Master Services Agreement & Terms of Service
This Main Services Agreement governs your purchase, receipt, access and use of our Services. By accepting this Agreement by (i) indicating acceptance in an online form, (ii) executing an Order Form that references this Agreement, or (iii) using Free Services; you agree to the terms of this Agreement.
DEFINITIONS
“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.
“Agreement” means this Main Services Agreement.
“Beta Services” means services or functionality that may be made available to you to try at your option at no additional charge which is designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Bridge”, “we”, “us”, and “our” means or refers to Bridge Financial Inc, a Delaware corporation.
“Content” means information obtained by us from publicly available sources, our third-party content providers or our clients, and made available to you through the Services.
“Client”, “you”, and “your” means or refers to, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.
“Client Information” means non-public or proprietary information submitted to us by you or on your behalf, excluding Content.
“Documentation” means the applicable Service’s documentation, specifications, usage guides and policies, as updated from time to time, accessible via bridge.financial or login to the applicable Service.
“Free Services” means Services that we make available to you free of charge. Free Services exclude Purchased Services.
“Non-Bridge Services” means products or services made available to you within or as part of a Service, that is provided by you or a third party, including those that may be referenced or advertised as part of a Service.
“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between you and us, including any addenda and supplements thereto.
“Parties” means you and us collectively, each a “Party”.
“Purchased Services” means Services that you purchase under an Order Form, as distinguished from Free Services.
“Securities” means one or more than one security as defined in the Securities Act of 1933; including, without limitation, preferred or common stock or other ownership in a business, options, warrants, debt with warrants, convertible debt, hybrid capital, or other rights to acquire equity interests in a Bridge client (or any of its subsidiaries or any entity formed to acquire Securities or assets of such client).
“Services” means the products and services you order under an Order Form or provided by us to you as a Free Service. “Services” exclude Content and Non-Bridge Services.
“Transaction” means a transaction or series of transactions, whether by sale, purchase, transfer, merger, consolidation, restructuring, reorganization, recapitalization, joint venture, exchange, or similar activity in which you transfer or receive assets or Securities, or right or interest in assets or Securities, in a Bridge client or Bridge client Affiliate.
“Transaction Fee” means a percent of the gross proceeds of a Transaction (as stated in an Order Form) you owe to us, upon the occurrence of such Transaction (or upon each transaction if a series of transactions), in consideration for the Services; or the event no Transaction is consummated during the term of this Agreement, the actual costs incurred by us in connection to Services provided to you, as determined in our sole discretion.
“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by you to use a Service, for whom you have purchased or granted access (or in the case of any Free Service, for whom a Service has been provisioned), and to whom you (or, when applicable, we at your request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, your employees, consultants, contractors and agents, and third parties with which you transact business.
BRIDGE RESPONSIBILITIES
Provision of Purchased Services. We will (a) make the Services and Content available to you pursuant to this Agreement and applicable Order Forms and in material accordance with Documentation, (b) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which we will give advance electronic notice), (ii) any unavailability caused by circumstances beyond our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving our employees), Internet service provider failure or delay, Non-Bridge Service, or denial of service attack, and (iii) as otherwise indicated in the applicable Documentation or Order Form, and (d) provide the Services in accordance with laws and government regulations applicable to our provision of Services to our yous generally (i.e., without regard for your particular use of the Services), and subject to your and your Users’ use of the Services in accordance with this Agreement, the Documentation and the applicable Order Form.
Protection of Client Information. We will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Information, as described in the Documentation. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Client Information (other than by you or your Users). Upon your request made within 30 days after the effective date of termination or expiration of this Agreement, we will make Client Information available to you for export or download as provided in the Documentation. After such 30-day period, we will have no obligation to maintain or provide any Client Information, and as provided in the Documentation will thereafter delete or destroy all copies of Client Information in our systems or otherwise in our possession or control, unless legally prohibited.
Bridge Personnel. We will be responsible for the performance of our personnel (including our employees and contractors) and their compliance with our obligations under this Agreement, except as otherwise specified in this Agreement.
Additional Services. We may make Free Services and Beta Services (collectively “Additional Services”) available to you. Your use of Additional Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall control. You agree that we, in our sole discretion and for any or no reason, may terminate your access to the Additional Services or any part thereof. You agree that any termination of your access to the Additional Services may be without prior notice, and you agree that we will not be liable to you or any third party for such termination. You are solely responsible for exporting Client Information from the Additional Services prior to termination of your access to the Additional Services for any reason, provided that if we terminate your account, except as required by law, we will provide you a reasonable opportunity to retrieve Client Information.
(A) Beta Services. You acknowledge and agree that Beta Services (i) Beta Services are intended for evaluation purposes only, (ii) are not supported or subject to any of our obligations, representations or warranties under the Agreement, and (iii) may never be made generally available. You may immediately terminate Beta Services for any reason.
(B) Free Services. Free Services are provided to you without charge up to certain limits as described in the Documentation. Usage over these limits requires your purchase of additional resources or services.
NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY BRIDGE” SECTION BELOW, THE ADDITIONAL SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND WE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE ADDITIONAL SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE OUR LIABILITY WITH RESPECT TO THE FREE SERVICES SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, WE AND OUR AFFILIATES AND OUR LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE ADDITIONAL SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE ADDITIONAL SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE ADDITIONAL SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO US AND OUR AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE ADDITIONAL SERVICES, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.
USE OF SERVICES AND CONTENT
Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form, (b) subscriptions for Purchased Services may be added during a subscription term, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. You agree that your purchases are not contingent on the delivery of any future functionality, features or services, or dependent on any oral or written public comments made by us regarding future functionality, features or services.
Usage Limits. Services and Content are subject to usage limits specified in Order Forms and Documentation. If you exceed a contractual usage limit, we may work with you to seek to reduce your usage so that it conforms to that limit. If, notwithstanding our efforts, you are unable or unwilling to abide by a contractual usage limit, you will execute an Order Form for additional quantities of the applicable Services or Content promptly upon our request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below.
Client Responsibilities. You will (a) be responsible for your Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Client Information, the means by which you acquired Client Information, your use of Client Information with the Services, and the interoperation of any Non-Bridge Services with which you use the Services or Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify us promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Non-Bridge Services with which you uses Services or Content. Any use of the Services in breach of the foregoing by you or your Users that in our judgment threatens the security, integrity or availability of our services, may result in our immediate suspension of the Services, however we will use commercially reasonable efforts under the circumstances to provide you with notice and an opportunity to remedy such violation or threat prior to any such suspension.
Usage Restrictions. You will not (a) make any Service or Content available to anyone other than you or Users, or use any Service or Content for the benefit of anyone other than you or your Affiliates for the purposes of a Transaction, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-Bridge Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-Bridge Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access, copy or use any of our intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works of a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on your own intranets or otherwise for your own internal business purposes or as permitted in the Documentation, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.
Removal of Content and Non-Bridge Services. If you receive notice, including from us, that Content or a Non-Bridge Service may no longer be used or must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the Acceptable Use and External Facing Services Policy, you will promptly do so. If you do not take required action, including deleting any Content you may have downloaded from the Services, in accordance with the above, or if in our judgment continued violation is likely to reoccur, we may disable the applicable Content, Service and/or Non-Bridge Service. If requested by us, you shall confirm deletion and discontinuance of use of such Content and/or Non-Bridge Service in writing and we shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if we are required by any third-party rights holder to remove Content, or receive information that Content provided to you may violate applicable law or third-party rights, we may discontinue your access to Content through the Services.
NON-BRIDGE SERVICES
NON-BRIDGE SERVICES. We or third parties may make available third-party products or services, including, for example, Non-Bridge Services and implementation and other consulting services. Any acquisition by you of such products or services, and any exchange of data between you and any Non-Bridge provider, product or service is solely between you and the applicable Non-Bridge provider. We do not warrant or support Non-Bridge Services or other Non-Bridge products or services, whether or not they are designated by us as “certified” or otherwise, unless expressly provided otherwise in an Order Form. We are not responsible for any disclosure, modification or deletion of Client Information resulting from access by such Non-Bridge Service or its provider.
Incorporation of Non-Bridge Services. The Services may contain features designed to work with Non-Bridge Services. We cannot guarantee the continued availability of such Service features, and may cease providing them without entitling you to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Bridge Service ceases to make the Non-Bridge Service available for integration with the corresponding Service features in a manner acceptable to us.
FEES AND PAYMENT
Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (a) fees are based on Services and Content purchased and not actual usage, (b) payment obligations are non-cancelable and fees paid are non-refundable, and (c) quantities purchased cannot be decreased during the relevant service term.
Invoicing and Payment. You will provide us with valid and updated credit card or bank account information, or with a valid purchase order or alternative document reasonably acceptable to us. If you provide credit card or bank account information to us, you authorize us to charge such credit card or bank account for all Purchased Services listed in the Order Form for the initial service term and any renewal term(s) as set forth in the “Term of Purchased Subscriptions” section below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card or bank account, we will invoice you in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information.
Overdue Charges. If any invoiced amount is not received by us by the due date, then without limiting our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) we may condition future Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above.
Suspension of Service and Acceleration. If any charge owed by you under this or any other agreement for services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts you have authorized us to charge to your credit card), we may, without limiting its other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for you paying by credit card or bank account whose payment has been declined, we will give you at least 10 days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section below for billing notices, before suspending services to you.
Payment Disputes. We will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with its purchases hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible under this section, we will invoice you and you will pay that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are solely responsible for taxes assessable against it based on its income, property and employees.
PROPRIETARY RIGHTS AND LICENSES
Reservation of Rights. Subject to the limited rights expressly granted hereunder, Bridge, our Affiliates, our licensors and Content providers reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
Access to and Use of Content. You have the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation.
License by Client to Bridge. You grant us, our Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Client Information or Non-Bridge Service created by or for you, as appropriate for us to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. If you choose to use a Non-Bridge Service with a Service, you grant us permission to allow the Non-Bridge Service and its provider to access Client Information and information about your usage of the Non-Bridge Service as appropriate for the interoperation of that Non-Bridge Service with the Service. Subject to the limited licenses granted herein, we acquire no right, title or interest from you or your licensors under this Agreement in or to any Client Information or Non-Bridge Service.
License by Client to Use Feedback. You grant to us and our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and make and incorporate into our services any suggestion, enhancement request, recommendation, correction or other feedback provided by you or your Users relating to the operation of our or our Affiliates’ services.
CONFIDENTIALITY
Definition of Confidential Information. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving 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. Your Confidential Information includes Client Information; our Confidential Information includes the Services and Content, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each Party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the Parties in connection with the evaluation of additional Bridge services.
Protection of Confidential Information. As between the Parties, each Party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither Party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other Party’s prior written consent, provided that a Party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, we may disclose the terms of this Agreement and any applicable Order Form to a contractor or Non-Bridge Service provider to the extent necessary to perform our obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the 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 that Confidential Information.
REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
Representations. Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
Client Representations. You represent and warrant that (a) Client Information will be complete, accurate, current and void of any errors, omissions or fraudulent, misleading, or misrepresented information; (b) you hold all rights necessary to grant us license in accordance with Section 6.3 of this Agreement; and (c) neither Client Information nor use of Client Information (i) infringes or misappropriates any third party rights, (ii) violates or encourages others to violate applicable law, (iii) contains any obscene, defamatory, disparaging, deceptive, profane, or indecent content, or (iv) violates any associated confidentiality obligations.
Bridge Warranties. We warrant that during an applicable subscription term (a) this Agreement, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Information, (b) we will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to the “Incorporation of Non-Bridge Services” section above, we will not materially decrease the overall functionality of the Services. For any breach of a warranty above, your exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
Mutual Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SERVICES PROVIDED FREE OF CHARGE, CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
Bridge Disclaimers. YOU ACKNOWLEDGE AND AGREE THAT UNLESS EXPLICITLY STATED IN AN ORDER FORM OR THE DOCUMENTATION FOR APPLICABLE SERVICES:
(A) SERVICES ARE NOT AVAILABLE TO ANY BUSINESS OR USER LOCATED OUTSIDE THE UNITED STATES;
(B) WE MAY FACILITATE THE PURCHASE AND SALE OF ASSETS; HOWEVER, DO NOT FACILITATE, SOLICIT, ENCOURAGE, PROMOTE OR PARTICIPATE IN THE PURCHASE OR SALE OF SECURITIES;
(C) WE ARE NOT YOUR BROKER, INVESTMENT BANKER, M&A ADVISOR, BUSINESS TRANSFER AGENT, FIDUCIARY, ATTORNEY, ACCOUNTANT, AGENT OR REPRESENTATIVE, AND YOUR USE OF THE SERVICES DOES NOT CONSTITUTE SUCH AN ARRANGEMENT BETWEEN YOU AND US;
(D) WE DO NOT PROVIDE LEGAL OR TAX ADVICE OR ANALYSIS, TAX OR LIEN CLEARANCES, TAX OR REGULATORY FILINGS, OR OTHER NOTIFICATIONS, PUBLISHING OR CLEARANCES YOU MAY BE REQUIRED TO OBTAIN PRIOR TO A TRANSACTION, AND YOU WILL NOT RELY ON THE SERVICES, CONTENT OR OTHER INFORMATION YOU RECEIVE FROM US AS SUCH;
(E) WE DO NOT WARRANT OR REPRESENT TO THE ACCURACY, COMPLETENESS, FITNESS FOR ANY PURPOSE OR NON-INFRINGEMENT OF THE CONTENT, INCLUDING INFORMATION MADE AVAILABLE THROUGH THE SERVICES ABOUT ANOTHER BUSINESS, WHETHER OR NOT SUCH CONTENT IS DESIGNATED AS “CERTIFIED” OR CONTAINS OTHER SIMILAR DESIGNATIONS; YOU ARE SOLELY RESPONSIBLE FOR ALL DILIGENCE AND VERIFYING THE ACCURACY OF SUCH CONTENT;
(F) WE DO NOT GUARANTEE ANY OUTCOME OR THE SUCCESS OF ANY TRANSACTION;
(G) WE ARE NOT A VALUATION FIRM AND ANY VALUATION REPORTS OR INFORMATION WE PROVIDE TO YOU ARE ESTIMATES, FOR INFORMATIONAL PURPOSES ONLY, AND SHOULD NOT BE RELIED ON FOR TAX OR FINANCIAL REPORTING PURPOSES, OR TO SUPPLEMENT A VALUATION PERFORMED BY A QUALIFIED PROFESSIONAL; AND
(H) WE DO NOT PROVIDE SERVICES TO RESOLVE ANY DISPUTES BETWEEN YOU AND ANOTHER BRIDGE CLIENT OR THIRD PARTY.
MUTUAL INDEMNIFICATION
Indemnification by Bridge. We will defend you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify you from any damages, attorney fees and costs finally awarded against you as a result of, or for amounts paid by you under a settlement approved by us in writing of, a Claim Against You, provided you (a) promptly give us written notice of the Claim Against You, (b) give us sole control of the defense and settlement of the Claim Against You (except that we may not settle any Claim Against You unless it unconditionally releases you of all liability), and (c) give us all reasonable assistance, at our expense. If we receive information about an infringement or misappropriation claim related to a Service, we may in our sole discretion and at no cost to you (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching our warranties under “Bridge Warranties” above, (ii) obtain a license for your continued use of that Service in accordance with this Agreement, or (iii) terminate your Service upon 30 days’ written notice and refund you any prepaid fees covering the remainder of the term of the terminated Service. The above defense and indemnification obligations do not apply if (I) the allegation does not state with specificity that the Services are the basis of the Claim Against You; (II) a Claim Against You arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by us, if the Services or use thereof would not infringe without such combination; (III) a Claim Against You arises from Free Services or Services under an Order Form for which there is no charge; or (IV) a Claim Against You arises from Content, a Non-Bridge Service or your breach of this Agreement, the Documentation or applicable Order Forms.
Indemnification by Client. You will defend us and our Affiliates against any claim, demand, suit or proceeding made or brought against us by a third party (a) alleging that the combination of a Non-Bridge Service or configuration provided by you and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or (b) arising from (i) your use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form, (ii) any Client Information or your use of Client Information with the Services, or (iii) a Non-Bridge Service provided by you (each a “Claim Against Us”), and will indemnify us from any damages, attorney fees and costs finally awarded against us as a result of, or for any amounts paid by us under a settlement approved by you in writing of, a Claim Against Us, provided we (A) promptly give you written notice of the Claim Against Us, (B) give you sole control of the defense and settlement of the Claim Against Us (except that you may not settle any Claim Against Us unless it unconditionally releases us of all liability), and (C) gives you all reasonable assistance, at your expense. The above defense and indemnification obligations do not apply if a Claim Against Us arises from our breach of this Agreement, the Documentation or applicable Order Forms.
Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any third-party claim described in this section.
LIMITATION OF LIABILITY
Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER 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 “FEES AND PAYMENT” SECTION ABOVE.
Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
TERM AND TERMINATION
Term of Agreement. This Agreement commences on the date you first accept it and continues until all service terms hereunder have expired or have been terminated.
Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, (i) the term for each subscription shall end on the last day of the calendar month following the month in which this Agreement commences, and (ii) subscriptions will automatically renew for a successive one month term on the first day of each subsequent month, unless either Party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
Termination. A Party may terminate this Agreement for cause (i) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Refund or Payment upon Termination. If this Agreement is terminated by you in accordance with the “Termination” section above, we will refund you any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by us in accordance with the “Termination” section above, you will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination.
Surviving Provisions. The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Removal of Content and Non-Bridge Services,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Client Information” will survive any termination or expiration of this Agreement for so long as we retain possession of Client Information.
GENERAL PROVISIONS
Export Compliance. The Services, Content, other Bridge technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Bridge and Client each represent that it is not on any U.S. government denied-party list. You will not permit any User to access or use any Service or Content in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation.
Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
Entire Agreement and Order of Precedence. This Agreement is the entire agreement between you and us regarding the Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The Parties agree that any term or condition stated in a Client purchase order or in any other Client order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity. No claim or action arising out of this Agreement may be asserted by either Party more than 1 year after the date on which such Party has actual knowledge of the material facts upon which the claim or action is based; such limitation will not extend any applicable statute of limitations.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
Advertising and Publicity. Either Party may reference the name and logo of the other Party in lists of customers or vendors. Either Party may issue press releases, promotional materials, and advertising materials related to this Agreement with the other Party’s prior written consent. You may not issue any media release or make any public announcement or public disclosure relating to or referencing any Non-Bridge Service in connection with this Agreement, without the prior written consent of such Non-Bridge Service provider. The Parties agree to issue a joint press release announcing their relationship as soon as reasonably practicable after the completion of a Transaction.
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, we 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.
Notices. Except as otherwise specified in this Agreement, any notice given under this Agreement will be effective upon electronic mail transmission to:
(A) regarding legal or contract notices to us, the Bridge Legal Team at notice@bridge.financial;
(B) regarding accounting or billing notices to us, the Bridge Accounts Payable at ap@bridge.financial;
(C) regarding other notices to us, our signatory of this Agreement or to such other address or individual as we may specify from time to time by written notice to you;
(D) regarding notices to you, (i) to your signatory of this Agreement at the email address on the applicable Order Form, or (ii) to such other address or individual as you may specify from time to time by written notice to us.
We may otherwise provide notices and communications to you by means of a general notice through the Services, or by electronic mail to your administrator’s email address on record in your Bridge account information.
Venue; Waiver of Jury Trial. The state and Federal courts located in Salt Lake County, Utah or Utah County, Utah will have exclusive jurisdiction to adjudicate any dispute arising out of or related to this Agreement. Each Party hereby consents to the exclusive jurisdiction of such courts and waives any objection it might otherwise have to venue, personal jurisdiction, inconvenience of forum, and any similar or related doctrine. Each Party also hereby waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
Governing Law. This Agreement and any disputes arising out of or related thereto will be governed by and construed in accordance with the laws of the State of Utah, without giving effect to its conflicts of law rules, the United Nations Convention of the International Sale of Goods, or the Uniform Computer Information Transactions Act.