IMPORTANT, READ CAREFULLY: YOUR USE OF AND ACCESS TO THE PLANZERO PLATFORM (AND ANY ASSOCIATED SOFTWARE AND WEBSITES) (COLLECTIVELY, THE “SERVICES”) OF PLANZERO.IO INC. AND ITS AFFILIATES (“PLANZERO”) IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS AND CONDITIONS. PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.
BY PURCHASING, USING, OR OTHERWISE ACCESSING ANY OF THE SERVICES YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS AND ALL ORDER FORMS AND POLICIES INCORPORATED HEREIN BY REFERENCE (THE “AGREEMENT”). THE SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS.
You must be at least 18 years old to use the Services. By agreeing to this Agreement, you represent and warrant to PlanZero that: (i) you are at least 18 years old; (ii) you have not previously been suspended or removed from the Services; and (iii) your use of the Services is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting this Agreement on your behalf represents and warrants that they have authority to bind you to this Agreement and you agree to be bound by this Agreement.
PlanZero will provide the Services, and you may access and use the Services, in accordance with this Agreement. If you order the Services through an online registration page or an order form (each an “Order Form”), the Order Form may contain additional terms and conditions and information regarding the Services you are ordering.
1. THE SERVICES
1.1 The PlanZero platform is a proprietary cloud-based climate management platform designed to allow customers to create, manage, track, and collaborate on climate initiatives.
1.2 Subject to your compliance with the terms and conditions of this Agreement, PlanZero hereby grants to you a non-exclusive, non-sublicensable, revocable and non-transferable right to access and use the Services during the Term of this Agreement solely for use by Permitted Users. Such use is limited to your internal business purposes. For purposes of this Agreement, “Permitted Users” means your employees, consultants, contractors, and/or agents who are authorized by you to access and use the Services under the rights granted to you pursuant to this Agreement.
1.3 To access certain features of the Services, you may be required to register for an account, which, among other things, will allow you to add or remove Permitted Users, control and manage certain features of the Services, and perform other administrative functions with respect to your account. When you register for an account, you will be asked to provide PlanZero with certain information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to PlanZero is accurate, complete, and not misleading and that you will keep it accurate and up-to-date at all times. If you choose, or are provided with, a user name, password, or any other piece of information as part of PlanZero’s security procedures, you must treat such information as confidential, and you must not disclose it to any third party. You also acknowledge and agree not to provide any third party with access to the Services or portions thereof using your username, password, or other security information. Notwithstanding the foregoing, you may authorize as Permitted Users certain third parties that have integrations with PlanZero to access your Customer Data (and/or to upload additional data on your behalf, which data will be treated as Customer Data hereunder). You acknowledge and agree that (i) any such authorization by you will be deemed to grant PlanZero permission to provide such third parties with access to your Customer Data within the scope of your authorization, (ii) you will at all times remain liable for the acts and omissions of such third parties on your behalf, and (iii) any Customer Data submitted, provided, uploaded, or transferred to PlanZero by such third parties on your behalf may be used by PlanZero as contemplated herein. If you believe that your account is no longer secure, then you must immediately notify PlanZero at [email protected]. By creating an account, you also consent to receive certain electronic communications from PlanZero. These communications may include notices about your account and are part of your relationship with PlanZero. You agree that any notices, agreements, disclosures or other communications that PlanZero sends to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from PlanZero by printing a paper copy or saving an electronic copy.
1.4 You may, at your option, provide access and use rights to the Services to one or more of your Affiliates. If you provide such access and use rights, you will be wholly responsible for the acts and omissions of your Affiliate. Your Affiliate shall not have the right to take any legal action against PlanZero under this Agreement or any Order Form hereunder if it has not entered into a direct Order Form with PlanZero as described under the following paragraph.
If the Affiliate and PlanZero execute an Order Form which references your existing Agreement, the Affiliate may purchase the Services, hosted on a separate instance, and that Order Form will establish a new and separate agreement between the Affiliate and the PlanZero. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.5 PlanZero uses commercially reasonable efforts to maintain the highest service availability. However, PlanZero cannot guarantee that the Services will operate in an uninterrupted or error-free manner. PlanZero performs service maintenance and uses commercially reasonable efforts to schedule system downtime during off-peak hours and to avoid service interruptions and delays. PlanZero will use commercially reasonable efforts to notify you in advance of any scheduled downtime.
1.6 PlanZero may, directly or indirectly, suspend, terminate, or otherwise deny your, any Permitted User’s, or any other person’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) PlanZero receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires PlanZero to do so; or (b) PlanZero believes, in its good faith and reasonable discretion, that: (i) you or any Permitted User has failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) you or any Permitted User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section 1.6 does not limit any of PlanZero’s other rights or remedies, whether at law, in equity, or under this Agreement.
2. EVALUATION PERIOD
2.1 If you register for a free evaluation of the Services, PlanZero will make the Services or any part of it available to you and your Permitted Users on an evaluation basis free of charge (“Evaluation Services”) until the earlier of (i) the end of the applicable evaluation period, (ii) the start date of any subscription to the Services that you purchase pursuant to an Order Form, or (iii) any termination of the evaluation by PlanZero for any reason, or for no reason at all, by sending you a termination notice with immediate effect.
2.2 THE EVALUATION SERVICES ARE PROVIDED “AS IS” FOR LIMITED EVALUATION AND TESTING PURPOSES ONLY, AND PlanZero DOES NOT WARRANT THAT THE EVALUATION SERVICES WILL OPERATE WITHOUT ERROR OR INTERRUPTION. PlanZero SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, QUALITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE.
3. DATA SECURITY AND PRIVACY
3.2 While using the Services, you or your Permitted Users may transfer to PlanZero certain Customer Data containing personal information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located (“Personal Information”). The terms of the PlanZero Data Processing Addendum (“DPA”) are incorporated herein by reference and apply to the processing of Personal Information.
4. YOUR UNDERTAKINGS
4.1. You assume full responsibility for your and your Permitted Users’ access to and use of the Services in accordance with this Agreement and with applicable local, state, federal, national and international laws, regulations and treaties, and warrant that you have obtained all rights in the Customer Data to authorize PlanZero to use, copy, process, store, transmit, distribute, perform, transform, and display the Customer Data to provide you the Services and to perform all other acts authorized by you in connection with the Customer Data.
4.2. You will not, and ensure that your Permitted Users will not, use the Services or Customer Data for any use or purpose that: (i) is obscene, libelous, blasphemous, defamatory, inciting hatred, terrorism or any similar offense; (ii) infringes or misappropriates the intellectual property rights, or violates the privacy rights of, any third party (including without limitation, copyright, trademark, patent, trade secret, or other intellectual property right, moral right, or right of publicity); (iii) is in violation, or may encourage any manner of acting that would violate, any applicable local, state, national and foreign laws, treatises or regulations; or (iv) permits any third party to do any of the above.
4.3. You will not, and will ensure that your Permitted Users will not: (i) use the Services for non-business calls or abuse the Services; (ii) resell, transfer, or grant others permission to use the Services or pledge, lease, rent, or share your rights under this Agreement (including without limitation to any of your affiliates); (iii) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services; (iv) modify, translate, adapt, update, reproduce, create derivative works of, duplicate, or copy all or any part of the Services; (v) except as expressly set forth herein, make any of the Services or Customer Data available to anyone other than your employees and consultants acting on your behalf or use any Services or Customer Data for the benefit of anyone other than you; (vi) use the Services in any way that damages, destroys, disrupts, disables, impairs, restricts, inhibits, or otherwise impedes or harms in any manner the Services, the information technology infrastructure used by or on behalf of PlanZero in performing the Services, or PlanZero’s provision of services to any third party; (vii) access or attempt to access any of PlanZero’s systems, programs or data that are not made available for public use, or attempt to bypass any registration processes through the Services or any of the Services’ security and traffic management devices; (viii) attempt to decompile, disassemble, re-engineer or reverse engineer the Services or otherwise create or attempt to create or permit, allow, or assist others to extract source code of the Services; (ix) access or use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other right of PlanZero or any third party or that violates any applicable law, PlanZero policies, or the operational or security mechanisms of the Services; (x) input, upload, transmit, or otherwise provide to or through the Services, any virus, worm, malware, or other malicious computer code; or (xi) permit any third party to do any of the above.
4.4. The Services may include or incorporate third-party products, materials, information, or intellectual property (“Third-Party Components”). Third-Party Components are owned by third parties and not by PlanZero and may be provided to you under terms and conditions that are in addition to and/or different from those contained herein. PlanZero will not be liable for any termination, breach of terms, or suspension of Services resulting from your or your Permitted Users’ use of any Third-Party Components. Although the Services are provided to you subject to this Agreement, nothing in this Agreement prevents, restricts, or is intended to prevent or restrict, you from obtaining Third-Party Components under the applicable third-party licenses or limiting your use of Third-Party Components under those third-party licenses.
4.5. You may not access or use the Services if you are a direct competitor of PlanZero, or for monitoring the Services’ availability, performance, functionality, or for any other benchmarking or competitive purposes.
5. SUBSCRIPTION FEES
5.1. In consideration for the right to use the Services under the terms herein, you will pay subscription fees in the amount and subject to the payment terms set forth in your Order Form. Unless otherwise agreed in writing by the parties, the price on the Order Form will apply to any additional subscriptions you purchase during the subscription term. You agree that in the event PlanZero is unable to collect the subscription fees owed to PlanZero for the Services, PlanZero may take any other steps it deems necessary to collect such fees from you and that you will be responsible for all costs and expenses incurred by PlanZero in connection with such collection activity, including collection fees, court costs, and attorneys’ fees. You further agree that, if you fail to make any payment when due, then, in addition to all other remedies that may be available: (i) PlanZero may collect interest at the lesser of 1.0% per month or the highest amount permitted by law on any amounts not paid when due; and (ii) if such failure continues for 7 days following written notice thereof, PlanZero may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to you by reason of such suspension. Except to the extent otherwise expressly stated in this Agreement or in an Order Form, all obligations to pay subscription fees are non-cancelable and all payments are non-refundable. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by PlanZero regarding future functionality or features.
5.2. Your subscription fees are exclusive of taxes, levies, duties or similar governmental assessments of any kind (excluding taxes based on PlanZero’s income, property and employees). You will be responsible for paying any and all such taxes.
5.3. PlanZero reserves the right to modify the subscription fees for the Services, effective upon commencement of the next renewal subscription term of the relevant Order Form(s), by notifying you of such change in writing at least 30 days before the end of the then-current subscription term and the relevant Order Form(s) will be deemed amended accordingly. You will receive standard updates to the Services that are made generally available by PlanZero during the subscription term specified in the Order Form. However, PlanZero reserves the right to offer additional functionality or premium feature improvements for an additional cost. All rights not expressly granted herein are reserved by PlanZero and its licensors.
6. PROPRIETARY RIGHTS; YOUR FEEDBACK
6.1 For purposes of these Terms and Conditions, “Customer Data” means electronic data and information (including data sets, compilations, or aggregations of the foregoing) submitted by you or on your behalf to the Services or collected and processed by you or on your behalf using the Services. As between you and PlanZero, you shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to PlanZero. You hereby grant to PlanZero a non-exclusive, worldwide, limited term, royalty-free right to access, use, copy, process, store, transmit, distribute, perform, transform, and display the Customer Data and derivatives thereof in connection with providing the Services, as well as to improve the Services, to develop new products and services, to perform all other acts authorized by you in connection with the Customer Data, and to comply with applicable laws.
6.2 In addition, PlanZero may process aggregated and anonymous general platform usage data and extracts of Customer Data on an anonymized basis for PlanZero’s legitimate business purposes, including for machine learning and testing, development, controls, and operation of the Services (“Usage Data”). For clarity, nothing in this Section 6.2 gives PlanZero the right to publicly identify you or any individual user as the source of such Usage Data. You hereby unconditionally and irrevocably assign to PlanZero all of your right, title, and interest in and to the Usage Data, including all intellectual property rights relating thereto.
6.3. The Services are protected by copyrights, trademarks, service marks, patents or other proprietary rights, as a collective work or compilation, pursuant to laws and international conventions. Except for your Customer Data, all right, title, and interest in and to the Services and derivatives thereof, in each case, including all intellectual property rights therein, are retained by PlanZero. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any intellectual property rights in or relating to, the Services or Third-Party Components, whether expressly, by implication, estoppel, or otherwise.
6.4 You and your Permitted Users, from time to time, may submit comments, information, questions, data, ideas, descriptions of processes, or other information relating to the Services to PlanZero (“Feedback”). PlanZero may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise, provided Customer shall not be identified in connection with any such Feedback without Customer’s consent in its sole discretion.
7. LINKS TO THIRD-PARTY WEBSITES AND APPLICATIONS
8. WARRANTIES; DISCLAIMER
8.1. Each of you and PlanZero represent, warrant, and covenant to the other that: (a) it has the full corporate right, power and authority to enter into, and perform its obligations under, this Agreement; (b) the execution of this Agreement, and the performance of its obligations herein, does not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes its legal, valid and binding obligation.
8.2. EXCEPT AS EXPRESSLY PROVIDED ABOVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PlanZero EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE ABOVE, PlanZero MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO (I) THE SERVICES MEETING YOUR REQUIREMENTS, OR BEING UNINTERRUPTED, CONTINUOUS, TIMELY, OR ERROR OR VIRUS FREE; (II) WHETHER YOUR USE OF THE SERVICES OR CUSTOMER DATA WILL GENERATE ANY RESULTS OR CONSEQUENCES; OR (III) WHETHER YOUR USE OF THE SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION.
9. PRIVACY AND OTHER POLICIES
10.1. “Confidential Information” means all information provided by a party to other party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, and excluding any information that (i) was rightfully in the possession of, or was known by, the receiving party prior to its receipt from the disclosing party, without an obligation to maintain its confidentiality, (ii) was or has become publicly available without violation of this Agreement, (iii) is obtained by the receiving party from a third party, without an obligation to keep such information confidential, or (iv) is independently developed by the receiving party without use of the disclosing party’s Confidential Information.
11. TERM AND TERMINATION
11.1. This Agreement is effective beginning when you (a) accept this Agreement, (b) register for an account, or (c) access or otherwise use the Services, in each such case whichever occurs first, and ending when terminated as described in this Section 11.
11.2 The initial subscription term for the Services will be as set forth and agreed upon by the parties in an applicable Order Form.
11.3. Either you or PlanZero may terminate the Agreement if the other party (i) materially breaches the Agreement and has not cured such breach within 30 days after receiving notice (if curable), without prejudice and in addition to any right or remedy that the non-defaulting party may have under the Agreement or applicable law, or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors which is not dismissed within 30 days of the filing thereof.
11.4. At the end of the initial subscription term, except as otherwise specified in an Order Form, all PlanZero subscriptions purchased by you pursuant to an Order Form (including any additional subscriptions added to your account) will renew automatically for additional 12-month periods unless you or PlanZero notifies the other in writing, at least 30 days prior to the end of the then-current subscription term, that it chooses not to renew (the initial subscription term, along with any renewal subscription terms, are referred to as the “subscription term”).
11.5. Upon termination or expiration of the Agreement; (a) you will immediately cease use of the Services and all rights granted to you under the Agreement will terminate; (b) we will make the Customer Data, including your recorded calls, available to you for download or export for a period of 30 days following such termination and then will delete same, and (c) Sections 4.1, 6.4, 8, 10, 11.4, 12 – 14, 17, and 18 survive termination of the Agreement.
11.6. In the event of a termination due to an uncured breach by PlanZero pursuant to Section 11.3, PlanZero will refund you any prepaid subscription fees for Services that have not been provided under the applicable Order Form on a pro-rated basis.
12. LIMITATION OF LIABILITY
12.1 Limitation of Liability. EXCEPT FOR LIABILITIES ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14 (INDEMNIFICATION), EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THE AGREEMENT OR THE SERVICES WILL NOT EXCEED THE FEES ACTUALLY RECEIVED BY PLANZERO FROM YOU FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “SUBSCRIPTION FEES” SECTION ABOVE.
12.2 Exclusion of Consequential and Related Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL A PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, IN EACH CASE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. THE ABOVE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND ARE FUNDAMENTAL ELEMENTS OF THE BARGAIN BETWEEN THE PARTIES.
13. LIMITATION OF CLAIMS
Any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within twelve (12) months after such claim or cause of action arose, or be forever barred.
14.1. PlanZero shall (a) defend you from and against any claim by a third party alleging that the technology underlying the Services, when used as authorized under this Agreement, infringes or misappropriates such third party’s trademark, United States patent, copyright, or trade secret, and (b) in relation to such claim, indemnify and hold you harmless from any damages and costs finally awarded or agreed to in settlement by PlanZero (including reasonable attorneys’ fees). The foregoing limitation does not apply to the extent that the alleged infringement or misappropriation arises from: (i) Third-Party Components; (ii) Customer Data; (iii) access to or use of the Services in combination with any hardware, system, software, network, or other materials or service not provided by PlanZero; (iv) modification of the Services other than by or on behalf of PlanZero; (v) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to you by or on behalf of PlanZero; (vi) allegation of facts that, if true, would constitute your breach of any of your representations, warranties, covenants, or obligations under this Agreement; (vii) the gross negligence or willful misconduct of you, any of your Permitted Users or any third party acting on your behalf. If any of the Services are, or in PlanZero’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party intellectual property right, or if your or any Permitted User’s use of the Services is enjoined or threatened to be enjoined, PlanZero may, at PlanZero’s sole discretion and expense: (a) procure the right for you to continue to use the Services; (b) replace or modify the Services, in whole or in part, to make the Services non-infringing; or (c) terminate the Agreement and refund you any prepaid subscription fees for Services that have not been provided under the applicable Order Form on a pro-rated basis.
14.2 You shall (a) defend PlanZero from and against any claim by a third party arising from (i) your or your Permitted Users’ use of the Services or Third-Party Components in an unlawful manner or in violation of this Agreement, the Documentation, or Order Form, or (ii) any Customer Data or Customer’s use of Customer Data with the Services, and (b) in relation to such claim, indemnify and hold harmless PlanZero from any damages and costs finally awarded or agreed to in settlement by you (including reasonable attorneys’ fees).
14.3. As a condition to such indemnification each of you and PlanZero must provide the other with written notice of such claim. Neither PlanZero nor you will enter into any settlement or compromise of any such claim without the indemnifying party’s prior written consent. The indemnifying party will assume the exclusive defense and control of any matter subject to indemnification. In all events, each of PlanZero and you will cooperate with the other in the defense of any claim, at the indemnifying party’s expense.
15. FEDERAL GOVERNMENT END USE PROVISIONS
PlanZero provides the Services for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in the Agreement. If a government agency has a need for rights not conveyed under these terms, it must negotiate with PlanZero to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
16. LIMITED TRIALS & BETA SERVICES
For purposes of this Agreement, “Beta Services” means certain services, features, or functionality that PlanZero may make available to you at no additional charge for evaluation or testing purposes only (and not for production use) which are clearly designated as pre-release, beta, limited release, developer preview, non-production, or by a similar description of similar import. From time to time, PlanZero may make Beta Services available to you at a nominal fee or no charge in its sole discretion. PlanZero reserves the right, upon prior written notice to you, to start charging or to revise the fee for such Beta Services at any time at its sole discretion. You may choose to try such Beta Services at your sole discretion. Beta Services are not supported by PlanZero and may be subject to supplemental terms and conditions. Beta Services are not considered “Services” under the Agreement; however, all restrictions set forth herein, PlanZero’s reservation of rights and your obligations concerning the Services, and your use of any non-PlanZero services or products shall apply equally to your use of Beta Services. Unless otherwise stated or communicated to you by PlanZero in writing, your access to any Beta Services will expire upon the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. PlanZero may discontinue any Beta Services at any time in PlanZero’s sole discretion and may never make them generally available. PlanZero will have no liability for any harm or damage arising out of or in connection with Beta Services.
17. INJUNCTIVE RELIEF
You acknowledge that any use of the Services contrary to the Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Services, may cause irreparable injury to PlanZero, its affiliates, suppliers and any other party authorized by PlanZero to resell, distribute, or promote the Services (“Resellers”), and, under such circumstances PlanZero, its affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
18.2 Relationship of the Parties. The parties to this Agreement are independent contractors. Nothing in the Agreement will be construed as creating a partnership, agency, fiduciary or employment relationship or a joint venture between you and PlanZero.
18.3. Severability. If any provision of the Agreement is held to be contrary to law, such provision will be construed, as nearly as possible, to reflect the original provision and the other provisions remain in full force and effect.
18.4 Marketing. You grant PlanZero the right to use your company name and logo as a reference for marketing or promotional purposes on PlanZero’s website and in other public or private communications or disclosures with our existing or potential customers and investors, subject to your standard trademark usage guidelines as provided to PlanZero from time-to-time. PlanZero doesn’t want to list customers who don’t want to be listed, so you may send PlanZero an email to [email protected] stating that you do not wish to be used as a reference.
18.5. Modifications and Waivers. All modifications to or waivers of any term of this Agreement must be in a writing signed by you and PlanZero and expressly reference this Agreement. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term, and any failure to assert any right under the Agreement will not constitute a waiver.
18.6 Insurance. PlanZero will maintain commercially appropriate insurance coverage given the nature of the Services and PlanZero’s obligations under the Agreement. Such insurance will be in an industry standard form with licensed insurance carriers with A.M. ratings of A- IX or better, and will include commercially appropriate cyber liability insurance coverage. Upon request, PlanZero will provide you with certificates of insurance evidencing such coverage.
18.7 Anti-Corruption. Each of PlanZero and you acknowledges it has not received or been offered any illegal or otherwise improper bribe, kickback, payment, gift or other thing of value by any employee, representative or agent of the other party in connection with the Agreement. Each party will use reasonable efforts to promptly notify the other party if it becomes aware of any circumstances that are contrary to this acknowledgment.
18.8. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, PlanZero will refund you any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
18.9 Force Majeure. Except for payment of subscription fees and each party’s confidentiality obligations, neither party will be deemed to be in breach of the Agreement for any failure caused by reasons beyond a party’s reasonable control (including without limitation acts of God, war or civil disturbance), and it will notify the other party as soon as practicable in writing of such failure.
18.10 Governing Law and Venue. The Agreement will be governed by laws of the State of California, USA without regard to its choice of law or conflicts of law principles. You and PlanZero consent to the exclusive jurisdiction and venue of the state and federal courts located in San Francisco County, California, USA, except that temporary relief to enjoin infringement of intellectual property rights may be sought in any court of competent jurisdiction. EACH PARTY WAIVES ANY OBJECTION (ON THE GROUNDS OF LACK OF JURISDICTION, FORUM NON CONVENIENS OR OTHERWISE) TO THE EXERCISE OF SUCH JURISDICTION OVER IT BY ANY SUCH COURTS.