
“Annual Subscription” shall mean a subscription period of 12 months, renewing annually for successive yearly periods unless terminated prior to the end of the then-current year.
“Authorized Users” means all Persons authorized by CLIENT to access and use the Services, including use of the Double A platform, under the Terms and Conditions and the SOW.
“Confidential Information” has the meaning set forth in Section 7.1.
“CLIENT” has the meaning set forth in the preamble.
“Client Data” has the meaning set forth in Section 8.2.
“Client Materials” means the Services, Specifications, Documentation, and any and all other information, data including but not limited to User Data, documents, all devices, know-how, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by the Client or any subcontractor in connection with the Services or otherwise comprise or relate to the Services or DBLA Systems.
“Concurrent Video Users” shall mean the number of simultaneous users accessing the video feature of the Platform.
“DBLA” has the meaning set forth in the preamble.
“DBLA Materials” means the Services, Specifications, Documentation, and any and all other information, data including but not limited to User Data, documents, all devices, know-how, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by DBLA or any subcontractor in connection with the Services or otherwise comprise or relate to the Services or DBLA Systems.
“Discloser” has the meaning set forth in Section 7.1.
“Documentation” means all generally available documentation relating to the Services, including all user manuals, operating manuals, and other instructions, specifications, documents, and materials, in any form or media, that describe any component, feature, requirement, or other aspect of the Services, including any functionality, testing, operation, or use thereof.
“Effective Date” has the meaning set forth in the SOW.
“Fees” has the meaning set forth in Section 6.1.
“Force Majeure Event” has the meaning set forth in Section 12.8.
“Guest User” means an individual who logs into the Platform that does not have a user account. Each Guest User is given a default set of permissions and privileges until they officially register for the Platform.
“Intellectual Property Rights” or “IPR” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs, and trojan horses (whether introduced through uploaded files or otherwise).
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“Platform”means the DBLA platform that the Client is receiving access to under the SOW.
“Recipient” has the meaning set forth in Section 7.1.
“Registered Users” shall mean an individual who logs into the Platform and creates a user account (such users are given a default set of permissions and privileges and can be upgraded within the Platform to different permission levels).
“Reimbursable Expenses” has the meaning set forth in Section 6.
“Representatives” means, with respect to a Party, that Party’s employees, officers, directors, consultants, agents, independent contractors, service providers, and legal advisors.
“Room” shall mean individually named spaces that are accessed through a unique URL path which are sub areas to host content within a “World.”
“Personal Information” means information provided to DBLA by or at the direction of CLIENT, information which is created or obtained by DBLA on behalf of CLIENT, or information to which access was provided to DBLA by or at the direction of CLIENT, in the course of DBLA’s performance under the Terms and Conditions and the SOW that: (i) identifies or can be used to identify an individual (including, without limitation, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, health, genetic, medical, or medical insurance data, answers to security questions, and other personal identifiers), both subclauses (i) and (ii), including, without limitation, all highly sensitive personal information. CLIENT’s business contact information is not by itself deemed to be Personal Information.
“Service Error” means any failure of any Service to be available or otherwise perform in accordance with the Terms and Conditions and the SOW and the Specifications.
“Services” has the meaning set forth in the statement of work.
“Specifications” means the specifications for the Services set forth herein.
“Spectator” shall mean a user who logs into the Platform that does not have access or chooses to enter a “room” without the avatar feature which prohibits microphone or video capabilities (such user will be able to click on interactable objects and communicate via the room chat).
“Support Request” has the meaning set forth in Section 4.5
“Support Services” has the meaning set forth in Section 5.
“Subscription Term” has the meaning set forth in applicable statement of work.
“User” shall mean an individual who accesses the Platform via the domain provided to Client by DBLA.
“User Data” means any and all information reflecting the access or use of the Services by or on behalf of CLIENT or any Authorized User, including any end user profile-, visit-, session-, impression-, click through-, or click stream-data, and any statistical or other analysis, information, any and all information, data, materials, works, expressions, or other content, including any that are (a) uploaded, submitted, posted, transferred, transmitted, or otherwise provided or made available by or on behalf of CLIENT or any Authorized User for processing by or through the Services, or (b) collected, downloaded, or otherwise received by DBLA or the Services for CLIENT or any Authorized User pursuant to the Terms and Conditions and the SOW or any Service Order or at the written request or instruction of CLIENT or such Authorized User. All output, copies, reproductions, improvements, modifications, adaptations, translations, and other derivative works of, based on, derived from, or otherwise using any User Data are themselves also User Data. For avoidance of doubt User Data includes Client Data and Personal Information.
“World” shall mean the entire Platform that is accessed via a world-specific URL provided to Client by DBLA.
2.1. Services and Service Orders.
Description of Services. Throughout the Subscription Term and at all times in connection with its actual or required performance under the Terms and Conditions and the SOW, DBLA shall, in accordance with all terms and conditions set forth in the Terms and Conditions and the SOW, provide to CLIENT and its Authorized Users the services set forth in the SOW (“Services”).
2.2 Access and Use. Unless otherwise expressly provided for on the SOW, DBLA hereby grants to CLIENT, solely for the duration of the Subscription Term, exercisable by and through its Authorized Users, a non-exclusive, non-transferable and non-sublicensable right to:
(a) access and use the Services,
(b) generate, print, copy, upload, download, store, and otherwise process all GUI, audio, visual, digital, and other output, displays, and content as may result from any access to or use of the Services; and
(c) perform, display, execute, and distribute and otherwise make available to Authorized Users, any DBLA Materials solely to the extent necessary to access or use the Services in accordance with the terms and conditions of the Terms and Conditions and the SOW.
2.3 Documentation License. DBLA hereby grants to CLIENT a non-exclusive, non-sublicensable, non-transferable license to prepare, reproduce, print, download, and use a reasonable number of copies of the Documentation during the Term as may be necessary or useful for any use of the Services permitted under the Terms and Conditions and the SOW;
2.4 CLIENT SaaS Manager. CLIENT shall appoint and, in its reasonable discretion, replace, a CLIENT employee to serve as CLIENT’s primary contact with respect to the Services, who will have the authority to act on behalf of CLIENT in matters pertaining to the Support Services, including the submission and processing of Support Requests.
3. Use Restrictions; Testing and Acceptance.
3.2 Use Restrictions. CLIENT shall not: (a) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make any DBLA Materials available to any third party, except as expressly permitted by the Terms and Conditions and the SOW; (b) use or authorize the use of the Services or Documentation in any manner or for any purpose that is unlawful under applicable Law; and (c) store or transmit Malicious Code; attempt to gain unauthorized access to any service or its related systems or networks; copy, adapt, reformat, reverse-engineer, disassemble, decompile, download, translate or otherwise modify any service through automated or other means.
3.3 Excess Use. If CLIENT’s uses of the Services exceed the volume of use permitted by the access grant then in effect under Section 2 and/or the SOW (including as to the number of uses, users, machines, or locations), CLIENT shall pay DBLA the Fees attributable to the excess use, outlined in the SOW.
4. Support and Maintenance. DBLA shall provide platform maintenance and technical support services including, but not limited to, engineering and functionality support but, for the avoidance of doubt, excluding event support (collectively, “Support Services”) for the Services in accordance with the provisions of this Section 4. The Support Services are included in the Services, and DBLA shall not assess any additional Fees, costs, or charges for such Support Services.
4.1 Support Service Responsibilities. DBLA shall make commercially reasonable efforts to correct all Service Errors including by providing defect repair, programming corrections, and remedial programming. DBLA shall not be liable for any delays caused by Client’s failure to timely provide to DBLA any assets, Client IPR, materials, approvals, or any other information requested by DBLA. Client’s failure to provide such information and/or materials may cause rush work for DBLA and Client may therefore be subject to additional costs and/or fees.
4.2 Service Monitoring and Management. DBLA shall monitor and manage the Services to optimize availability of the Services that meets or exceeds the requirements needed to effectuate the intent of the Terms and Conditions and the SOW.
4.3 Service Maintenance. DBLA shall maintain the Services to optimize availability of the Services that meets or exceeds the requirements needed to effectuate the intent of the Terms and Conditions and the SOW.
4.4 Support Service Level Requirements. DBLA shall make commercially reasonable efforts to correct all Service Errors and respond to and make reasonable attempts to resolve all Support Requests within a commercially reasonable timeframe.
4.5 Support Requests. The CLIENT Service Manager shall notify DBLA of Support Requests by email, telephone, or such other means as the Parties may hereafter agree to in writing.
5.1 Information Security. Throughout the Subscription Term and at all times in connection with its actual or required performance of the Services hereunder, DBLA shall make the Services available in accordance with the applicable Laws.
6. Fees and Payment.
6.1 Fees. CLIENT shall pay all fees in accordance with the rates, pricing, and discounts set forth in the SOW. (“Fees”).
6.2 Taxes. Unless otherwise set forth in a Service Order, all Fees and amounts set forth these Terms and Conditions or the SOW or any Service Order are exclusive of taxes. Unless CLIENT qualifies for any specific exemption(s), CLIENT shall be solely responsible for all sales, service, value-added, use, excise, consumption, and any other taxes, duties, and charges of any kind, if any, imposed by any federal, state, or local governmental entity on any amounts payable by CLIENT under the Terms and Conditions and the SOW, other than any taxes imposed on, or with respect to, DBLA’s income, revenues, gross receipts, personnel, real or personal property, or other assets. The Parties shall reasonably cooperate to more accurately determine each Party’s tax liability and to minimize such liability to the extent legally permissible.
6.3 Invoices. Unless otherwise specified in the SOW, DBLA shall invoice CLIENT for all unpaid Fees and Reimbursable Expenses on the first day of each calendar month after such Fees are incurred or, at the option of DBLA, at the end of the Subscription Term, in electronic format, via such delivery means and to such address as are specified by CLIENT in writing from time to time. Each separate invoice shall: (a) clearly identify the Services to which it relates; (b) list each Fee item separately; and (c) include sufficient detail for each line item to enable CLIENT to verify the calculation thereof.
6.4 Payment Terms.
(a) CLIENT shall pay all properly invoiced amounts promptly upon receipt of DBLA’s invoice.
(b) (b) CLIENT shall make all payments hereunder in either: (1) US dollars with payments to Double A Labs, 1600 E. 7th Street, Austin, Texas 78702; (2) or by wire or ACH to Routing #: 322271627; Account # 563681969, or to such other address or account as is specified by DBLA in writing from time to time; or (3) with a credit card via a Quickbooks link provided by DLBA upon request.
7. Confidential Information.
7.1 Confidentiality. “Confidential Information” means the SOW, all written, electronic or oral information, disclosed by one Party (the “Discloser”) to the other (the “Recipient”), including, without limitation, data, documents, know-how, methods, processes, hardware, software, deliverables, technical or functional descriptions, plans, reports, revenues, costs, budgets, forecasts, strategies, systems, security measures, customers, suppliers, and strategic partners. The Recipient will keep confidential any Confidential Information disclosed to it by the Discloser. With respect to any Confidential Information, the Recipient shall: (i) maintain confidentiality using the same care that it would use for its own confidential information, but in any event with reasonable care; (ii) use the Confidential information solely for the purposes of the SOW; (iii) cease use of such Confidential Information immediately upon termination or expiration of the SOW and either return or permanently destroy it upon request of the Discloser; and (iv) not attempt to reverse engineer, decompile or create derivate works from or using the Confidential Information. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with Laws, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other in order to seek protective relief, if legally permissible, and provided such assistance as may be reasonably requested to limit or prevent such disclosure. The confidentiality obligations of this Section 7.1 shall terminate with respect to any Confidential Information when the Recipient can prove that such information was (i) in the public domain at the time of Discloser’s communication to the Recipient, or it subsequently entered the public domain through no fault of the Recipient, (ii) in the Recipient’s possession free of any obligation of confidence at the time of the Discloser’s communication to the Recipient, (iii) subsequently rightfully communicated to the Recipient free of any obligation of confidence, or (iv) was or is independently developed by the Recipient without reference or recourse to the Discloser’s Confidential Information.
7.2 Destruction of Confidential Information. Upon the Discloser’s request, but in any event no later than 14 business days upon termination or expiration of these Terms and Conditions or the SOW, except as otherwise provided in these Terms and Conditions (including as reasonably required for the Recipient to perform its obligations or exercise its rights hereunder), the Recipient will, and will confirm in a writing provided by a duly appointed officer that: (i) all materials and media embodying Confidential Information of the Discloser, including all originals, copies, reproductions and summaries of such Confidential Information have been returned to the Disclosing Party or permanently destroyed (other than backups made in the ordinary course of business, which shall remain subject to the restrictions herein contained); and (ii) all copies of Confidential Information of the Disclosing Party in its possession, power or control, which are present on magnetic media, optical disk, volatile memory or other storage device, have been permanently destroyed (other than backups made in the ordinary course of business, which shall remain subject to the restrictions herein contained) in a manner that ensures that such Confidential Information is rendered unrecoverable.
7.3 Injunction. Each Party agrees that either Party’s violation of the provisions of this Section 7 will cause immediate and irreparable harm to the other Party for which money damages are not an adequate remedy at law. Therefore, the Parties agree that, in the event either Party breaches or threatens to breach said provision or covenant, such action shall constitute a material breach, and the other Party shall be entitled to seek an injunction to restrain said breach or threatened breach, without posting any bond or other security.
7.4 Further Assurances. Each Recipient further agrees to:
(a) (a) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care;
(b) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ noncompliance with, the terms of this Section 7; and
(c) notify the Discloser in writing immediately of any unauthorized disclosure or use of the Discloser’s Confidential Information and cooperate with the Discloser to protect the confidentiality and ownership of all Intellectual Property Rights, privacy rights, and other rights therein.
8. Intellectual Property Rights.
8.1 Ownership of User Data. DBLA is and will remain the owner of all right, title, and interest in and to all User Data used in the Platform, including all Intellectual Property Rights relating thereto, subject only to the limited license granted in Section 8.2.
8.2 Limited License to Use User Data: “Client Data”. Subject to the Terms and Conditions and the SOW, the Parties may agree in a separate Service Order that CLIENT will have access to certain portions of the User Data, those portions hereinafter “Client Data”, the CLIENT therein being granted a limited, exclusive, non-transferable, and non-sublicensable license to utilize the Client Data in the United States as necessary to advance the intent of these Terms and Conditions and the SOW. If the Parties agree in a Service Order that CLIENT owns certain portions of User Data, subject to the terms and conditions of the Terms and Conditions and the SOW, CLIENT hereby grants DBLA a limited, royalty-free, fully-paid up, non-exclusive, non-transferable, and non-sublicensable license to utilize the User Data in the United States as necessary to advance the intent of the SOW and to make improvements to its products and/or Services.
8.3 Ownership of DBLA Materials. As between CLIENT and DBLA, DBLA is and will remain the sole and exclusive owner of all right, title, and interest in and to the DBLA Materials and platform, including all Intellectual Property Rights relating thereto, subject only to the authorization and licenses granted to CLIENT herein.
8.4 Limited Use of Client’s Intellectual Property. Subject to the Terms and Conditions and the SOW, CLIENT hereby grants DBLA a limited, royalty-free, fully-paid up, non-exclusive, non-transferable, and non-sublicensable license to utilize Client’s Intellectual Property, including, but not limited to Client’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, affiliation, or sponsorship in connection with DBLA’s websites, social media, and other media for the purposes of announcement, statement, press release, or other publicity or marketing materials and efforts in recognition of the Double A Platform. DBLA acknowledges and agrees that the license granted to it under this Section does not include the right to modify, edit, translate, include in collective works, or create derivative works of Client’s Intellectual Property in whole or in part, except as specifically permitted herein. CLIENT shall be solely responsible for obtaining all necessary rights to use all copyrighted images, videos, sounds and/or recordings, and aliases, names, likenesses, voices, or other identification appearing in the Client IPR. All necessary clearances and licenses must be fully cleared and licensed prior to such content’s inclusion in the deliverables.
8.5 No Implied Rights. Except for the limited license expressly provided herein, nothing contained in these Terms and Conditions or the SOW shall be construed as granting CLIENT or any third party any right, title, or interest in or to any DBLA Materials, in each case whether by implication, estoppel, or otherwise.
9. Representations and Warranties.
9.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that:
(a) it is a duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has, and throughout the Term and any additional periods during which it does or is required to perform the Services will retain, the full right, power, and authority to enter into the Terms and Conditions and the SOW and perform its obligations hereunder;
(c) the execution of the Terms and Conditions and the SOW by its representative whose signature is set forth at the end of the Terms and Conditions and the SOW has been duly authorized by all necessary corporate or organizational action of such Party; and
(d) when executed and delivered by both Parties, the Terms and Conditions and the SOW will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES IN THE TERMS AND CONDITIONS AND THE SOW, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER OR IN CONNECTION WITH THE TERMS AND CONDITIONS AND THE SOW OR ANY SUBJECT MATTER HEREOF, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, SYSTEM INTEGRATION, TITLE, AND/OR QUIET ENJOYMENT. NO WARRANTY IS MADE BY EITHER PARTY ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE.
9.2 9.2 To the maximum extent permitted by law, in no event shall either party be liable for any exemplary or punitive damages, except to the extent such damages are payable to third parties pursuant to third party claims. Neither party will be liable to the other for any indirect, incidental, special or consequential damages (including lost revenue, profits or savings) arising out of or relating to its performance under the Terms and Conditions and the SOW. To the maximum extent permitted by law, except with respect to (i) a party’s breach of any of the licenses provided in the Terms and Conditions and the SOW, (ii) a party’s breach of the Intellectual Property Rights of the other party, (iii) a party’s breach of its confidentiality or Confidential Information obligations, or (iv) either party’s indemnification obligations, the total aggregate liability for all claims arising from or relating to the agreement, including, without limitation, any cause of action in contract, tort, or strict liability, shall not exceed, the amounts actually paid to DBLA by CLIENT under the SOW for the prior twelve months.
10.1 Indemnification by CLIENT. CLIENT shall indemnify, defend, and hold harmless DBLA, each of its affiliates, and its officers, directors, employees, agents, contractors, permitted successors, and permitted assigns from and against all Losses or claims incurred by DBLA resulting from any Action by a third party to the extent that such Losses or claims do or are alleged to arise out of or result from:
(a) any claim that any User Data is unlawful or actually does or threatens to infringe or misappropriate any Intellectual Property Rights or other rights of any third party, provided however, that CLIENT shall have no liability or obligation with respect to any Action or Losses to the extent that such Action or Losses arise out of or result from any unauthorized access to or use, disclosure, or other processing of User Data, including Personal Information, by or on behalf of DBLA, or through or enabled by the DBLA Systems, whether authorized by DBLA, due to a security breach, or otherwise; or
(b) any use of the Services by CLIENT or any Authorized User that is beyond the scope of or otherwise fails to conform to the express requirements or restrictions of the Terms and Conditions or the SOW or any authorization or approval given in writing by DBLA to CLIENT or such Authorized User.
10.2 Infringement Indemnification by CLIENT. CLIENT shall indemnify, defend, and hold harmless DBLA from and against any and all Losses incurred by DBLA resulting from any Action by a third party that the content provided by CLIENT and contained in the Services, or CLIENT’s or any Authorized User’s use thereof, infringe, misappropriate, or otherwise violate such third party’s Intellectual Property Rights.
10.3 Indemnification by DBLA. DBLA shall indemnify, defend, and hold harmless CLIENT and CLIENT’s officers, directors, employees, agents, permitted successors, and permitted assigns (each, a “CLIENT Indemnitee”) from and against any and all Losses incurred by CLIENT/CLIENT Indemnitee resulting from any Action by a third party other than an Affiliate of CLIENT that CLIENT’s use of the Services (excluding User Data and Third-Party Materials) in accordance with the Terms and Conditions and the SOW (including the Exhibits) infringes or misappropriates such third party’s Intellectual Property Rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from: (a) Third-Party Materials or User Data; (b) access to or use of DBLA Materials in combination with any hardware, system, software, network, or other materials or service not provided by DBLA or specified for CLIENT’s use in the Agreement, unless otherwise expressly permitted by DBLA in writing; (c) modification of DBLA Materials other than: (i) by or on behalf of DBLA; or (ii) with DBLA’s written approval in accordance with DBLA’s written specification; (d) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to CLIENT by or on behalf of DBLA; or (e) act, omission, or other matter described in Section 10.1, whether or not the same results in any Action against or Losses by any DBLA Indemnitee.
10.4 Indemnification Procedure. The Party seeking indemnification shall promptly notify the indemnifying Party in writing of any Action for which it seeks indemnification pursuant to this Section 10 and cooperate with the indemnifying Party at the indemnifying Party’s sole cost and expense. The indemnitee, at its sole discretion, may elect to defend any claim with counsel of its own choice and seek reimbursement of reasonable fees, or may elect that the indemnifying Party defend the claim with its own designated counsel, provided that the indemnitee is entitled to participate in the claim and in any settlement that results.
11. Term and Termination.
11.1 Subscription Term. The term of the subscription will be annual, unless otherwise indicated on the Client SOW. Client may cancel the Client SOW and these Terms and Conditions at any time and for any reason within 90 days from the beginning of the original Subscription Term (the “Trial Period”), provided Client gives notice of cancellation within 10 days prior to the end of the Trial Period. If Client cancels during the Trial Period, the Fees will be prorated according to the number of days that the Services were actually provided. If Client does not cancel the Client SOW within the Trial Period, the Client SOW and these Terms and Conditions will continue for the remainder of the Subscription Term.
11.2 Unless Client gives notice to DBLA of non-renewal at least 30 days prior to the end of the then-current Subscription Term, the Subscription Term will automatically renew for an an additional period of time equal to the original Subscription Term.
11.3 Termination, Notice, and Cure. Either Party may terminate the Client SOW, effective on written notice to the other Party, if the other Party materially breaches the Terms and Conditions or the SOW, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured for 30 days after the non-breaching Party provides the breaching Party with written notice of such breach.
11.4 Termination Upon Insolvency, Bankruptcy, or Other Related Event. Either Party may terminate the SOW, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
11.5 Effect of Termination or Expiration. Upon any expiration or termination of the SOW, except as expressly otherwise provided in the SOW:
(a) CLIENT shall pay to DBLA all amounts due and unpaid as it relates to the Subscription Term;
(b) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will terminate upon the end of the Subscription Term;
(c) CLIENT shall cease all use of any Services or DBLA Materials upon the end of the Subscription Term and (i) within 30 days return to DBLA, or at DBLA’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any DBLA Materials or DBLA’s Confidential Information; and (ii) permanently erase all DBLA Materials and DBLA’s Confidential Information from all systems CLIENT directly or indirectly controls;
(d) notwithstanding anything to the contrary in the Terms and Conditions or the SOW, with respect to information and materials then in its possession or control: (1) DBLA may retain User Data; (iI) DBLA may also retain User Data in its backups, archives, and disaster recovery systems until such User Data is deleted in the ordinary course.
11.6 Survival. The provisions set forth in the Terms and Conditions and the SOW that, by their nature, should survive termination or expiration of the SOW, will survive any expiration or termination of the SOW.
12.1 Further Assurances. On a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to the Terms and Conditions and the SOW.
12.2 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in the Terms and Conditions and the SOW shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
12.3 Public Announcements. Except as otherwise expressly set forth in the Terms and Conditions and the SOW, neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to the Terms and Conditions and the SOW or, unless expressly permitted under the Terms and Conditions and the SOW, otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, affiliation, or sponsorship, in each case, without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed.
12.4 Notices. Except as otherwise expressly set forth in the Terms and Conditions and the SOW, any notice, request, consent, claim, demand, waiver, or other communications under the Terms and Conditions and the SOW have legal effect only if in writing and addressed to a Party as follows (or to such other address or such other person that such Party may designate from time to time in accordance with this Section 12.4):
If to DBLA: Double A Labs 1600 E. 7th Street Austin, Texas 78702 (512) 215-4062 Email: email@example.com Attention: Legal & Business AffairsIf to CLIENT: To the Client’s notice information identified in the SOW
Notices sent in accordance with this Section 12.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by email, if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the 5th day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
12.5 Interpretation. For purposes of the Terms and Conditions and the SOW: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to the Terms and Conditions and the SOW as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders.
12.6 Headings. The headings in the Terms and Conditions and the SOW are for reference only and do not affect the interpretation of the Terms and Conditions and the SOW.
12.7 Entire Agreement. the Terms and Conditions and the SOW constitutes the sole and entire agreement of the Parties with respect to the subject matter of the Terms and Conditions and the SOW and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
(a) Assignment. Neither party shall assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that DBLA may assign its rights or delegate its obligations, in whole or in part, without such consent and upon ten (10) days prior written notice to CLIENT, to (a) one or more of its wholly owned Subsidiaries/Affiliates, or (b) an entity that acquires all or substantially all of the business or assets of such party to which the Terms and Conditions and the SOW pertains, whether by merger, reorganization, acquisition, sale, or otherwise. Any purported assignment or delegation in violation of this Section shall be null and void.
(b) Any purported assignment, delegation, or transfer in violation of this Section 12.7 is void. the Terms and Conditions and the SOW are binding upon and inure to the benefit of the Parties hereto and their respective permitted successors and assigns.
12.8 Force Majeure. Neither Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached the Terms and Conditions and the SOW, for any failure or delay in fulfilling or performing any term of the Terms and Conditions and the SOW, when and to the extent such failure or delay is caused by any acts of God, epidemics, flood, fire, earthquake, or explosion; war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; embargoes or blockades in effect on or after the date of the Terms and Conditions and the SOW; national or regional emergency; passage of Law or any action taken by a governmental or public authority, including imposing any export or import restriction, quota, or other restriction or prohibition; complete or partial government shutdown; or national or regional shortage of adequate power, telecommunications, internet service provider failure or delay, non-DBLA application failure or delay, denial of service attack, or transportation (each of the foregoing, a “Force Majeure Event”), in each case, provided that (i) such event is outside the reasonable control of the affected Party; (ii) the affected Party provides prompt notice to the other Party, stating the period of time the occurrence is expected to continue; and (iii) the affected Party uses diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
12.9 Service Adjustments. DBLA reserves the right to make changes to the Services at any time and from time to time, provided, however, that DBLA will not materially decrease the functionality of the Services during a Subscription Term.
12.10 No Third-Party Beneficiaries. The SOW is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of the Terms and Conditions and the SOW.
12.11 Amendment and Modification; Waiver. No amendment to or modification of the Terms and Conditions and the SOW is effective unless it is in writing and signed by each Party. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in the Terms and Conditions and the SOW, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Terms and Conditions and the SOW will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
12.12 Severability. If any term or provision of the Terms and Conditions or the SOW are invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Terms and Conditions or the SOW or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify the Terms and Conditions and the SOW so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
12.13 Governing Law; Submission to Jurisdiction. The Terms and Conditions and the SOW are governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of the Terms and Conditions and the SOW or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the city of Austin and County of Travis and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
12.14 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under the Terms and Conditions and the SOW would cause the other Party irreparable harm for which monetary damages may not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
Accessing the Website and Account SecurityWe reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users. You are responsible for both:
- Making all arrangements necessary for You to have access to the
- Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
- You may store files that are automatically cached by your Web browser for display enhancement
- If we provide desktop, mobile, or other applications for download, You may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided You agree to be bound by our end user license agreement for such applications.
- If we provide social media features with certain content, You may take such actions as are enabled by such features.
- Modify copies of any materials from this
- Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.e
TrademarksThe Company name, the Company logo, and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs, and slogans on this Website are the trademarks of their respective owners.
- In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
- For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or
- To transmit, or procure the sending of, any advertising or promotional material [without our prior written consent], including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
- To impersonate or attempt to impersonate the Company, a Company employee, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm the Company or users of the Website, or expose them to liability.
- Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website.
- Use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
- Use any device, software, or routine that interferes with the proper working of the
- Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website.
- Attack the Website via a denial-of-service attack or a distributed denial-of-service
- Otherwise attempt to interfere with the proper working of the
- You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns.
Monitoring and Enforcement; TerminationWe have the right to:
- Remove or refuse to post any User Contributions for any or no reason at our sole
- Disclose your identity or other information about You to any third party who claims that material posted by You violates their rights, including their intellectual property rights or their right to
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website.
Content StandardsThese content standards apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Contributions must not:
- Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
- Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
- Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
- Be likely to deceive any
- Promote any illegal activity, or advocate, promote, or assist any unlawful
- Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
- Impersonate any person, or misrepresent your identity or affiliation with any person or
- Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.
- Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
Copyright InfringementIf You believe that any User Contributions violate your copyright, please send a notice of copyright infringement to firstname.lastname@example.org. It is the policy of the Company to terminate the user accounts of repeat infringers.
Reliance on Information PostedThe information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance You place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by You or any other visitor to the Website, or by anyone who may be informed of any of its contents. This Website may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to You or any third party, for the content or accuracy of any materials provided by any third parties.
Changes to the WebsiteWe may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.
Linking to the Website and Social Media FeaturesYou may link to our homepage, provided You do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but You must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent. This Website may provide certain social media features that enable You to:
- Link from your own or certain third-party websites to certain content on this
- Send emails or other communications with certain content, or links to certain content, on this
- Cause limited portions of content on this Website to be displayed or appear to be displayed on your own or certain third-party websites.
- Establish a link from any website that is not owned by
- Cause the Website or portions of it to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking.
- Link to any part of the Website other than the
Links from the WebsiteIf the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If You decide to access any of the third-party websites linked to this Website, You do so entirely at your own risk and subject to the terms and conditions of use for such websites.
Geographic RestrictionsThe owner of the Website is based in the State of Texas in the United States. Access to the Website may not be legal by certain persons or in certain countries. If You access the Website from outside the United States, You do so on your own initiative and are responsible for compliance with local laws.
Disclaimer of WarrantiesYou understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT. YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Limitation on LiabilityTO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR ANY DAMAGES OF ANY KIND, UNDER ANY LEGAL OR EQUITABLE THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. The limitation of liability set out above does not apply to liability resulting from our gross negligence or willful misconduct. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Your Comments and ConcernsThis website is operated by Double A Labs, Inc, 1600 E 7th Street, Austin, TX 78702. All notices of copyright infringement claims should be sent by email to email@example.com. All other feedback, comments, requests for technical support, and other communications relating to the Website should be directed to: firstname.lastname@example.org.
Personal information that Company processes for any purpose shall not be kept for longer than is necessary for that purpose. Different retention periods apply for different types of data. Personal information will be retained:
This link leads to the machine-readable files that are made available in response to the federal Transparency in Coverage Rule and includes negotiated service rates and out-of-network allowed amounts between health plans and healthcare providers. The machine-readable files are formatted to allow researchers, regulators, and application developers to more easily access and analyze data.