Terms & Conditions
updated: September 4, 2023
EFFECTIVE DAY 1 SEPTEMBER 2023
This SavvyX Terms and Conditions ("Agreement") is entered into by and between the SavvyX entity set forth below ("SavvyX") and the entity or person placing an order for or accessing any part of the Program and its Products ("Customer" or "you"). If you are accessing or using the Program on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to "you" or "Customer" reference your company.
This Agreement permits Customer to purchase subscriptions to online products and other services from SavvyX pursuant to any SavvyX ordering documents, online registration, order descriptions or order confirmations referencing this Agreement ("Order Form(s)") and sets forth the basic terms and conditions under which those products and services will be delivered.
The "Effective Date" of this Agreement is the date which is the earlier of (a) Customer's initial access to any part of the Program (as defined below) through any online provisioning, registration, or order process or (b) the effective date of the first Order Form referencing this Agreement.
As used in this Agreement, "SavvyX" means (a) SavvyX, Inc., an Arizona corporation with a mailing address of 6336 N. Oracle Road, #326-183, Tucson, Arizona, 85704, USA.
Modifications to this Agreement: From time to time, SavvyX may modify this Agreement. Unless otherwise specified by SavvyX, changes become effective for Customer upon renewal of Customer's current Subscription Term (as defined below) or entry into a new Order Form. SavvyX will use reasonable efforts to notify Customer of the changes through communications via Customer's account, email address, or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Order Form, and in any event continued use of the Program after the updated version of this Agreement goes into effect will constitute Customer's acceptance of such updated version.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY PROGRAM, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY PRODUCTS. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT. THIS AGREEMENT CONTAINS MANDATORY ARBITRATION PROVISIONS THAT REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS. PLEASE READ IT CAREFULLY.
"Beta Offerings" means pre-release products, services, features, or functions identified as alpha, beta, preview, early access, or words or phrases with similar meanings.
"Contractor" means an independent contractor or consultant who is not a competitor of SavvyX.
"Customer Properties" means Customer's websites, apps, or other offerings owned and operated by (or for the benefit of) Customer through which Customer uses the Program and its Products to communicate with people.
"Dashboard" means SavvyX's user interface for accessing and administering the Program and its Products that Customer may access via the web or any SavvyX Apps.
"Documentation" means the user documentation provided with the Program.
"Feedback" means comments, questions, suggestions, or other feedback relating to any SavvyX product or service. Feedback does not include any Customer Data.
"Intellectual Property Rights" include all valid patents, trademarks, copyrights, trade secrets, moral rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all renewals and extensions thereof, and all improvements to any of the foregoing, regardless of whether any of such rights arise under the laws of any state, country, or other jurisdiction.
"Laws" means all applicable local, state, federal, and international laws, regulations, and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
"Order Form" means a written or electronic form to order the Program or an online order completed through SavvyX’s website. Upon execution by the parties (or, in the case of electronic orders, confirmation and placement of the order), each Order Form will be subject to the terms and conditions of this Agreement.
"Permitted User" means an employee or Contractor of Customer or its Affiliate who is authorized to access the Program and its Products.
"Sensitive Personal Information" means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards ("PCI DSS"); (ii) any other personal data of an EU citizen deemed to be in a "special category" (as identified in EU General Data Protection Regulation or any successor directive or regulation).
" Program" means SavvyX's proprietary solution(s), including the SavvyX Methodology, Recipes, and Templates, as described in the applicable Order Form.
"Taxes" means any sales, VAT, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of SavvyX.
"Third-Party Platform(s)" means any software, data sources, or other products or services not provided by SavvyX that are integrated with or otherwise accessible through the Program.
2. SavvyX Products
2.1. Products Overview. SavvyX's Program is comprised of the SavvyX Methodology and a collection of Recipes and Templates offered through a single product. The Program is designed to enable Customer to access the information through the entire lifecycle of their relationship with SavvyX.
2.2. Provision of Program and its Products. Each element of the Program is provided on either a subscription basis for a set term designated on the Order Form (each, a "Subscription Term") or a one-time purchase. Customer will purchase and SavvyX will provide the specific Program and its Products as specified in the applicable Order Form.
2.3. Access to Products. Customer may access and use the Program solely for its own benefit and in accordance with the terms and conditions of this Agreement, the Documentation, and any scope of use restrictions designated in the applicable Order Form. Use of and access to the Program is permitted only by Permitted Users. If Customer is given API keys or passwords to access the Program on SavvyX's systems, Customer will require that all Permitted Users keep API keys, user ID, and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual companies for use by Customer employees and may not be shared. If Customer is accessing the Program using credentials provided by a third-party (e.g., Google), then Customer will comply with all applicable terms and conditions of such third-party regarding provisioning and use of such credentials. Customer will be responsible for any and all actions taken using Customer's accounts and passwords. Should Customer decide not to renew the subscription, Customer and any of its employees will no longer have access to additional or updated SavvyX Program through the SavvyX Dashboard. For one-time purchase of the SavvyX Program, Customer will have access only to those Recipes and Templates available at the time of purchase.
2.4. SavvyX Apps. To the extent SavvyX provides SavvyX Apps for use with the Program, subject to all the terms and conditions of this Agreement, SavvyX grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to use the object code form of the SavvyX Apps internally, but only in connection with Customer's use of the Program and otherwise in accordance with the Documentation and this Agreement.
2.5. Deployment of SavvyX Program. Subject to all the terms and conditions of this Agreement, SavvyX grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to access the SavvyX Program in the form provided by SavvyX solely to support Customer's use of the Program and otherwise in accordance with the Documentation and this Agreement. Customer will implement all SavvyX Program and its Products in strict accordance with the Documentation and other instructions provided by SavvyX. Customer acknowledges that SavvyX will have no responsibility for the impact of any Customer changes to the Program and its Product(s).
2.6. Contractors and Affiliates. Customer may permit its Contractors and its Affiliates' employees and Contractors to serve as Permitted Users, provided Customer remains responsible for compliance by such individuals with all the terms and conditions of this Agreement, and any use of the Program by such individuals is for the sole benefit of Customer.
2.7. General Restrictions. Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Program to a third party; (b) use the Program and its Products to provide, or incorporate the Program and its Products into, any product or service provided to a third party other than the Customer Properties; (c) copy or modify the Program, it’s Products, or any Documentation, or create any derivative work from any of the foregoing; (d) remove or obscure any proprietary or other notices contained in the Program.
2.8. SavvyX APIs. If SavvyX makes access to any APIs available as part of the Program, SavvyX reserves the right to place limits on access to such APIs (e.g., limits on numbers of calls or requests). Further, SavvyX may monitor Customer's usage of such APIs and limit the number of calls or requests Customer may make if SavvyX believes that Customer's usage is in breach of this Agreement or may negatively affect the security, operability, or integrity of the Program (or otherwise impose liability on SavvyX).
2.9. Trial Subscriptions. If Customer receives free access or a trial or evaluation subscription to the Products (a "Trial Subscription"), then Customer may use elements of the Program in accordance with the terms and conditions of this Agreement for a period of seven (7) days or such other period granted by SavvyX (the "Trial Period"). Trial Subscriptions are permitted solely for Customer's use to determine whether to purchase a paid subscription to the Program. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term. If Customer does not enter into a paid Subscription Term, this Agreement and Customer's right to access and use the Program will terminate at the end of the Trial Period. SavvyX has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, SAVVYX WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.
2.10. Beta Offerings. Customer may choose to use Beta Offerings in its sole discretion. Beta Offerings may not be supported and may be changed at any time without notice. Beta Offerings may not be as reliable or available as the Service. Beta Offerings are not subject to the same security measures as in the Security Policy. SavvyX will have no liability arising out of or in connection with Beta Offerings. CUSTOMER USES BETA OFFERINGS AT ITS OWN RISK.
3. Customer Data and Customer Obligations
3.1. Data Processing by SavvyX. All data processing activities will be governed by the Data Processing Addendum (“DPA”) incorporated by reference herein.
3.2. Rights in Customer Data. As between the parties, Customer will retain all right, title and interest (including any and all Intellectual Property Rights) in and to the Customer Data as provided to SavvyX. Subject to the terms of this Agreement, Customer hereby grants to SavvyX a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Program to Customer.
3.3. Storage of Customer Data. SavvyX does not provide an archiving service. SavvyX agrees only that it will not intentionally delete any Customer Data from any Program element prior to termination of Customer's applicable Subscription or One-Time Purchase Term and expressly disclaims all other obligations with respect to storage.
3.4. Customer Obligations. a) In General. Customer is solely responsible for the accuracy, content, and legality of all Customer Data. Customer represents and warrants to SavvyX that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Data as contemplated in this Agreement (including granting SavvyX the rights in Section 3.1 (Rights in Customer Data)) and that no Customer Data will violate or infringe (i) any third-party Intellectual Property Rights or, publicity, privacy, or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreements governing the Customer Properties or Customer's accounts with any Third-Party Platforms.
b) No Sensitive Personal Information. Except as otherwise expressly agreed between the Parties in writing by entering into a business associate agreement, Customer specifically agrees not to use the Program to collect, store, process or transmit any Sensitive Personal Information. Customer acknowledges that SavvyX is not a payment card processor and that the Program and its Products are not PCI DSS compliant. Except for SavvyX’s obligations as a business associate pursuant to this Agreement, Customer shall be responsible for any Sensitive Personal Information it submits to the Program, and SavvyX will treat such submissions as Customer Data as defined in this Agreement such that SavvyX is not subject to any additional obligations that apply to Sensitive Personal Information.
c) Compliance with Laws. Customer agrees to comply with all applicable Laws in its use of the Program. Without limiting the generality of the foregoing, Customer will not engage in any unsolicited advertising, marketing, or other activities using the Program, including without limitation any activities that violate the Telephone Consumer Protection Act of 1991, CAN-SPAM Act of 2003 or any other anti-spam laws and regulations.
3.5. Indemnification by Customer. Customer will indemnify, defend and hold harmless SavvyX from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with any claim arising from or relating to any Customer Data, Customer’s use of a third-party app, or breach or alleged breach by Customer of Section 3.4 (Customer Obligations). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of SavvyX at Customer's expense. Notwithstanding the foregoing sentence, (a) SavvyX may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) Customer will not settle any claim without SavvyX's prior written consent, unless the settlement fully and unconditionally releases SavvyX and does not require SavvyX to pay any amount, take any action, or admit any liability.
3.6. Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees that SavvyX may obtain and aggregate technical and other data about Customer's use of the Program that is non-personally identifiable with respect to Customer ("Aggregated Anonymous Data"), and SavvyX may use the Aggregated Anonymous Data to analyze, improve, support, and operate the Program and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations, or similar reports for distribution to and consumption by Customer and other SavvyX customers. For clarity, this Section 3.5 does not give SavvyX the right to identify Customer as the source of any Aggregated Anonymous Data.
SavvyX agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of any Product or Customer Data. However, SavvyX will have no responsibility for errors in transmission, unauthorized third-party access, or other causes beyond SavvyX's control.
5. Third-Party Platforms and Apps
5.1 Integration with Third-Party Platforms. The Program may recommend integrations with certain third-party platforms. Customer is solely responsible for complying with any relevant terms and conditions of the third-party platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. Customer acknowledges and agrees that SavvyX has no responsibility or liability for any Third-Party Platform or App, or how a Third-Party Platform uses or processes Customer Data after such is exported to a Third-Party Platform or App. SavvyX may disable integrations of the Program with any third-party platform at any time with or without notice to Customer. For clarity, this Agreement governs Customer's use of and access to the Program, even if accessed through an integration with a third-party platform.
5.2 Third Party Apps. Customer represents and warrants that Customer has agreed to the terms of service associated with any third-party App(s) and has created a third-party App account in accordance with such terms and conditions, which govern Customer's use of such third-party App account. SavvyX will have no liability for and the third-party App provider is solely responsible for the third-party App’s network, functionality, clients, and APIs.
6.1. SavvyX Program (Methodology, Recipes, and Templates). This is a subscription or one-time purchase agreement for access to and use of the Program. Customer acknowledges that it is obtaining only a limited right to the Program and that irrespective of any use of the words "purchase", "sale," or like terms in this Agreement, no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that SavvyX or its suppliers retain all right, title, and interest (including all Intellectual Property Rights) in and to the Program and all Documentation, and any and all related derivative works, modifications, or improvements of any of the foregoing, including as may incorporate Feedback (collectively, "SavvyX Program"). Except as expressly set forth in this Agreement, no rights in any SavvyX Program are granted to Customer. Further, Customer acknowledges that the Program is offered as an online, hosted solution, and that Customer has no right to obtain a copy of any part of the Program, except in the format provided by SavvyX.
6.2. Feedback. Customer, from time to time, may submit Feedback to SavvyX. SavvyX may freely use or exploit Feedback in connection with the Program and its Product(s). To the extent Customer submits Feedback related to third-party Apps, Customer hereby grants to SavvyX, if for any reason it is further needed, a perpetual, non-revocable, royalty-free worldwide license to use and/or incorporate such feedback into any SavvyX product or service at any time at the sole discretion of SavvyX.
7. Subscription Term, Fees, and Payment
7.1. Subscription Term and Renewals. Unless otherwise specified on the applicable Order Form, each Subscription Term will automatically renew for additional twelve-month periods unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term.
7.2 One-Time Purchase (Fee). Unless otherwise specified on the applicable Order Form, a One-Time Purchase gives Customer access to the SavvyX Program limited to the available Recipes and Templates at the time of their purchase.
7.3. Fees and Payment. All fees are as set forth in the applicable Order Form and will be paid by Customer immediately via Credit Card (as defined below) or (b) otherwise specified in the applicable Order Form. Except as expressly set forth in Section 9 (Limited Warranty) and Section 12 (Indemnification), all fees are non-refundable. Customer is responsible for paying all Taxes, and all Taxes are excluded from any fees set forth in the applicable Order Form. If Customer is required by Law to withhold any Taxes from Customer's payment, the fees payable by Customer will be increased as necessary so that after making any required withholdings, SavvyX receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
7.4. Payment Via Credit Card. If Customer is purchasing the Program via credit card, debit card, or other payment card ("Credit Card"), the following terms apply:
- Recurring Billing Authorization. By providing Credit Card information and agreeing to purchase any Program, Customer hereby authorizes SavvyX (or its designee) to automatically charge Customer's Credit Card on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) during the Subscription Term for all fees accrued as of that date (if any) in accordance with the applicable Order Form.
- Foreign Transaction Fees. Customer acknowledges that for certain Credit Cards, the issuer of Customer's Credit Card may charge a foreign transaction fee or other charges.
- Invalid Payment. If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to SavvyX and SavvyX may, in its sole discretion, either (i) invoice Customer directly for the deficient amount, (ii) continue billing the Credit Card once it has been updated by Customer (if applicable) or (iii) terminate this Agreement.
- Changing Credit Card Information. At any time, Customer may change its Credit Card information by entering updated Credit Card information via the "Settings" page on the Dashboard.
- Termination of Recurring Billing. In addition to any termination rights set forth in this Agreement, Customer may terminate the Subscription Term by sending SavvyX notice of non-renewal to in accordance with Section 7.1 (Subscription Term and Renewals) or, if Customer's Subscription Term is on a monthly basis (or if otherwise permitted by SavvyX), by terminating via the "Settings" page on the Dashboard, with termination effective at the end of the current Subscription Term. As set forth in Section 2.9 (Trial Subscriptions), if Customer does not enter into a paid Subscription Term following a Trial Period, this Agreement and Customer's right to access and use the Program will terminate at the end of the Trial Period and Customer's Credit Card will not be charged.
- Payment of Outstanding Fees. Upon any termination or expiration of the Subscription Term, SavvyX will charge Customer's Credit Card (or invoice Customer directly) for any outstanding fees for Customer's use of the Program during the Subscription Term, after which SavvyX will not charge Customer's Credit Card for any additional fees. One-Time Purchase Customers will not be charged for any additional fees beyond the original purchase.
7.5. Suspension of Program. If Customer's subscription-based account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), SavvyX reserves the right to suspend Customer's access to the applicable Program (and any related products or services) without liability to Customer until such amounts are paid in full.
7.6 Refunds. There are NO refunds on any Program purchase. Customer is advised to consider their investment carefully as refunds are not provided by SavvyX on any Program purchase.
8. Term and Termination
8.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
8.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within fourteen (14) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within thirty (30) days thereafter).
8.3. Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all Program elements (including any and all related SavvyX Methodology, Recipes, and Templates) and delete (or, at SavvyX's request, return) any and all copies of the Program and Documentation, any SavvyX passwords or access codes, and any other SavvyX Confidential Information in its possession. Customer acknowledges that following termination, it will have no further access to any Customer Data input into any part of the Program hosted online through SavvyX, and that SavvyX may delete any such data as may have been stored by SavvyX at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
8.4. Survival. The following Sections will survive any expiration or termination of this Agreement: 2.7 (General Restrictions), 2.9 (Trial Subscriptions), 3.2 (Storage of Customer Data), 3.5 (Indemnification by Customer), 3.6 (Aggregated Anonymous Data), 6 (Ownership), 7.3 (Fees and Payment), 7.4 (Payment Via Credit Card), 8 (Term and Termination), 9.2 (Warranty Disclaimer), 11 (Limitation of Remedies and Damages), 12 (Indemnification), 13 (Confidential Information) and 15 (General Terms).
9. Limited Warranty
9.1. Limited Warranty. SavvyX warrants, for Customer's benefit only, that each Program will operate in substantial conformity with the applicable Documentation. SavvyX's sole liability (and Customer's sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for SavvyX to use commercially reasonable efforts to correct the reported non-conformity, or if SavvyX determines such remedy to be impracticable, either party may terminate the applicable Subscription Term. The limited warranty set forth in this Section 9.1 will not apply: (i) unless Customer makes a claim within fourteen(14) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software, or services, or (iii) to use provided on a no-charge, trial or evaluation basis.
9.2. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 9.1, THE PROGRAM IS PROVIDED "AS IS". NEITHER SAVVYX NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SAVVYX DOES NOT WARRANT THAT CUSTOMER’S USE OF THE PROGRAM WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES SAVVYX WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS OR CORRUPTION. SAVVYX SHALL NOT BE LIABLE FOR THE RESULTS OF ANY COMMUNICATIONS SENT OR ANY COMMUNICATIONS THAT WERE FAILED TO BE SENT USING THE PROGRAM. SAVVYX SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS, THIRD PARTY APPS, OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF SAVVYX. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
During the Subscription Term of each Products, SavvyX will provide end user support in accordance with SavvyX's Support Policy ("Support Policy").
11. Limitation of Remedies and Damages
11.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
11.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), EACH PARTY’S ENTIRE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO SAVVYX DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.
11.3. Excluded Claims. "Excluded Claims" means any claim arising (a) from Customer's breach of Section 2.7 (General Restrictions); (b) under Section 3.3 (Customer Obligations) or 3.4 (Indemnification by Customer); or (c) from a party's breach of its obligations in Section 13 (Confidential Information) (but excluding claims arising from operation or non-operation of any Product or relating to Customer Data).
11.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 13 apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
Under no circumstances, including but not limited to negligence, will SavvyX personnel be liable for any special or consequential damages that result from the use of, or the inability to use, the materials or information on the Site, or any part of the Program provided on the Site, even if advised of the possibility of such damages, including loss of revenue or income, pain and suffering, emotional distress or similar damages.
Applicable law may not allow the limitation or exclusion of liability or incidental or consequential damages (including but not limited to lost data), so the above limitation or exclusion may not apply to Customer. In no event shall the total liability to Customer by SavvyX for all damages, losses, and causes of action (whether in contract, tort, or otherwise) exceed the amount paid by Customer to SavvyX, if any, for accessing the Site.
13. Confidential Information
Each party (as "Receiving Party") agrees that all innovations, inventions, know-how, business, technical, and financial information it obtains from the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any SavvyX Methodology, performance information relating to any Product, and the terms and conditions of this Agreement will be deemed Confidential Information of SavvyX without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 13 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 15. The Receiving Party's confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
SavvyX may, upon Customer’s prior written consent, use Customer’s name to identify Customer as a SavvyX customer of the Program, including on SavvyX’s public website. SavvyX agrees that any such use shall be subject to SavvyX complying with any written guidelines that Customer may deliver to SavvyX regarding the use of its name.
15. General Terms
15.1. Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party's assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 15.1 will be null and void.
15.2. Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
15.3. Governing Law; Dispute Resolution.
a) Direct Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, whether arising in contract, tort or otherwise, ("Dispute"), the parties shall first use their best efforts to resolve the Dispute. If a Dispute arises, the complaining party shall provide written notice to the other party in a document specifically entitled "Initial Notice of Dispute," specifically setting forth the precise nature of the dispute ("Initial Notice of Dispute"). If an Initial Notice of Dispute is being sent to SavvyX it must be emailed to firstname.lastname@example.org and sent via mail to:
Attn: Legal Department, SavvyX, 6336 N. Oracle Road, #326-183, Tucson, AZ, 85704.
Following receipt of the Initial Notice of Dispute, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interest, attempt to reach a just and equitable solution of the Dispute that is satisfactory to both parties ("Direct Dispute Resolution"). If the parties are unable to reach a resolution of the Dispute through Direct Dispute Resolution within thirty (30) days of the receipt of the Initial Notice of Dispute, then the Dispute may subsequently be resolved in a court of law as set forth below.
b) Choice of Law and Jurisdiction. FOR ANY CLAIM WHICH IS NOT SUBJECT TO THIS DISPUTE RESOLUTION PROVISION, CUSTOMER AGREES TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN PIMA COUNTY, ARIZONA. IN ANY DISPUTE, ARIZONA LAW SHALL APPLY.
c) Construction and Joinder. THIS AGREEMENT MUST BE CONSTRUED AS IF IT WAS JOINTLY WRITTEN BY BOTH PARTIES. BOTH CUSTOMER AND SAVVYX AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS. NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE PRODUCTS, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. IN THE EVENT OF ANY DISPUTE CONCERNING THE VALIDITY OR ENFORCEABILITY OF THIS PROVISION, SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.
d) Injunctive Relief. Notwithstanding the above provisions, SavvyX may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
15.4. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
15.5. Amendments; Waivers. Except as provided under “Modifications to this Agreement” and otherwise provided herein, no supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
15.6. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Program and its Products are on-line, subscription-based or one-time purchase products, and that to provide improved customer eXperience SavvyX may make changes to the Program, and SavvyX will update the applicable Documentation accordingly. The support and service level availability terms described in the Support Policy may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease SavvyX's obligations as compared to those reflected in such terms as of the Effective Date).
15.7. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power, or telecommunications or data networks or services, or refusal of a license by a government agency.
15.8. Subcontractors. SavvyX may use the services of subcontractors and permit them to exercise the rights granted to SavvyX in order to provide the Program and its Products under this Agreement, provided that SavvyX remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement,(ii) for the overall performance of the Program as required under this Agreement, and (iii) compliance with the terms of the DPA.
15.9. Subpoenas. Nothing in this Agreement prevents SavvyX from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but SavvyX will use commercially reasonable efforts to notify Customer where permitted to do so.
15.10. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent.
15.11. Export Control and Economic Sanctions. In its use of the Program and its Products, Customer agrees to comply with all export control and economic sanctions and any relevant import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government export control embargo or economic sanctions, (ii) Customer will not (and will not permit any of its users to) access or use the Products in violation of any U.S. export control or economic sanction, prohibition or restriction, and (iii) Customer will not submit to the Products any information that is controlled under the U.S. International Traffic in Arms Regulations or that is controlled under any Export Control Classification Number (other than EAR99) on the Commerce Control List of the Export Administration Regulations.
15.12. Government End-Users. Elements of the Program and its Products use commercial computer software. If the user or licensee of the Program is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Products, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. All parts of the Program were developed fully at private expense. All other use is prohibited.
15.13. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.