Terms of Service
1. Services
(a) This Terms of Service (“Agreement”) will apply to the entity designated as the Customer in the signature block at the end of this Agreement, or any of its contracted subsidiary(ies) and Affiliates (collectively, “Customer”), use of Terminus Software, Inc.’s (“Terminus”) online software services (the “Online Services”), support services, Implementation Services (as defined below and as applicable) and the Supplementary Data (as defined below and as applicable) (the foregoing, collectively, the “Services”). Customer and Terminus are each a “Party” and collectively, the “Parties.”
(b) By accepting this Agreement, either through executing an Order Form that references this Agreement, or by signing this Agreement directly, Customer agrees that its use of the Services is subject to and governed by this Agreement.
(c) “Affiliate” shall mean any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
(d) If the signatory to this Agreement is entering into this Agreement on behalf of a company or other legal entity, such signatory represents that he/she/it has the authority to bind such entity to this Agreement. Neither signatory nor Customer may use the Services if signatory does not have such authority.
(e) For terms governing Terminus’ delivery of internet advertising placement Services, if applicable, please refer to our Addendum to IAB Standard Terms at https://terminus.com/IABaddendum/. Such Addendum to IAB Standard Terms is incorporated into this Agreement by this reference.
(f) Terminus shall provide implementation services, training services, web advertisement creative services, and other professional services (“Implementation Services”) as agreed by the Parties in an Order Form. The scope of such Implementation Services may be agreed to in a separate Declaration of Scope executed by the Parties (each a “DOS”). Upon execution of a DOS by the Parties, the DOS shall become a part of, and shall be subject to, the terms of this Agreement. Terminus shall control the means, methods, and manner of its performance of the Implementation Services delivered under a DOS. If there is a conflict between a DOS and these Terms of Service, the Terms of Service shall prevail. Terminus may utilize subcontractors in its provision of the Implementation Services, provided that Terminus shall remain liable for all subcontractor acts and omissions related to providing such Implementation Services.
(g) “Customer Data” means all data, information, or material that Customer submits to the Services in the course of using the Services. Customer Data does not include the name and contact information of those Customer employees who are the business contacts responsible for interacting with Terminus in connection with the Customer-Terminus business relationship under this Agreement. THE DATA PROCESSING ADDENDUM AT https://terminus.com/dpa/ (the “DPA”) ACCOMPANIES THESE TERMS OF SERVICE AND SETS FORTH ADDITIONAL TERMS OF OUR AGREEMENT THAT APPLY TO THE EXTENT ANY CUSTOMER DATA PROVIDED TO TERMINUS INCLUDES PERSONAL DATA.
(h) “Order Form” shall mean the documents for placing orders for Services hereunder that are entered into between Customer and Terminus from time to time, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate of Customer agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms executed hereunder shall be deemed to be incorporated herein by reference.
(i) For users of Terminus’ Prospect Engine Services (the “Prospect Engine”): In connection with the performance of the Prospect Engine, Customer may provide Terminus with account-level data points (which for the avoidance of doubt is Customer Data as defined above), and Terminus may then provide to Customer additional data points that augment the Customer Data (the “Supplementary Data”). THE DATA TRANSFER AGREEMENT AT https://terminus.com/dta/ (the “DTA”) ACCOMPANIES THESE TERMS OF SERVICE AND SETS FORTH ADDITIONAL TERMS OF OUR AGREEMENT THAT APPLY TO THE EXTENT THAT TERMINUS PROVIDES CUSTOMER WITH ANY SUPPLEMENTARY DATA. FOR THE AVOIDANCE OF DOUBT, THE NATURE OF THE TRANSFER OF DATA FROM TERMINUS TO CUSTOMER IN RELATION TO THE PROSPECT ENGINE SERVICES IS THAT OF CONTROLLER-TO-CONTROLLER.
2. License
Terminus hereby grants to Customer a non-exclusive, non-transferable, worldwide, non-sublicensable right and license to use the Services for Customer’s internal business purposes for the term specified in the applicable Order Form, subject to the terms of this Agreement and the applicable Order Form. Terminus reserves all rights, title, and interest in and to the Services, including all related intellectual property rights, subject to the limited rights expressly granted hereunder.
3. Availability and Support
(a) Terminus will provide the Services in a manner consistent with marketing technology industry standards, which includes reasonable service interruptions due to Excusable Delays or scheduled maintenance. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Terminus’ reasonable control (collectively referred to as “Excusable Delays”). Except for reasonable service interruptions due to Excusable Delays or regularly scheduled maintenance, the Online Services shall be available not less than 99.9% of the time, on a monthly basis.
(b) Terminus will provide to Customer the following support services related to the Online Services for the duration of the Agreement: (i) support, for up to 12 general tickets / calendar year, via the Help Center (at https://support.terminus.com/hc/en-us) regarding operation and use of the Online Services during Terminus’ normal business hours (M-F 8:00AM to 8:00PM EST); and (ii) programming to correct any demonstrated errors in the Online Services necessary to enable reasonable use of the Online Services. Customer should promptly report any errors in the operation of the Online Services to Terminus. Terminus may make modifications to its support offerings from time to time at its reasonable discretion.
4. Communications
(a) Customer will be exclusively responsible for the content of all communications sent using the Services.
(b) Terminus does not own any Customer Data. Customer, and not Terminus, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use all Customer Data, and except as expressly set forth herein and subject to any requirements of applicable law, Terminus shall not be responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store any Customer Data. In the event this Agreement is terminated, Terminus will make available to Customer a file of the Customer Data within thirty (30) days of termination if Customer so requests at the time of termination. Upon Terminus’ termination for cause, Customer’s right to access or use Customer Data within or in conjunction with the Services shall immediately cease.
(c) For users of Chat Services: Customer acknowledges and agrees that Terminus cannot control the chat content posted by Customer or by third parties to the Services (“Chat Content”). Customer may be exposed to, and the Services may process, Chat Content that may violate applicable law or that Customer may find offensive, indecent, incorrect, or objectionable. Customer further agrees that under no circumstances will Terminus or its Affiliates or licensors be liable in any way for any Chat Content, including any errors or omissions in any Chat Content, or any loss or damage of any kind incurred as a result of any Chat Content. Customer must assess and bear all risks associated with the use of any Chat Content, including any reliance on the integrity or accuracy of such Chat Content.
5. Restrictions
Customer shall use the Services for internal business purposes only as contemplated by this Agreement and shall:
(a) not use the Services if, in Terminus’ reasonable determination, Customer is or becomes a direct competitor of Terminus, or in violation of or beyond the scope of the license granted herein;
(b) not use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party;
(c) not permit any third party to access the Services, or otherwise sell, rent, license, provide, or distribute the Services; provided, however, that Customer may authorize a contractor to process and implement the Services (“Third Party Contractor”), if such Third Party Contractor has entered into a written agreement with Customer to: (i) access and use the Services solely to perform services for Customer; (ii) treat the Services with confidentiality and not disclose or distribute the Services to any third party including any affiliates of the Third Party Contractor; and (iii) limit access to the Services only to employees or agents with a “need to know” in order to perform the Third Party Contractor’s agreed upon services for Customer;
(d) not use the Services to communicate any message or material that (i) is libelous, harmful to minors, obscene, or constitutes pornography or is otherwise unlawful; (ii) causes offense or danger to others, as determined by Terminus in its reasonable discretion; or (iii) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law;
(e) not create derivative works from the Services, or otherwise reverse engineer or access the Services to (i) build a product or service competitive with the Services; (ii) build a product using similar ideas, features, functions, or graphics of the Services; or (iii) copy any ideas, features, functions, or graphics of the Services;
(f) not use the Online Services in any manner that could damage, disable, overburden, impair, or otherwise interfere with Terminus’ infrastructure, or interfere or attempt to interfere with the proper working of the Online Services;
(g) not attempt to gain unauthorized access to the Online Services or related systems or networks, or systematically access the Online Services using “bots” or “spiders”; and
(h) not use or distribute the Services in any manner that violates any applicable local, state, domestic and/or international laws, rules, and regulations.
6. Suspension
In the event of any breach or threatened breach of this Agreement by Customer (including non-payment of fees), without limiting Terminus’ other rights and remedies, Terminus may immediately, with written notice (email being sufficient) suspend Customer’s access to the Services.
7. Fees
Customer will pay the Online Services subscription fee (the “Platform Fee”) and all other fees due for Services according to the prices and terms listed in the Order Form. All fees are payable in US Dollars and are non-cancelable and nonrefundable unless expressly otherwise set forth herein. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes imposed on Terminus’ net income). In the event Terminus pays any such taxes and has not collected them previously from Customer, Customer shall promptly reimburse Terminus.
8. Intellectual Property
Terminus alone (and its Affiliates and licensors, where applicable) shall own all right, title, and interest, including all related intellectual property rights, in and to Terminus technology and the Services, as well as any and all suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any other party relating to the Services (all of the foregoing being the “Rights”). To the extent that any such Rights are not deemed owned by Terminus pursuant to the prior sentence, Customer hereby irrevocably assigns and transfers all such Rights to Terminus. The Terminus name, the Terminus logo, the marks of Terminus’ licensors, and the product names associated with the Services are trademarks of Terminus or third parties, and no right or license is granted to use them.
Customer also hereby grants to Terminus a non-exclusive, worldwide, royalty-free, fully paid-up, non-sublicensable (except to Terminus’s contractors and service providers), perpetual and irrevocable license to copy, anonymize, de-identify, aggregate, process, and create derivative works of Customer Data for the purpose of deriving Anonymous Data. “Anonymous Data” means anonymous statistical and usage data, and data related to the functionality of the Online Services, provided such data cannot be used to identify Customer or its user. For clarity, Terminus may use Anonymous Data for any and all purposes, including combining or incorporating the Anonymous Data with or into other data and information, using the Anonymous Data to create improved and new success vectors, models, products, and services and generating statistics for marketing purposes.
9. Representations and Warranties
Each Party represents and warrants that it has the legal power and authority to enter into this Agreement and there is no outstanding contract or commitment which may limit, restrict, or impair its ability to perform its obligations hereunder. In addition, Terminus represents and warrants that (a) it will provide the Services in a manner consistent with marketing technology industry standards reasonably applicable to the provision thereof; (b) the Services will perform substantially in accordance with the online Terminus help documentation under normal use and circumstances; and (c) it will utilize commercially reasonable efforts to establish and maintain the security standards set forth in Schedule 1 attached hereto.
In addition, Customer represents and warrants that (x) its use of the Services will comply with all applicable federal, state, and local laws and regulations, including those laws and regulations regarding telemarketing, customer solicitation, data protection, and privacy; and (y) it owns or otherwise has and will have the necessary rights in, and consents relating to, the Customer Data.
10. Confidentiality
(a) The Parties each acknowledge that the other Party treats its products, development processes, business methods, business information, and prices as confidential and that they constitute the commercially valuable proprietary products and/or services and trade secrets of the respective Party, regardless of whether they may be copyrighted, patented, or trademarked.
(b) During the term of this Agreement, each Party will learn or receive information about the other which the other treats as confidential, including but not limited to all business, marketing, financial and customer-related data (“Confidential Information”). Each Party agrees that Confidential Information received from the other shall be treated as confidential and protected with the same level of care as the receiving Party treats its own confidential information (but in no event less than reasonable care). Each Party agrees not to use any disclosed Confidential Information for any purpose other than exercising its rights and fulfilling its obligations hereunder and will not transfer, distribute, or disclose to any third party any Confidential Information of the other Party, except as expressly authorized in writing by the other Party and shall confine knowledge and use of the Confidential Information received to its employees and contractors who require such knowledge and use of the information in the ordinary course of and scope of their employment pursuant to this Agreement, and who are subject to written confidentiality agreements no less restrictive than this Agreement. Notwithstanding the foregoing, Confidential Information shall not include information which (i) has entered the public domain by no action of the receiving Party hereunder; (ii) was already rightfully in the possession of the receiving Party when received from the disclosing Party; (iii) is received from a third party without breach of any obligation owed to the disclosing Party; or (iv) was developed independently by the receiving Party by individuals without access to the disclosing Party’s Confidential Information.
(c) The receiving Party may disclose Confidential Information of the disclosing Party if it is compelled by law to do so, provided the receiving Party gives the disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing Party’s cost, if the disclosing Party wishes to contest the disclosure. If the receiving Party is compelled by law to disclose the disclosing Party’s Confidential Information as part of a civil proceeding to which the disclosing Party is a party, and the disclosing Party is not contesting the disclosure, the disclosing Party will reimburse the receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
(d) The obligations of the Parties, with regard to the Confidential Information of the other that constitutes trade secrets, shall remain in effect for as long as such Confidential Information shall remain a trade secret under applicable law. All other Confidential Information shall remain protected during the term of this Agreement and for three (3) years thereafter.
(e) Terminus and Customer acknowledge that the damages for unauthorized and/or improper disclosure of the Confidential Information of the other Party may be irreparable; therefore, the Parties are entitled to seek injunction for such alleged breaches in addition to other legal remedies that may be available to the Parties.
(f) The provisions of this Agreement respecting the Parties’ obligations relating to Confidential Information shall supersede all prior agreements of the Parties, whether written or oral. It is the intention of the Parties that the confidentiality provisions of this Agreement shall govern their relationship going forward.
11. Indemnification
(a) Each Party (in the context of this Section 11, the “Indemnifying Party”) will defend the other Party (in the context of this Section 11, the “Indemnified Party”) against (or settle at its expense and with the prior written consent of the Indemnified Party, not to be unreasonably withheld, conditioned, or delayed) any third party claim, suit, action, or proceeding: (a) in the case of Terminus, alleging that the Services infringe upon any intellectual property rights of a third party (“Infringement Claim”); and (b) in the case of Customer, arising from or relating to the Customer Data, including that the collection of the Customer Data by Customer and the provision of Customer Data to Terminus, or the collection by Terminus of Customer Data at the direction of Customer, is or alleged to be in violation of any Customer privacy policy or applicable laws and regulations (a “Customer Data Claim”). The Indemnifying Party shall indemnify and hold the Indemnified Party harmless from and against all losses awarded against the Indemnified Party in a final judgment arising out of or resulting from any such claim.
(b) Where Customer notifies Terminus of an Infringement Claim or Terminus determines in its reasonable discretion that there may be an Infringement Claim related to the Services, Terminus shall have the option at its own expense to (i) procure the right for Customer to continue using the Services; (ii) replace or modify the Services to eliminate the infringement without materially reducing the Services’ functionality or performance; or (iii) refund the Platform Fee the Customer actually paid for the infringing Services for the period of time that such infringing Services were not usable, in which case the Customer’s rights in the Services shall terminate.
(c) Terminus will have no obligations under this Section 11 to Customer for an Infringement Claim, and Customer will have no obligations under this Section 11 to Terminus for a Customer Data Claim if such claim arises from the other Party’s acts or omissions, materials, from any modifications or changes made by the Indemnified Party, or from any combination with materials, products, or services not provided by the Indemnifying Party.
(d) The Party seeking indemnification hereunder shall promptly notify the Indemnifying Party in writing of any claim and provide the Indemnifying Party with sole control over the defense or settlement of the claim, and such information and assistance to defend or settle the claim as the Indemnifying Party may reasonably request. The Indemnifying Party may not settle any claim in a manner that adversely affects the Indemnified Party’s rights or admits liability on the part of the Indemnified Party without the Indemnified Party’s prior written consent.
(e) This Section 11 sets forth each Party’s sole and exclusive remedy for any claim for which indemnification is sought.
12. Disclaimer, Limitation of Liability, and Insurance
(a) EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE SERVICES AND ALL SUPPLEMENTARY DATA IS PROVIDED ON AN “AS IS” BASIS AND TERMINUS AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF SAID SUPPLEMENTARY DATA AND SERVICES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY TERMINUS AND ITS LICENSORS.
(b) EXCEPT AS EXPRESSLY PROVIDED ELSEWHERE HEREIN, UNDER NO CIRCUMSTANCES WILL EITHER PARTY OR ITS LICENSORS BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, OR COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION. EXCEPT FOR LIABILITY ARISING OUT OF A BREACH BY CUSTOMER OF ITS USE RESTRICTIONS UNDER SECTION 5, FINAL JUDGEMENTS AND SETTLEMENTS ARISING OUT OF EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 OR OUT OF A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS (EXCEPT FOR PERSONAL DATA) UNDER SECTION 10 AND CUSTOMER’S PAYMENT OBLIGATIONS, IN NO EVENT WILL THE AGGREGATE LIABILITY THAT EITHER PARTY AND ITS SUPPLIERS (INCLUDING LICENSORS AND THIRD PARTY PROVIDERS) MAY INCUR IN ANY AND ALL ACTIONS OR PROCEEDINGS UNDER THIS AGREEMENT EXCEED THE TOTAL PLATFORM FEES (WHICH, FOR THE AVOIDANCE OF DOUBT, EXCLUDES MEDIA SPEND) THAT TERMINUS ACTUALLY RECEIVED FROM CUSTOMER UNDER THIS AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. NOTWITHSTANDING ANYTHING CONTAINED HEREIN, THE AGGREGATE LIABILITY THAT TERMINUS MAY INCUR, WHETHER FOR DIRECT DAMAGES OR FOR INDEMNIFICATION, ARISING OUT OF ANY BREACH OF THE DPA, DTA, OR ANY BREACH OF CONFIDENTIALITY WITH RESPECT TO PERSONAL DATA, INCLUDING A THIRD PARTY INCURSION INTO ANY COMPUTER OR DATABASE MAINTAINED BY OR ON BEHALF OF TERMINUS, SHALL NOT EXCEED THREE TIMES (3X) THE TOTAL PLATFORM FEES (EXCLUDING MEDIA SPEND) THAT TERMINUS ACTUALLY RECEIVED FROM CUSTOMER UNDER THIS AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
(c) During the term of this Agreement, Terminus at its sole cost and expense shall maintain the following insurance coverage and shall provide written evidence thereof upon Customer’s request:
(i) Commercial General Liability on an “occurrence basis,” with a limit of not less than $1,000,000 combined single limit per occurrence for bodily injury and property damage liability.
(ii) Workers’ Compensation as required under any workers’ compensation or similar law in the jurisdiction where work is performed.
(iii) Employer’s Liability with a limit of not less than $500,000 by accident or disease.
(iv) Umbrella/Excess Liability with a minimum limit of $5,000,000 in excess of the insurance required herein.
(v) Technology Errors and Omissions/Cyber Liability including Network Security/Privacy covering liability for loss or damage due to an act, error, omission, or negligence and for claims arising from unauthorized access to or use of the Services in an amount of at least $2,000,000. Such insurance shall cover network security and privacy risks.
13. Term and Termination
(a) Term of Agreement. This Agreement becomes effective upon its execution by both Parties, or upon execution of an Order Form by Customer which incorporates it by reference, and shall continue in effect until such time as no active Order Form granting Customer access to the Services exists, or as otherwise terminated pursuant to the provisions herein.
(b) Term of Order Form(s). Customer’s access to the Services commences on the Contract Start Date indicated in the applicable Order Form, and continues until the Contract End Date specified therein. Except as may be otherwise specified in the applicable Order Form, the Order Form shall automatically renew for a period of time equal to the originally specified expiring term in such Order Form or one (1) year (whichever is longer), unless either Party delivers no less than sixty (60) days written notice preceding the applicable Contract End Date to the other Party, or as otherwise stated in an applicable Order Form, of its intent not to renew the Order Form.
(c) Termination for Cause. If a Party materially breaches the Agreement or any Order Form, the non-breaching Party may terminate the Agreement and any applicable Order Forms for cause upon thirty (30) days’ prior written notice if such breach remains uncured at the expiration of such thirty (30) day period, or with immediate effect if such breach is incurable or the breaching Party has clearly communicated its intent not to cure.
(d) Termination for Insolvency. In the event that either Party hereto is adjudged insolvent or bankrupt, or upon the institution of any proceeding regarding insolvency, receivership, liquidation, or assignment for the benefit of creditors, then such Party will immediately give notice thereof to the other Party, and the other Party may terminate the Agreement and all Order Forms upon written notice.
(e) Payment Upon Termination. Upon any Termination for Cause (as described in Section 13(c) by Terminus, Customer shall pay any unpaid fees described in all applicable Order Forms, regardless of whether such fees were due before or after the effective date of termination. In the event of termination for cause by Customer, Terminus shall refund all prepaid fees attributable to the period of time after the effective date of the termination for cause. In no event shall termination by Customer or Terminus relieve Customer of the obligation to pay any fees payable to Terminus for the period prior to the effective date of termination.
(f) Assignment. This Agreement is binding on the Parties hereto and their respective successors and permitted assigns. Neither Party may assign this Agreement without the prior written consent of the non-assigning Party, except to: (i) an affiliate controlled by, controlling, or under common control with the assigning Party; or (ii) in connection with a merger or consolidation (so long as the assignment is to the newly merged or consolidated entity, and such entity is not a competitor of the non-assigning Party) or the sale of all or substantially all of its assets (so long as the assignment is to the acquirer of such assets, and such acquirer is not a competitor of the non-assigning Party). Any assignment in violation of this section is void.
(g) Force Majeure. Either Party’s failure to perform any term or condition of this Agreement as a result of conditions beyond its control, including but not limited to, acts of God, war, strikes, fires, floods, governmental restrictions, power failures, epidemics, pandemics, or damage or destruction of any network facilities or servers (each a “Force Majeure Event”), shall not be deemed a breach of this Agreement, provided that the failing Party promptly notifies the non-failing Party of its inability to perform and a brief description of the reason(s) why. Such excusal from a Party’s performance due to a Force Majeure Event shall only last so long as the event itself continues and for such reasonable period of time thereafter as is reasonably necessary for the failing Party to recover from such Force Majeure Event. In the event, but only to the extent, that Terminus is not able to provide Services during a Force Majeure Event, Customer’s obligation to pay for the relevant affected Services shall be suspended.
(h) Surviving Provisions. Sections 5 (Restrictions), 7 (Fees), 8 (Intellectual Property), 10 (Confidentiality), 11 (Indemnification), 12 (Disclaimer, Limitation of Liability, and Insurance), 13(e) (Payment Upon Termination), and 14 (General) shall survive any termination or expiration of this Agreement.
14. General
(a) Terminus may give notice to Customer by electronic mail to Customer’s address on record in Terminus’ account information, or by written communication sent by first class mail or pre-paid post to Customer’s address on record in Terminus’ account information. All notices to Terminus shall be sent to: Terminus Software, Inc., Attn: Legal, 925B Peachtree St NE, #313, Atlanta, GA 30309; and [email protected]. General communication regarding Services, such as for routine maintenance, may be provided by means of a general notice on the Online Services portal.
(b) This Agreement shall be governed by Georgia law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, or the United Nations Convention on the International Sale of Goods. Any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Services shall be subject to the exclusive jurisdiction of the state and federal courts located in Atlanta, Georgia.
(c) If either Party successfully prosecutes any action at law or in equity, or for declaratory relief, to secure or protect any rights hereunder, or to enforce any provision of this Agreement or an Order Form against the other Party, then, and in addition to any judgment, order, or other relief obtained in such proceedings, the prevailing Party, shall be entitled to recover from the non-prevailing Party, all reasonable costs, expenses, and attorney’s fees incurred by the prevailing Party in connection with such proceedings, including reasonable attorney’s fees incurred for consultation and other legal services, and fees and costs incurred in attempts to collect prior to placing the claim with an attorney, all performed prior to the filing of such proceeding.
(d) Failure to pursue any remedy resulting from a breach of this Agreement by the non-breaching Party shall not be construed as a waiver of that breach by the non-breaching Party or as a waiver of any subsequent or other breach, unless such waiver is in writing and signed by the non-breaching Party.
(e) This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals, or representations, whether written or oral, concerning its subject matter. Except as described herein or in an Order Form, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both Parties. However, in case of conflict, the terms of the executed Order Form shall take precedence over the body of this Agreement.
(f) No text or information set forth on any other purchase order, preprinted form, or document (other than the executed Order Form) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as closely as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
(g) The Parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between Customer and Terminus as a result of this Agreement or Customer use of the Services.
(h) Terminus will be entitled to display Customer’s corporate name and logo on Terminus’ website and marketing materials, and to identify Customer as a Terminus customer.
(i) No rules of construction are intended or shall be applied in the interpretation of this Agreement, and both Parties shall be deemed joint authors hereof for all purposes.
SCHEDULE 1: SECURITY STANDARDS
1. Security Controls and Safeguards.
1.1 Terminus implements controls aligned to industry standards intended to keep Personal Data (as defined in the Data Processing Addendum) secure throughout the Agreement term and shall maintain security measures designed to: (a) protect the security of Terminus systems which interact with Personal Data; (b) protect against any reasonably anticipated threats or hazards to the security or integrity of Terminus systems which interact with Personal Data; and (b) protect against unauthorized access to or use of Terminus systems which interact with Personal Data that could result in harm to the Customer.
1.2 Terminus maintains access controls which include, but are not limited to, the following:
(a) Limiting access to its information systems and the facilities in which they are housed to properly authorized persons.
(b) Access by Terminus personnel to Personal Data is removed upon termination of employment or a change in job status that results in the personnel no longer requiring access to Personal Data.
(c) System passwords conform to strong password standards (sixty-four (64) characters minimum) that include length, complexity and expiration. A maximum of five (5) password attempts can be made, after which access is blocked until the password is reset by authorized personnel.
(d) Terminus encrypts access to Personal Data during transmission over the Internet.
1.3 Terminus monitors its network and production systems and implements and maintains security controls and procedures designed to prevent, detect and respond to identified threats and risks. Such monitoring and testing includes, but is not limited to, the following:
(a) Employing an industry standard network intrusion detection system to monitor and block suspicious network traffic.
(b) Reviewing access logs on servers and security events.
(c) Reviewing privileged access to production systems.
(d) Performing network vulnerability assessments on a regular basis. Scans will be performed using industry standard scanning tools that identify application and hosting environment vulnerabilities. Terminus shall maintain a vulnerability remediation program.
(e) Engaging third parties to perform network penetration testing on at least an annual basis.
1.4 Terminus shall ensure that all endpoints run an anti-virus solution and apply timely signature updates, and that all critical, exploitable vulnerabilities are patched in a timely manner.
2. Uses and Disclosures of Personal Data. Terminus will not use or disclose Personal Data except as necessary to perform its obligations under this DPA and the Agreement.
3. Audits.
3.1 Terminus will obtain attestation reports related to its information security program (SSAE 16, SOC2 or an equivalent report) at least annually and keep such reports for at least three (3) years following each attestation. Upon request, the results of these audits will be provided to Customer in a form acceptable to Customer within ten (10) days of completing the audit.
3.2. Terminus acknowledges that Customer may be subject to regulation and audit by governmental and/or regulatory authorities or standards organizations under applicable laws, rules and regulations. If any such entity exercises its right to audit Customer, Terminus shall provide reasonable assistance by allowing inspection, on Terminus’s premises, of relevant documents or records. In lieu of an audit, Customer may request Terminus provide to Customer a copy of an attestation report by an independent third-party auditor.
4. Security Awareness and Training. Terminus shall provide annual security and privacy training for all personnel with access to Personal Data.
5. Background Checks. Terminus shall perform a criminal background check on any employee or other personnel performing under this Agreement.
6. Business Continuity and Disaster Recovery.
6.1. Terminus has policies and procedures in place for responding to an emergency or other occurrence (for example, fire, vandalism, system failure, pandemic, and natural disaster) that could damage Personal Data or production systems that contain Personal Data.
6.2. Terminus’s Disaster Recovery plan includes provisions to ensure service restoration is within commercially reasonable efforts and is performed in conjunction with a data center provider’s ability to provide adequate infrastructure at the prevailing failover location.
6.3. Terminus relies on reputable data center providers, multiple levels of power redundancy, uninterrupted power supply (UPS) and backup power for Terminus’s system containing Personal Data. The power systems of the data centers processing Personal Data are designed to run uninterrupted during a total utility power outage, with every server receiving conditioned UPS power. The UPS power subsystem is redundant and has instantaneous failover if the primary UPS fails.
6.4. Data center facilities containing Personal Data have advanced fire suppression systems and redundant heating, ventilation and air conditioning systems providing appropriate and consistent airflow, temperature and humidity levels.
6.5. Data center facilities utilize snapshot and data mirroring capabilities. Backup data is not transferred cross border. The integrity of local backups is tested monthly by restoring a complete database from a selected snapshot copy to test systems and validate the data integrity. This process is also undertaken for offsite backups on a quarterly basis.
version 2023.08.11
