This is a Master Subscription Agreement between you (the Customer) and us (Provider or LionOBytes). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. These terms are so important that we cannot provide our products and services to you unless you agree to them. Please read this Agreement carefully. Your use of the Services is expressly conditioned on your acceptance of this Agreement.
We periodically update these terms. If you have an active LionOBytes subscription, we will let you know when we do via an email or in-app notification.
By accessing or otherwise using the Subscription Service, the authorized employee executing this agreement on behalf of Customer represents and warrants that he or she has the power and authority to enter into this Agreement and bind Customer to the terms of this Agreement. IF CUSTOMER AGREES TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT, PLEASE EXECUTE THE AGREEMENT AND PROCEED TO ACCESS THE SUBSCRIPTION SERVICE. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT, PROVIDER IS UNWILLING TO GRANT CUSTOMER ANY RIGHTS TO USE THE SUBSCRIPTION SERVICE, AND CUSTOMER MUST STOP INSTALLING AND ACCESSING THE SUBSCRIPTION SERVICE.
This Agreement sets forth the terms under which LionOBytes will provide Customer with access to certain proprietary customer relationship management software owned by Provider that is a subscription-based web application entitled LionO360 (the “Subscription Service”).
“3rd Party” or “3rd Parties” means any person or entity not employed by LionOBytes or Customer who enters data or information into the Subscription Service.
“Administrator Users” means the Authorized User(s) designated by Customer who are responsible for administering the Subscription Service and who are issued an Administrator login by LionOBytes or Customer.
“Agreement” means these terms and conditions, the Exhibits attached hereto and any other statements of work, exhibits or appendices thereto, whether attached or incorporated by reference.
“Authorized Users” means individuals who are authorized by Customer to use the Subscription Service, for whom subscriptions to a Subscription Service have been purchased and who have been supplied user identifications and passwords by Customer.
“Customer” means the customer entity that has executed this Agreement and is authorized to use the Subscription Service.
“Customer Data” means all electronic data or information of any kind that is entered into the Subscription Service by Customer or its authorized users including administrative users, authorized users, employees and third parties authorized to use the Subscription Service, regardless of whether or not the Customer Data is owned by Customer during the Term. Customer Data includes: (i) Customer records, data files, input materials, reports, forms; or (ii) any information relating to an identified or identifiable natural person defined as an identifiable person who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his or her physical, physiological, mental, economic, cultural or social identity. Customer Data may include the name, email addresses, telephone numbers and information of any person logging in to the Services or any information pertaining to Customer’s customers including information that is inputted by Customer into the Subscription Service including birth dates, social security numbers, and personally identifiable information (PII) including financial information, and protected health information covered under HIPAA. All Customer Data has been designed, created and provided solely by Customer or by 3rd parties on its behalf without the participation or involvement of LionOBytes. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Customer Data entered into the Subscription Service. LionOBytes assumes no responsibility for the accuracy, propriety, or usefulness to Customer of the Customer Data. LionOBytes shall not be liable to Customer or any third-parties for any loss, damage or expense whatsoever and howsoever arising from any Customer Data entered into the Subscription Service by Customer or by an entity on its behalf. Customer acknowledges that LionOBytes will rely on the accuracy of the Customer Data provided to LionOBytes by Customer as it performs its requested functions under this Agreement. Customer acknowledges that it owns all of the Customer Data or has all rights to grant such licenses to LionOBytes to use such Information in furtherance of providing the Services without infringement or violation of any third-party rights. LionOBytes provides no warranties, representations or indemnification to Customer for its access to, and use of the Customer Data.
“Documentation” means the administrative and user manuals published by LionOBytes and provided by LionOBytes to Customer with the Subscription Service, which may be updated from time to time, but excluding any sales or marketing materials.
“Electronic Communications” means any information transmitted in whole or part, electronically received and/or transmitted through the Subscription Service.
“Equipment” means that Customer shall be responsible for the cost of, and for providing, its own devices to access the Subscription Service.
“Order Form” shall mean the LionOBytes Purchase Order Form attached to this Agreement as Exhibit “A,” which sets forth the monthly Fees to be paid by Customer for using the Subscription Service.
“Term” has the meaning set forth in Section 10.1 below.
“Third Party Integrated Services” means applications or services that are provided and managed by third party providers, and interoperate with the Subscription Service including but not limited to any third party that enables the Subscription Service to act as a conduit to send Customer Data or any type of information to the intended party.
2.1 LionOBytes grants to Customer and Customer accepts from LionOBytes, a limited, revocable, non-exclusive, non-transferable right to access and use and permit Authorized Users to access and use the Subscription Service solely for the internal business operations of Customer during the Term. The Subscription Service shall not be used by Customer or by Authorized Users for, or on behalf of, third parties that are not authorized under this Agreement. Customer shall use its best efforts to ensure that the Authorized Users use the Subscription Service in accordance with the terms and conditions of this Agreement. Customer acknowledges that its right to use the Subscription Service will be conditioned upon: (i) Customer’s payment of the Fees associated with using the Subscription Service set forth in Exhibit A; and (ii) the Subscriptions Service being web-based only and will not be installed on any servers owned or controlled by Customer or otherwise provided to Customer without LionOBytes's consent.
2.2 Authorized Users: Passwords, Access, and Notification. Customer, through its Administrator, shall authorize access to and assign unique passwords and usernames for all employees authorized to access the Subscription Service. Authorized User logins are for designated Authorized Users and cannot be shared or used by more than one Authorized User. Customer will be responsible for the confidentiality and use of Authorized User’s passwords and usernames. LionOBytes will act as though any Electronic Communications it receives under Customer’s passwords, username, and/or account number will have been sent by Customer. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Subscription Service and shall promptly notify LionOBytes of any unauthorized access or use of the Subscription Service and any loss or theft or unauthorized use of any Authorized User’s password or name and/or Subscription Service account numbers.
2.3 Use of the Subscription Service. Customer is responsible for all activities and Electronic Communications conducted by its Authorized Users and for its Authorized Users’ compliance with this Agreement, including the content of all Customer Data. Customer will not: (a) sell, lease, license or sublicense the Subscription Service; (b) introduce into or transmit through the Subscription Service any virus, worm, trap door, back door, and other harmful or malicious code, files, scripts, agents, or programs; (c) transmit or store infringing material in the Subscription Service; (d) send any Electronic Communication from the Subscription Service that is unlawful, harassing, libelous, defamatory or threatening. Except as permitted by this Agreement, no part of the Subscription Service may be copied, republished, displayed in any form or by any means. Customer agrees not to access the Subscription Service by any means other than through the interfaces that are provided by LionOBytes.
2.4 Third Party Integrated Services. LionOBytes allows third party vendors, service providers, software developers and information systems companies to provide applications, websites and/or features via the LionOBytes Subscription Service Platform (“integrated Service” or “Integrated Services”). LionOBytes offers Integrated Services by either; i) licensing technology from a third party and embedding it in the Subscription Service; or ii) establishing a connection or conduit with a third party’s software platform or information system enabling the Subscription Service to send Customer Data or any type of information to the intended party. i) and ii) are collectively the “Embedded Technology”). Customer consents to use Embedded Technology with the Subscription Service.
Integrated Services. Customer acknowledges that: (i) in order to use certain Integrated Services, there may be additionally applicable terms and conditions including those which may establish a direct contractual relationship between Customer and an Integrated Services provider; and (ii); Uptime, availability and support of Integrated Services may be provided by an Integrated Services provider and not LionOBytes. If subscribed for Integrated Services, Customer agrees LionOBytes may allow the provider of such Integrated Services to access Customer’s Data as required for the interoperation of that Integrated Service with the LionOBytes Subscription Service platform. Customer acknowledges LionOBytes is not responsible for any disclosure, modification or deletion of Customer’s Data resulting from access by an Integrated Service or its provider. LionOBytes does not warrant or support Integrated Services, except as specified in a specific addendum to this Agreement related to the Integrated Service.
Embedded Technology will be used among other ways to collect data and information (“third-party information”) from various systems: (i) to identify opportunities in the third party information to be utilized by Customer while using the Subscription Service; (ii) to make improvements to the software underlying the Subscription Service; and (iii) to measure Key Performance Indicators (KPIs). LionOBytes has no duty to verify the accuracy or reliability of all such third party information and KPIs and shall not be liable for any loss, damage or expense whatsoever and howsoever arising from any breach or error, loss, damage, or claim caused by Customer or any third party’s reliance on any such third party information and KPIs.
2.5 Hosting Center Facilities. The hosting center facilities supporting the Subscription Service, all related Applications and the Third Party Integrated Services where applicable and delivered by LionOBytes for usage by the Customer shall be provided for and managed by a third party vendor (“third party vendor”) not a party to this Agreement. LionOBytes shall not be liable in respect of any breach or error in delivery, loss, damage or interruption to the Subscription Service, or Third-Party Integrated Services during the Term of this Agreement caused by the third-party vendor. Customer shall immediately notify LionOBytes, in writing of any such error, loss, breach, damage or interruption. LionOBytes shall not be liable for any loss, damage or expense whatsoever and howsoever arising from any breach or error, loss, damage, defect or interruption to the Subscription Service caused by the third-party vendor.
2.6 Security. Each party will use commercially reasonable measures to maintain and enforce physical and logical security procedures to prevent unauthorized access to and/or use of the Subscription Service and the Customer Data. LionOBytes will use commercially reasonable measures to secure and defend the Subscription Service against “hackers” and others who may seek to modify or access the Subscription Service or the Customer Data without authorization. LionOBytes will use commercially reasonable efforts to remedy any breach of security or unauthorized access. LionOBytes shall not be responsible or liable for the disclosure of or unauthorized access to Customer Data caused by Customer, its Authorized Users, Customer’s affiliates, or the employees, agents or contractors of any of the foregoing.
2.7 Transmission of Data. The Subscription Service allows Customer to send and receive Electronic Communications and Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to use of the Subscription Service. Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by LionOBytes. LionOBytes is not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data across networks not owned and/or operated by LionOBytes, including but not limited to, the Internet and Customer’s local network.
2.8 Compliance with Laws. LionOBytes will comply with all applicable laws and regulations affecting the operation of LionOBytes's business, including any applicable export restrictions and data protection laws. Customer will be solely responsible: (i) for compliance by Customer with all laws and governmental regulations affecting Customer’s business, (ii) for using the Subscription Service in a manner to assist it in complying with same, and (iii) the content and accuracy of all reports and documents prepared in whole or in part by using the Subscription Service. Customer will review any calculations made by using the Subscription Service and satisfy itself that those calculations are correct. The Subscription Service is not a substitute for the advice of an attorney and does not include any legal, regulatory, accounting or tax advice and Customer and its affiliates will rely solely upon their own advisors with respect to any such advice. Customer agrees and acknowledges that LionOBytes is not a law firm, does not provide legal advice or representation, and that no attorney-Customer relationship exists or will be formed between LionOBytes and Customer.
2.9 Service Level. LionOBytes’ commitment to the availability of the Subscription Service and related matters are specified on the “Service Level Agreement” attached hereto as Exhibit A (the “Service Level Agreement” or “SLA”), which is hereby incorporated by reference.
2.10 Maintenance and Support for Subscription Service. LionOBytes will provide Maintenance and Support for the Subscription Service as described in Exhibit A hereto (“SAAS Maintenance and Support”), which is hereby incorporated by reference. SAAS Maintenance and Support is included in the subscription fees paid by Customer for the Subscription Service.
2.11 Implementation Services. Implementation and training services will be performed in accordance with LionOBytes’ customary practices for the level of services purchased. Implementation is performed remotely unless otherwise specified.
3.1 "Customer Content" shall mean any materials uploaded by Customer onto the Subscription Service or by a third party on Customer’s behalf at any time, including, but not limited to, any images, photographs, illustrations, graphics, audio clips, video clips or text. Customer assumes sole responsibility for ensuring that the Customer Content does not infringe or violate any right of any third party. Notwithstanding the foregoing, Provider reserves the right, in its sole discretion, to exclude or remove from the Subscription Service any Content uploaded by Customer which, in Provider’s sole reasonable discretion, may violate any law or third party rights or which otherwise exposes or potentially exposes Provider to civil or criminal liability or public ridicule.
3.2 Customer shall not place nor cause to be placed on the Subscription Service any Content that contains any content or materials which is obscene, threatening, malicious, which infringe on or violate any applicable law or regulation or any proprietary, contract, moral, privacy or other third party right, or which otherwise exposes LionOBytes to civil or criminal liability. Customer assumes sole responsibility for ensuring that the Customer Content does not infringe or violate any right of any third party. Notwithstanding the foregoing, LionOBytes reserves the right, in its sole discretion, to exclude or remove from the Subscription Service any Content uploaded by Customer which, in LionOBytes's sole reasonable discretion, may violate any law or third party rights or which otherwise exposes or potentially exposes LionOBytes to civil or criminal liability or public ridicule.
3.3 Ownership of Customer Content. Customer represents to Provider and unconditionally guarantees that the Customer Content, including any elements of text, graphics, photos, designs, trademarks, or other artwork uploaded onto the Subscription Service are owned by the Customer, or that the Customer has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend LionOBytes from any claim or suit arising from the use of such elements furnished by the Customer.
3.4 Customer represents and warrants that (a) Customer Content does not and shall not contain any content, materials, advertising or services that are inaccurate or that infringe on or violate any applicable law, regulation or right of any third party, including, without limitation, export laws, or any proprietary, contract, moral, or privacy right or any other party right, and (b) Customer owns the Customer Content or otherwise has the right to use the Customer Content.
3.5 Customer Data Responsibility. Customer acknowledges and agrees that any and all Customer Data is the responsibility of the person or entity from whom such Data originated. Thus, Customer and not LionOBytes, is entirely responsible for all Customer Data that its Users upload, post, email, transmit or otherwise make available via the Subscription Service. Accordingly, LionOBytes does not guarantee the accuracy, integrity, timeliness, completeness or quality of any Customer Data. Customer agrees that it must evaluate, and bear all risks associated with, the use of or reliance on any Customer Data. LionOBytes does not endorse or make any representations about any Customer Data, or any results that may be obtained from using any Customer Data. Further, Customer understands that by using the Subscription Service it may be exposed to Customer Data that is inaccurate, offensive or objectionable. Under no circumstances will LionOBytes be liable in any way for any Customer Data, including any errors or omissions in any Customer Data, or any loss or damage of any kind incurred as a result of the use of any Customer Data.
3.6 Customer Data. Title to, and all Intellectual Property Rights in, the Customer Data (and all complete or partial copies thereof in any medium or form) are retained by Customer or its Users unless LionOBytes is requested by a government agency or authority, subpoena or court order to produce the Customer Data. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Customer Data. LionOBytes will not use the Customer Data for any purpose other than to provide the Subscription Service to Customer and to improve the Subscription Service.
3.7 Requests for Customer Data during Term. Customer shall have the ability to access and download the Customer Data free of charge via the Subscription Service. During the Term of the Agreement, Customer may upon written request to LionOBytes, request a data backup of the Customer Data. At such time, dependent on payment of all undisputed amounts by Customer, LionOBytes shall download (at the then current fee) all Customer Data within the Services to a LionOBytes secure ftp site or Customer hosted ftp site or via DVD in .csv format (as determined by LionOBytes, or such other medium and/or format as the parties may mutually agree).
3.8 During the Term, Customer grants LionOBytes and its agents a non‐exclusive, worldwide, royalty‐free right to use, copy, modify, make available, display, and adapt the Customer Data to provide the Subscription Service to Customer and its Users. Except as expressly provided herein, LionOBytes shall not have any other rights with respect to the Customer Data and will not take any action inconsistent with the foregoing acknowledgment.
3.9 Data Return/Destruction & Transition Services. All data inputted into the Subscription Service by Customer shall be returned and/or exported by LionOBytes to Customer in an agreed upon format within thirty (30) days of the contract being terminated or ending.
4.1 Confidential Information. For purposes of this Agreement, “Confidential Information” shall include the terms of this Agreement, Customer Data, each party’s proprietary technology, business processes and technical product information, designs, issues, all communication between the Parties regarding the Subscription Service and any information that is clearly identified in writing at the time of disclosure as confidential. Notwithstanding the foregoing, Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the Receiving Party; (4) the Receiving Party becomes aware of from a third party not bound by non-disclosure obligations to the Disclosing Party and with the lawful right to disclose such information to the Receiving Party; (5) is independently developed by the Receiving Party without use of or reference to the Confidential Information, or (6) is aggregated, de-identified data that does not contain any personally identifiable or Customer-specific information.
4.2 Non-Disclosure Obligations. Each party agrees: (a) not to use or disclose Confidential Information except to the extent reasonably necessary to perform its obligations or exercise rights under this Agreement or as directed by the disclosing party; (b) to protect the confidentiality of Confidential Information in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information), and (c) to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or a regulation.
Customer agrees that all rights, title and interest in and to all intellectual property rights in the Subscription Service and Documentation (including without limitation the software used to provide the Subscription Service) are retained and owned exclusively by LionOBytes or its licensors. In addition, LionOBytes shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Subscription Service and its other product and service offerings any ideas, suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the operation of the Subscription Service. Any rights not expressly granted herein are reserved by LionOBytes.
Except the right to access and use the Subscription Service, as expressly provided herein, this Agreement does not grant to Customer any rights to, or in, patents, copyrights, Personal Database rights, trade secrets, trade names, trademarks (whether registered or unregistered) or any other rights or licenses with respect to the Subscription Service or the software (the “Software”) used to provide the Subscription Service. Customer shall not attempt, or directly or indirectly allow any Authorized User or other third party to attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, reverse compile, disassemble, reverse engineer, download, transmit or distribute all or any portion of the Subscription Service, Work Product and/or Software in any form or media or by any means. The provisions of this paragraph 5 shall survive termination of this Agreement.
5.1 Use of Marks. LionOBytes' Marks and the names and logos associated with the Subscription Service or parts thereof (“LionOBytes Marks”) are trademarks of LionOBytes. Other third-party product, service and company names, logos or marks mentioned as part of the Subscription Service are trademarks and/or service marks of their respective owners. During the Term, LionOBytes hereby grants Customer the right to use the LionOBytes Marks applicable to the Subscription Service solely for the marketing and promotion of such Subscription Service for the Business Purpose only in accordance with LionOBytes's published guidelines for use of such Marks. Customer shall only be permitted to use LionOBytes’ Marks with the written consent of LionOBytes. To the extent the Business Purpose includes the provision of outsourced services to third parties, of which the Subscription Service is a part of or in addition to such services, Customer shall use its best efforts, at its expense, to market and promote each Subscription Service for the Business Purpose, including formal and active print and online campaigns, and participation in seminars and forums with its Customers. Any materials for such purpose shall prominently display the LionOBytes Marks applicable to such Subscription Service. Any and all goodwill associated with these rights and the LionOBytes Marks shall automatically vest in LionOBytes. Customer agrees that LionOBytes may refer to Customer as a Customer of LionOBytes and hereby grants LionOBytes the right to use Customer ’s trademarks, trade names, trade symbol, and logos (collectively “Customer Marks”) in connection with the marketing and promotion of LionOBytes, the Subscription Service or part thereof (including a specific Program or Service). LionOBytes may also use the experience of Customer and its Users in marketing materials, including white papers, case studies, brochures and webcasts. LionOBytes agrees to use Customer Marks consistent with Customer ’s published guidelines with respect to such use. Any and all goodwill associated with these rights and the Customer Marks shall automatically vest in Customer.
5.2 Server Information & Analytics. As part of providing the Subscription Customer acknowledges and agrees that LionOBytes may collect and use benchmarking, transactional or performance information or data provided to or collected by the Subscription or the LionOBytes servers making available the Subscription, including traffic, traffic patterns, activity, activity patterns, page impressions, field and record counts or types, and similar analytics that may be conducted on the Subscription or any Data on a de‐identified basis (collectively, “Server Information”). All Server Information shall be deemed LionOBytes Data and LionOBytes Confidential Information. For clarity, any analytics produced therefrom shall be anonymous as to Customer, its affiliates, and their Users and shall not reasonably be linked back to Customer, its affiliates or their Users and shall not contain Personal Information.
5.3 Ownership of Deliverables If Software Development Work is included in any Order Form and mutually agreed upon Statement of Work (a “Statement of Work”) to create any derivative versions (“Deliverables”) of the Subscription Service, Customer acknowledges and agrees that LionOBytes owns all of the intellectual property rights in the Deliverables and Documentation including without limitation any pre-existing materials and Confidential Information supplied by Customer for incorporation into such Deliverable and the software used to provide the Deliverables. Any modification, enhancement, derivative work, or other improvement of or based upon the Subscription Service, which includes a Deliverable, whether developed by LionOBytes or a Customer, will be LionOBytes exclusive property and Customer hereby irrevocably and in perpetuity assigns to LionOBytes all worldwide rights, title, and interest therein.
LionOBytes grants to Customer a revocable, royalty-free, non-exclusive, non-transferable, non-assignable right to use any Deliverable if an Order Form has been executed, to the extent necessary to permit Customer to use the Deliverable in connection with the Subscription Service during the Term until such time that the Agreement ends or is terminated then Customer shall cease using any enhancements, modifications, adaptations and derivative works of the Subscription Service made by LionOBytes or Customer and Customer shall return all such products to LionOBytes immediately. Customer acknowledges that nothing in this Agreement will restrict or limit LionOBytes from performing similar services and creating similar Deliverables for any third party.
5.4 No Work Made for Hire. (a) Customer agrees that no Work Product will be developed from a Deliverable as a “work made for hire.” As such, copyright and all other intellectual property rights vest with LionOBytes when the Deliverable is fixed in a tangible medium of expression. In the event that Customer is ever determined to own copyrights or other intellectual property rights in the Deliverable, Customer hereby: (i) irrevocably assigns to LionOBytes all rights, title, and interest that Customer might have in the Deliverable; (ii) agrees to execute all documents necessary to implement and confirm the letter and intent of this Section; and (iii) irrevocably appoints LionOBytes as Customer’s attorney‐in‐fact to execute any ownership documents to perfect such ownership interests of LionOBytes, such right being coupled with an interest.
(b) Deliverable as Confidential Information. The Deliverables are deemed to be LionOBytes's Confidential Information hereunder and, except as permitted herein, must not be disclosed by Customer without LionOBytes's express written approval. Customer may use the Deliverable for any internal business purpose and Customer may disclose the Deliverable to any contractor or vendor of Customer that assists Customer with its internal business affairs and operations, provided that Customer first binds such third party contractor or vendor to the same restrictions on use and disclosure of the Deliverable contained herein. Any other disclosure or publication of any Deliverable requires LionOBytes' prior written consent.
6.1 Fees. Customer is responsible to pay LionOBytes for all monthly Fees (“Fees”) set forth in the Purchase Order or Invoice Form that LionOBytes will send to the Customer. LionOBytes will invoice Customer on the first business day of each month for that month’s access to the Subscription Service and Fees owed by Customer pursuant to the Purchase Order Form. All invoices are due upon receipt.
Customer shall also have the option to pay upfront for twelve (12) months of Subscription Services which shall be reflected in an invoice.
All amounts are payable in U.S. dollars. Payment amounts which are more than 30 days late after written notice of delinquency has been provided will incur interest in an amount equal to one and one-half percent (1 1/2%) per month or the maximum allowed by law, whichever is less.
6.2 Taxes. All Fees payable under the Purchase Order Form are net amounts and do not include taxes or duties of any kind. Customer will be responsible for, and will promptly pay, any applicable duties, sales tax, use tax, and value added taxes (VAT) or other similar taxes, if any, associated with this Agreement or Customer’s receipt or access to the Subscription Service, excluding taxes based on LionOBytes' gross or net income or franchise taxes. In the event that LionOBytes is required to collect or pay any tax for which Customer is responsible, Customer will pay such tax directly to LionOBytes. If Customer is a tax-exempt organization and is not obligated to pay taxes arising out of this Agreement, Customer will provide LionOBytes with any required documentation to verify its tax-exempt status with the applicable taxing authorities.
THE SUBSCRIPTION SERVICE, LIONOBYTES’ API, LIONOBYTES’ TRADEMARKS, PLATFORM, SOFTWARE, SERVICE OFFERINGS, UPDATES AND OTHER PROPRIETARY AND CONFIDENTIAL INFORMATION OF LIONOBYTES (HEREINAFTER COLLECTIVELY REFERRED TO AS "LIONOBYTES’ SERVICES") ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND.
CUSTOMER ASSUMES ALL RISKS AND RESPONSIBILITIES FOR SELECTION OF LIONOBYTES’ SERVICES TO ACHIEVE CUSTOMER'S INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE AND PERFORMANCE OF, AND RESULTS OBTAINED FROM LIONOBYTES’ SERVICES. LIONOBYTES MAKES NO WARRANTY THAT: (i) LIONOBYTES’ SERVICES WILL BE ERROR FREE OR FREE FROM INTERRUPTION OR FAILURE; (ii) THE LIONOBYTES’ SERVICES, SOFTWARE, UPDATES OR DOCUMENTATION IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE; (iii) THERE WILL BE NO INTERFERENCE WITH CUSTOMER'S ENJOYMENT OF LIONOBYTES’ SERVICES; OR (iv) LIONOBYTES’ SERVICES WILL FULFILL ANY OF CUSTOMER’S PARTICULAR PURPOSES OR NEEDS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LIONOBYTES DISCLAIMS ALL EXPRESS, IMPLIED OR STATUTORY STANDARDS, GUARANTEES, REPRESENTATIONS OR WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, REASONABLE CARE, WORKMANLIKE EFFORT, RESULTS, LACK OF NEGLIGENCE, ACCURACY OF INFORMATION OR RESULTS, TITLE AND NONINFRINGEMENT WITH RESPECT TO LIONOBYTES’ SERVICES, ANY WARRANTY OF THIRD-PARTY SOFTWARE, PRODUCTS OR SERVICES, FUNCTIONALITY OF HARDWARE, SOFTWARE, FIRMWARE OR COMPUTER SYSTEMS OR ANY WARRANTIES THAT MAY BE ALLEGED TO ARISE AS A RESULT OF CUSTOM OR USAGE. CUSTOMER HEREBY ACKNOWLEDGES THAT LIONOBYTES’ SERVICES MAY NOT BE AVAILABLE OR MAY BECOME UNAVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING, WITHOUT LIMITATION, PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE OF LIONOBYTES’ SERVICES, TELECOMMUNICATIONS INFRASTRUCTURE, OR DELAY OR DISRUPTION ATTRIBUTABLE TO VIRUSES, DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, ACTIONS AND OMISSIONS OF THIRD PARTIES, OR ANY OTHER CAUSE REASONABLY BEYOND THE CONTROL OF LIONOBYTES THEREFORE, LIONOBYTES EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY REGARDING SYSTEM AND/OR SOFTWARE AVAILABILITY, ACCESSIBILITY, OR PERFORMANCE.
TO THE EXTENT PERMITTED BY LAW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, OR SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
CUSTOMER ASSUMES THE ENTIRE COST OF ANY DAMAGES RESULTING FROM CUSTOMER’S USE OF LIONOBYTES’ SERVICES, THE INFORMATION CONTAINED IN OR COMPILED BY LIONOBYTES’ SERVICES, THE INTERACTION (OR FAILURE TO INTERACT PROPERLY) WITH ANY OTHER HARDWARE OR SOFTWARE WHETHER PROVIDED BY LIONOBYTES OR A THIRD PARTY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT WILL LIONOBYTES OR ITS SUPPLIERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, SPECIAL, DIRECT, EXEMPLARY, INDIRECT, RELIANCE, LIQUIDATED, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, REVENUE OR SAVINGS, BUSINESS INTERRUPTION, BUSINESS OPPORTUNITIES, LOSS OR CORRUPTION OF BUSINESS INFORMATION OR ANY PERSONAL OR CUSTOMER DATA, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE DISRUPTION, IMPAIRMENT OR FAILURE, REPAIR COSTS, TIME VALUE OR OTHER PECUNIARY LOSS, BODILY HARM, EMOTIONAL DISTRESS OR LOSS OF LIFE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OR INABILITY TO USE LIONOBYTES’ SERVICES, OR THE INCOMPATIBILITY OF LIONOBYTES’ SERVICES WITH ANY HARDWARE, SOFTWARE OR USAGE, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF LIONOBYTES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. TO THE EXTENT PERMITTED BY LAW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, OR SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU. IF ANY EXCLUSION, DISCLAIMER OR OTHER PROVISION CONTAINED IN THIS AGREEMENT IS HELD TO BE INVALID FOR ANY REASON BY A COURT OF COMPETENT JURISDICTION OR ARBITRATOR AND LIONOBYTES BECOMES LIABLE THEREBY FOR LOSS OR DAMAGE THAT COULD OTHERWISE BE LIMITED LIONOBYTES’ TOTAL LIABILITY TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE FEES PAID BY CUSTOMER TO LIONOBYTES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES WHETHER IN CONTRACT, TORT OR OTHERWISE.
9.1 LionOBytes' Indemnity. LionOBytes shall, at its own expense, defend Customer from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively “Claims”) alleging that the Subscription Service or related Applications as used in accordance with the terms and conditions of this Agreement, infringe the copyrights, trade secrets, patents or trademarks of such third party and shall hold Customer harmless from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) to the extent based upon such a Claim. Excluded from these indemnification obligations are Claims to the extent arising from: (a) use of the Subscription Service in violation of this Agreement or applicable law, (b) use of the Subscription Service after LionOBytes notifies Customer to discontinue use because of an infringement claim, (c) modifications to the Subscription Service not made by LionOBytes, or (d) use of the Subscription Service in combination with any software, application or service not provided by LionOBytes. If a Claim is brought or threatened, LionOBytes shall, at its sole option and expense, use commercially reasonable efforts either: (a) to procure for Customer the right to continue using the Subscription Service without cost to Customer; (b) to modify or replace all or portions of the Subscription Service as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if the remedies described in (a) and (b) above are not commercially feasible, terminate the Agreement and provide to the Customer any pro-rata refund of the Subscription Service fees pre-paid under the Agreement for the remaining terminated portion of the Term. The rights and remedies granted to Customer under this Section 9.1 state LionOBytes' entire liability, and Customer's exclusive remedy, with respect to any claim of infringement of the intellectual property rights of any third-party.
9.2 Customer’s Indemnity. Customer shall, at its own expense, defend and hold harmless LionOBytes from and against any and all Claims, Damages, Losses or Lawsuits alleging: (i) the Customer Data, Customer Content or any Customer trademarks or service marks, or any use thereof, infringes the intellectual property rights or other rights, or has caused harm to a third party; (ii) Customer’s use or misuse of the Subscription Service and related Applications and Integrated Services; and (iii) Customer’s failure to pay all applicable taxes associated with Customer’s use of the Subscription Service or related Applications. Customer shall defend and hold LionOBytes harmless from and against liability for any Losses to the extent based upon such Claims.
9.3 Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section 9, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s expense, with the indemnifying party in the investigation and defense of such Claim. The indemnification obligations under this Section 9 are expressly conditioned upon the indemnified party’s compliance with this Section 9.3.
10.1 Term; Renewals. The term of this Agreement shall be for an initial period of one (1) year from the Effective Date and shall continue thereafter (the “Term”). The Term of each Subscription Service purchased under this Agreement shall continue for the initial term and shall automatically renew for successive twelve (12) month periods unless either party gives the other written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term.
10.2 Termination, Expiration.
a. Either party may terminate this Agreement for material breach thereof by the other party upon thirty (30) days prior written notice of such breach which is not cured during such notice period. Termination of this Agreement for material breach, as set forth herein, shall terminate any orders for the Subscription Service and any related Applications.
b. Such notice by the complaining party shall expressly state all of the reasons for the claimed material breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and shall be sent to the Legal Department of the alleged breaching party at the address listed in the heading of this Agreement (or such other address that may be provided pursuant to this Agreement) (“Notice”).
c. Either party may terminate this Agreement immediately upon written Notice if the other party (i) files a petition, or has a petition filed against it, under any laws relating to liquidation or distribution of assets for the benefit of its creditors due to insolvency which is not abandoned or dismissed within thirty (30) days; or (ii) ceases to carry on business operations in the ordinary course.
d. Upon termination or expiration of this Agreement for any reason, Customer shall have no rights to continued use of the Subscription Service and any related Applications. If this Agreement is terminated as a result of Customer’s material breach of the Agreement, then LionOBytes shall be entitled to all of the Fees due under this Agreement for the entire committed subscription term under this Agreement. If this Agreement is terminated as a result of LionOBytes' material breach of this Agreement, then Customer shall be entitled to a refund of the pro rata portion of any prepaid subscription fees paid by Customer to LionOBytes under this Agreement for the remaining terminated portion of the Term. Customer agrees that LionOBytes shall not be liable to Customer or any third party for any damages suffered by Customer as a result of termination of this Agreement.
10.3 Suspension for Delinquent Account. LionOBytes reserves the right to suspend Customer’s and any of its Authorized Users’ access to and/or use of the Subscription Service for any accounts for which any payment is due but unpaid but only after LionOBytes has provided Customer at least one (1) delinquency notice, and at least ten (10) days have passed since the transmission of the first notice. Customer agrees that LionOBytes shall not be liable to Customer or any other third party for any suspension of the Subscription Service pursuant to this Section.
10.4 Survival. Sections 4, 5, 7, 8, 9, 10, 11 and 12 and any other provisions necessary to interpret the respective rights and obligations of the parties hereunder will survive any termination or expiration of this Agreement, regardless of the cause of such termination or expiration.
Customer agrees that during the Term and for a period of twelve (12) months thereafter, neither Customer nor any of its Affiliates shall solicit any employee or subcontractor of LionOBytes to leave his/her/its employment or engagement with LionOBytes, or hire or engage as an employee, consultant, independent contractor or in any other capacity, any employee or subcontractor of LionOBytes, without the prior written consent of LionOBytes. In the event that Customer violates the foregoing, it shall pay liquidated damages to LionOBytes in an amount equal to the first year’s compensation to such individual following such hire or engagement in violation of this provision. General recruitment activities which are in no way targeted at the employee’s or former employees of LionOBytes shall not be deemed a prohibited solicitation under this Section.
12.1 Notices. Notices between the parties will be by personal delivery, courier, facsimile transmission, or certified or registered mail, return receipt requested, and will be deemed given upon receipt at the address of the recipient party or ten (10) days after deposit in the mail. Addresses used will be the ones set forth above or such other address as a party hereto will notify the other in writing.
12.2 Severability. In the event of any invalidity of any provision of this Agreement, the parties agree that such invalidity will not affect the validity of the remaining portions of this Agreement, and further agree to substitute for the invalid provision a mutually agreeable valid provision that most closely approximates the intent of the invalid provision.
12.3 Headings. The headings in this Agreement are for convenience of reference only and have no legal effect.
12.4 No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.
12.5 Assignment. Customer shall not be permitted to assign any of its rights under this Agreement to any other entity (except the right to receive money) without the written consent of LionOBytes. LionOBytes shall be permitted to assign its rights under this Agreement to any successor entity of any kind.
12.6 Relationship. Each party hereto is an independent contractor, and neither party is, nor will claim to be, a legal representative, franchisee, agent or employee of the other.
12.7 Force Majeure. Neither party will be liable to the other for a failure or delay in its performance of any of its obligations under this Agreement (except for the payment of amounts due hereunder) to the extent that such failure or delay is caused by circumstances beyond its reasonable control or by events such as fire, riot, flood, labor disputes, natural disaster, regulatory action, internet or telecommunications failures, terrorist acts, or other causes beyond such party's reasonable control, provided that the non-performing party gives notice of such condition and continues or resumes its performance of such affected obligation to the maximum extent and as soon as reasonably possible.
12.8 Counterparts and Electronic Signatures. This Agreement may be executed in counterparts. A signature transmitted via facsimile, scanned original or third-party e-signature system will be deemed an enforceable signature for the purpose of demonstrating the signing party’s assent to the Agreement.
12.9 Entire Agreement. This Agreement (including the Exhibits hereto) constitutes the entire understanding and agreement between the parties with respect to the subject matter addressed herein and supersedes any and all prior or contemporaneous oral or written communications with respect to such subject matter. In the event of a conflict between the foregoing terms and conditions and any Exhibits to this Agreement, the foregoing terms and conditions will control. The parties agree that in the event Customer utilizes a purchase order, any term therein which purports to modify or supplement the terms of this Agreement will be void with no force or effect. No modification, termination or waiver of any provisions of this Agreement shall be binding upon a Party unless in writing signed by an authorized officer of the relevant Party(ies).
12.10 Governing Law/Arbitration. By using the Services, you agree that the laws of the State of New Jersey without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and Provider.
ANY DISPUTE RELATING IN ANY WAY TO YOUR USE OF THE SERVICES SHALL BE SUBMITTED TO CONFIDENTIAL BINDING ARBITRATION IN BURLINGTON COUNTY, NEW JERSEY EXCEPT FOR INTELLECTUAL PROPERTY CLAIMS BROUGHT BY EITHER PARTY (WHICH FOR PURPOSES OF THIS SECTION DO NOT INCLUDE PRIVACY AND PUBLICITY CLAIMS) AND CLAIMS THAT MAY BE BROUGHT IN SMALL-CLAIMS COURT.
CONFIDENTIAL ARBITRATION UNDER THIS AGREEMENT SHALL BE RESOLVED EXCLUSIVELY UNDER THE CONSUMER ARBITRATION RULES THEN PREVAILING OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA'S CONSUMER RULES"), EXCLUDING ANY RULES AND PROCEDURES GOVERNING OR PERMITTING CLASS OR REPRESENTATIVE ACTIONS. THE RULES ARE AVAILABLE AT THE AMERICAN ARBITRATION ASSOCIATION'S WEBSITE.
YOU AND PROVIDER AGREE TO EXPRESSLY WAIVE ANY RIGHTS TO FILE CLASS OR REPRESENTATIVE ACTIONS OR SEEK RELIEF ON A CLASS OR REPRESENTATIVE BASIS IN ANY JURISDICTION OR FORUM.
THE ARBITRATOR SHALL APPLY NEW JERSEY LAW, AND THE ARBITRATOR'S AWARD SHALL BE BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION. THERE SHALL BE NO APPEAL FROM ANY AWARD OF THE ARBITRATOR. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION UNDER THIS AGREEMENT SHALL BE JOINED TO AN ARBITRATION INVOLVING ANY OTHER PARTY SUBJECT TO THIS AGREEMENT, WHETHER THROUGH CLASS ARBITRATION PROCEEDINGS OR OTHERWISE. IF ANY PART OF THIS ARBITRATION PROVISION IS FOUND TO BE INVALID, UNENFORCEABLE OR ILLEGAL, THE REST OF THIS PROVISION SHALL REMAIN IN EFFECT.
IF THE ENTIRE ARBITRATION PROVISION IS FOUND TO BE INVALID OR UNENFORCEABLE, THEN THE PARTIES CONSENT TO PERSONAL JURISDICTION AND EXCLUSIVE VENUE IN THE STATE COURT LOCATED IN BURLINGTON COUNTY, NEW JERSEY.
Implementation and training services will be performed in accordance with LionOBytes’ customary practices for the level of services purchased. Implementation is performed remotely unless otherwise specified.
Normal business hours of operation: Monday – Friday from 9:00am until 5:00pm. (Holidays include New Year’s Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving and Christmas Day)
After Hours/Holiday support: Provided on an “hourly rate”, Monday – Friday from 6:00pm until 10:00pm and Saturday and Sunday from 8:00am until 6:00pm.
The Support hours may change from time to time at LOB’s sole discretion” and that “commercially reasonable efforts will be made to update Customer when such changes occur.
Any upgrades or additional services and customization not set forth in Agreement to the Software required by Customer will be the subject of a separate agreement and charged as consulting hours at the current prevailing rate at an agreed upon rate.
Customer is solely responsible for installation of the Subscription Service and any related Applications.
The Subscription Service will achieve System Availability (as defined below) of at least 99.5% during each calendar year of the Subscription Term. “System Availability” means the number of minutes in a year that the key components of the Subscription Service is operational as a percentage of the total number of minutes in such year, excluding downtime resulting from (a) scheduled maintenance, (b) events of Force Majeure in the SaaS Agreement), (c) malicious attacks on the system, (d) issues associated with the Customer’s computing devices, local area networks or internet service LionOBytes connections, or (e) inability to deliver services because of acts or omissions of Customer or any user. LionOBytes reserves the right to take the Subscription Service offline for scheduled maintenance for which Customer has been provided reasonable notice and LionOBytes reserves the right to change its maintenance window upon prior notice to Customer. If LionOBytes fails to meet System Availability in any given year this Agreement is in effect, then Customer’s sole and exclusive remedy, and LionOBytes’’ entire liability, is Customer receiving a onetime credit for that year in an amount equal to 1% of the yearly fee for the affected Subscription Service for each 1% loss of System Availability, up to a maximum of Customer’s fees paid for the affected Subscription Service.
This CCPA Data Processing Addendum (“Addendum”) is appended to and made a part of certain [Master Subscription Agreement], dated [June 1st 2019], as may be now or hereafter amended (the “Agreement”). This Addendum is entered into by and between the Parties solely to establish the data protection duties and obligations to the extent that any Personal Information processed in the provision of the Services is subject to the California Consumer Privacy Act of 2018, Cal. Civil Code § 1798.100 et seq (“CCPA”), including any amendments thereto and rules promulgated thereunder.
The Parties agree to the following:
1.1 The Parties acknowledge that Customer is acting as a Business under CCPA; and LionOBytes is acting as a Service Provider under CCPA. Customer shall be solely responsible for complying with the obligations of a Business set forth in the CCPA. Customer shall be solely responsible for complying with the obligations of a Business set forth in the CCPA; and LionOBytes shall be solely responsible for complying with the obligations of a Service Provider set forth in CCPA.
1.2 During the performance of the Agreement, Customer hereby instructs LionOBytes to Process Consumer Personal Information in connection with the Services and consistent with this Addendum and the Agreement. LionOBytes is prohibited from Selling, retaining, using, or disclosing the Personal Information for any purpose (including commercial purpose) other than performing the Services specified herein or as otherwise permitted by the CCPA.
1.3 Customer represents and warrants, on an ongoing basis, that: (i) it is a Business subject to the CCPA; (ii) the Personal Information that Customer discloses to LionOBytes is provided for a Business Purpose; (iii) the provision of Personal Information to LionOBytes hereunder does not constitute a Sale; (iv) it has provided Consumers with a CCPA-compliant privacy notice about its information collection, processing, and sharing practices; and (v) Customer has obtained, as required by applicable laws, all appropriate permissions or consents in and to such Personal Information to provide LionOBytes with such Personal Information for processing in accordance with this Addendum and the Agreement.
2.1 As the Business, Customer shall timely respond to all Consumer requests as applicable under CCPA.
2.2 To assist Customer with its compliance obligations under CCPA, LionOBytes will provide reasonable cooperation to Customer, at Customer’s sole expense, to (1) Delete a Consumer’s Personal Information from LionOBytes’s systems; and (2) to the extent within LionOBytes reasonable control, to assist Customer in responding to Consumer rights requests expressly afforded to Consumers under CCPA. 3) LionOBytes will confirm within 10 days of receipt of a request, and provide the requestor with information about how the business will process the request.
2.3 Customer acknowledges and agrees that: (i) Customer shall verify the identity of the Consumer making such request (or on whose behalf such request is made) in advance of passing such request to LionOBytes; (ii) Customer shall ensure that no statutory exceptions apply to such request in advance of passing such request to LionOBytes; (iii) to the extent the Customer can Delete or otherwise fulfill any other request itself, then LionOBytes will be deemed to have fulfilled its obligations hereunder by informing the Customer how to fulfill such request itself; (iv) once implemented, a Deletion request may not be reversed; and (v) Customer shall pass such request to LionOBytes as soon as practicable.
2.4 To the extent that LionOBytes (i) receives a request from a Consumer to exercise any rights afforded to him/her under CCPA and (ii) it can readily recognize that it received the Personal Information of such Consumer from Customer under this Agreement, then it shall promptly refer such request to Customer and shall not directly respond to such request directly.
3.1 Certification. Each Party hereby certifies that it understands its obligations and restrictions with respect to Personal Information and agrees that it will comply with same. To the extent this Addendum cannot serve as an annual certification of LionOBytes compliance with its obligations and restrictions with respect to Personal Information hereunder, LionOBytes will provide Customer, upon request, with an annual certification of the same. Such annual certification shall be in the form determined by LionOBytes.
3.2 Cost of Compliance. Each Party shall bear its costs of compliance with the provisions of CCPA, except as noted otherwise herein.
3.3 Changes in the CCPA. If any variation is required to this Addendum as a result of the changes in the CCPA, either Party may provide written notice to the other Party of the change in the CCPA and the Parties agree to negotiate, in good faith, to amend the Addendum within ninety (90) days of such notice.
3.4 Order of Precedence. Except as modified by this Addendum, the terms of the Agreement shall remain in full force and effect. Capitalized terms used, but not defined in this Addendum shall have the meaning given to such terms as set forth in the Agreement. In the event of inconsistencies between this Addendum and the remainder of the Agreement, this Addendum shall control with respect to CCPA matters.
The following terms (and their derivatives) will have the meanings set forth below:
4.1 The terms “Aggregate Consumer Information”, “Business”, “Consumer”,“Deidentified”, “Processing”, “Publicly Available”, “Sell”, “Service Provider”, “Third-Party”, and “Verifiable Consumer Request” shall all have the meanings given to them in the CCPA.The following terms (and their derivatives) will have the meanings set forth below:
4.2 “Delete” means the removal, secure removal, destruction, or Deidentification or anonymization of a Consumer’s Personal Information such that it cannot be reasonable recovered, reconstructed, or re-identified to the Consumer.
4.3 “Personal Information” shall mean any Consumer information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household that may be Processed at any time by LionOBytes in anticipation of, in connection with, or incidental to the performance of the Agreement. Personal Information does not include: (1) Consumer information that is Deidentified or Aggregate Consumer Information; (2) Publicly Available information; and (3) the types of personal information as set forth in §§1798(h)(1)-(4) and (o)(1)-(3) of CCPA for as long as such exemptions are in effect.
4.4 “Services” shall have the meaning set in the Agreement and shall, in addition, include technical support and account management activities related thereto, marketing communications related to the Services and LionOBytes, and any Business Purpose. “Business Purpose” shall have the meanings given to it in the CCPA and includes (1) auditing related to a current interaction with the Consumer and concurrent transactions, including, but not limited to, counting ad impressions to unique visitors, verifying positioning and quality of ad impressions, and auditing compliance with this specification and other standards; (2) detecting security incidents, protecting against malicious, deceptive, fraudulent, or illegal activity, and prosecuting those responsible for that activity; (3) debugging to identify and repair errors that impair existing intended functionality; (4) short-term, transient use, provided that the Personal Information is not disclosed to another Third-Party and is not used to build a profile about a Consumer or otherwise alter an individual Consumer’s experience outside the current interaction, including, but not limited to, the contextual customization of ads shown as part of the same interaction; (5) performing services on behalf of the Business or Service Provider, including maintaining or servicing accounts, providing customer service, processing or fulfilling orders and transactions, verifying customer information, processing payments, providing financing, providing advertising or marketing services, providing analytic services, or providing similar services on behalf of the Business or Service Provider; (6) undertaking internal research for technological development and demonstration; (7) undertaking activities to verify or maintain the quality or safety of a service or device that is owned, manufactured, manufactured for, or controlled by the Business, and to improve, upgrade, or enhance the service or device that is owned, manufactured, manufactured for, or controlled by the Business.
This Data Processing Agreement (“DPA”) constitutes an amendment to the LionOBytes Master Services Agreement between You (“Customer”); and US (LionOBytes, Inc). dated June 01, 2019 (the “Agreement”) pursuant to which LionOBytes provides the Services (as defined in the Agreement) to Customer.
The parties agree to comply with the following provisions with respect to any Personal Data Processed by LionOBytes for Customer in connection with the provision of the Services. References to the Agreement will be construed as including this DPA. To the extent that the terms of this DPA differ from those in the Agreement, the terms of this DPA shall govern.
1. “Affiliates” means any entity which is controlled by, controls or is in common control with one of theparties. 2. “Data Controller” means the entity which determines the purposes and means ofthe Processing of PersonalData. 3. “Data Processor” means the entity which Processes Personal Data on behalf of theData Controller. 4. “Data Protection Laws” means all privacy and data protection laws and regulations applicable to the Processing of Personal Data under the Agreement, including, as applicable: (a) the GDPR; and/or (b) the Federal Data Protection Act of 19 June 1992 (Switzerland) and applicable to the Processing of Personal Data under theAgreement. 5. “Data Subject” means the individual to whom Personal Datarelates. 6. “Effective Date” shall have the meaning ascribed to such term in Section11. 7. “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of theCouncil of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive95/46/EC, which shall be in force as of May 25, 2018. 8. “Personal Data” means any information relating to an identified or identifiable person that is subject to the Data Protection Laws as specified in Appendix 1. The types of Personal Data and categories of Data Subjects Processed under this DPA include but are not limited to the following: mobile advertising IDs, IP addresses and cookie ID’s received from Customer regarding the end users of digitalproperties. 9. “Privacy Shield” means the EU-US Privacy Shield Framework and the Swiss-US Privacy Shield Framework as set forth by the US Department ofCommerce. 10. “Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking,erasure or destruction (“Process”, “Processes” and “Processed” shall have the samemeaning). 11. “Security Breach” has the meaning set forth in Section 7 of thisDPA.
12. “Sub-processor” means any sub-processor engaged by LionOBytes for the Processing of PersonalData. 13. “Term” means the period from the Effective Date to the date the DPA is terminated in accordance with Section10.1. 14. “Third Party Partner” means any entity engaged by Customer for the Processing of Personal Data.
3. To the extent the Services involves the Processing of Personal Data, the parties agree that Customer is the Data Controller and LionOBytes is a Data Processor and that the subject matter and details of the processing of such Personal Data are described in Appendix 1. To the extent that the data protection legislation of another jurisdiction is applicable to either party’s processing of data, the parties acknowledge and agree that the relevant party will comply with any obligations applicable to it under that legislation with respect to the processing of that data. LionOBytes shall keep a record of all processing activities with respect to Customer’s Personal Data as required under GDPR.
2. Each party will comply with the obligations applicable to it under the Data Protection Legislation with respect to the processing of Personal Data, including but not limited to providing the other party contact details for each party’s Data Protection Officer which are accurate and up to date. Customer shall, in its use or receipt of the Services, ProcessPersonal Data in accordance with the requirements of the Data Protection Laws and Customer will ensure that its instructions for the Processing of Personal Data shall comply with the Data Protection Laws. If LionOBytes believes or becomes aware that any of Customer’s instructions conflicts with any Data Protection Laws, LionOBytes shall inform Customer within a reasonable amount of time. As between the parties, Customer shall have sole responsibility for determining the legal basis for processing of Personal Data and (to the extent legally required) obtain all consents from Data Subjects necessary for collection and Processing of Personal Data in the scope of theServices.
3. The objective of Processing of Personal Data by LionOBytes is the performance of the Services pursuant to the Agreement. During the Term of the Agreement, LionOBytes shall only Process Personal Data on behalf of and in accordance with the Agreement and Customer’s instructions and shall treat Personal Data as Confidential Information. Customer instructs LionOBytes to Process Personal Data for the following purposes: (i) Processing in accordance with the Agreement in order to provide the Services; and (ii) Processing to comply withother reasonable instructions provided by Customer where such instructions are acknowledged by LionOBytes as consistent with the terms of the Agreement. LionOBytes may Process Personal Data other than on the instructions of the Customer if it is mandatory under applicable law to which LionOBytes is subject. In this situation LionOBytes shall inform the Customer of such a requirement unless the law prohibits suchnotice. Notwithstanding the foregoing and to the extent allowable by law of the applicable jurisdiction, Customer hereby grants to LionOBytes a non-exclusive, perpetual, royalty-free license to use any Personal Data for determining engagement and conversion metrics, to satisfy LionOBytes’s reporting obligations to Customer as set forth in this Agreement, and for internal product development, research and benchmark reporting purposes.
1. As the Data Controller, Customer has the primary responsibility for honoring DataSubject access requests. LionOBytes shall provide reasonable and timely assistance to the Customer (at the Customer'sexpense) to enable the Customer to respond to: (i) any request from a Data Subject to exercise any of its rights under Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable); and (ii) any other correspondence, enquiry or complaint received from a Data Subject in connection with the processing of the Data. In the event that any such request, correspondence, enquiry or complaint is made directly to the LionOBytes (a “Direct Access Request”), LionOBytes shall to the extent legally permitted, promptly inform the Customer providing full details of the same and, upon request, provide the Customer with contact details of the Data Subject(s). If Customer fails to respond to a Direct Access Request within 30 days, LionOBytes reserves the right to take appropriate steps in its reasonable judgement to respond to suchrequest(s).
1. LionOBytes shall ensure that its personnel engaged in the Processing of Personal Data are informed of the confidential nature of the Personal Data as well as any securityobligations with respect to suchData.
2. LionOBytes will take appropriate steps to ensure compliance with the Security Measures outlined in Appendix 2 by its personnel to the extent applicable to their scope of performance, including ensuring that all persons authorized to process CustomerPersonal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality and that any such obligations survive the termination of that individual’s engagement with LionOBytes.
3. LionOBytes shall ensure that access to Personal Data is limited to those personnel whorequire such access to perform theServices.
1. Customer acknowledges and agrees that LionOBytes may engage third-party Sub-processors in connection with the provision of the Services. Any such Sub-processors will be permitted to obtain Personal Data only to deliver the services LionOBytes has retained them to provide and are prohibited from using Personal Data for any other purpose. LionOBytes will have a written agreement with each Sub-processor and agrees that any agreement with a Sub-processor will include substantially the same data protection obligations as set out in thisDPA.
2. A list of Sub-processors is available upon written request to LionOBytes by Customerat docs.LionOBytes.com. LionOBytes may change the list of such other Sub-processors by no less than 5 business days’ written notice to Customer via the LionOBytes user interface. If Customer objects to LionOBytes’s change in such Sub-processors, LionOBytes may, as its sole and exclusive remedy, terminate the portion of the Agreement relating to the Services that cannot be reasonably provided without the objected-to new Sub-processor by providing 30 days’ written notice to Customer.
3. LionOBytes shall be liable for the acts and omissions of its Sub-processors to the same extent LionOBytes would be liable if performing the services of each Sub-processor directly under the terms of this DPA, except as otherwise set forth in theAgreement.
4. Customer acknowledges and agrees that Third Party Partners are not Sub-processors and LionOBytes assumes no responsibility or liability for the acts or omissions of such Third Party Partners.
1. LionOBytes shall maintain administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer’s Personal Data. LionOBytes will implement and maintain technical and organizational measures to protect Customer Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure oraccess as described in Appendix 2 (the "Security Measures"). As described in Appendix 2, the Security Measures include measures to encrypt Personal Data; to help ensure ongoing confidentiality, integrity, availability and resilience of LionOBytes’s systems and services; to help restore timely access to Personal Data following an incident; and for regular testing of effectiveness. LionOBytes may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of theServices.
2. LionOBytes will (taking into account the nature of the processing of Customer Personal Data and the information available to LionOBytes) assist Customer in ensuring compliance with any of Customer’s obligations with respect to the security of Personal Data and Personal Data breaches, including (if applicable) Customer’s obligations pursuant to Articles 32 to 34 (inclusive) of the GDPR, by: (a) implementing and maintaining the Security Measures in accordance with Appendix 2; and (b) complying with the terms of Section 7 of thisDPA.
3. No more than once per year, Customer may engage a mutually agreed upon third party to audit LionOBytes solely for the purposes of meeting its audit requirements pursuant to Article 28, Section 3(h) of the General Data Protection Regulation (“GDPR”). To request an audit, Customer must submit a detailed audit plan at least four (4) weeks in advance of the proposed audit date describing the proposed scope, duration, and start date of the audit.Audit requests must be sent to [INSERT]. The auditor must execute a written confidentiality agreement acceptable to LionOBytes before conducting the audit. The audit must be conducted during regular business hours, subject to LionOBytes’s policies, and may not unreasonably interfere with LionOBytes’s business activities. Any audits are at Customer’s expense.
Any request for LionOBytes to provide assistance with an audit is considered a separate service if such audit assistance requires the use of resources different from or in addition to those required by law. Customer shall reimburse LionOBytes for any time spent for any such audit at the rates agreed to by the parties. Before the commencement of any such audit, Customerand LionOBytes shall mutually agree upon the scope, timing, and duration of the audit in addition to the reimbursement rate for which Customer shall be responsible. All reimbursement rates shall be reasonable, taking into account the resources expended byLionOBytes.
6. Customer shall promptly notify LionOBytes with information regarding any non-compliance discovered during the course of anaudit.
1. If LionOBytes becomes aware of any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to any Customer Personal Data transmitted, stored or otherwise Processed on LionOBytes’s equipment or facilities (“Security Breach”), LionOBytes will promptly notify Customer of the Security Breach. Notifications made pursuant to this section will describe, to the extent possible, details of the Security Breach, including steps taken to mitigate the potential risks and steps LionOBytes recommends Customer take to address the SecurityBreach.
2. Customer agrees that an unsuccessful Security Breach attempt will not be subject to this Section. An unsuccessful Security Breach attempt is one that results in no unauthorized access to Customer Personal Data or to any of LionOBytes’s equipment or facilities storing Customer Personal Data, and may include, without limitation, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, or similar incidents.
3. Notification(s) of Security Breaches, if any, will be delivered to one or more of Customer’s business, technical or administrative contacts by any means LionOBytes selects, including via email. It is Customer’s sole responsibility to ensure it maintains accurate contact information on LionOBytes’s support systems at alltimes.
4. LionOBytes’s notification of or response to a Security Breach under this Section 7 will notbe construed as an acknowledgement by LionOBytes of any fault or liability with respect to the SecurityBreach.
5. LionOBytes shall implement reasonable technical and organizational Security Measures to provide a level of security appropriate to the risk in respect to the Customer Personal Data. As technical and organisational measures are subject to technological development, LionOBytes is entitled to implement alternative measures provided they do not fall short of the level of data protection set out by Data ProtectionLaw.
1. LionOBytes will enable Customer to delete Customer Data during the Term in a manner consistent with the functionality of the Services. If Customer uses the Services to deleteany Customer Data during the Term, this use will constitute an instruction to LionOBytes to delete the relevant Customer Data from LionOBytes’s systems in accordance with Data Protection Laws.
2. LionOBytes will comply with instructions from the Customer to delete certain Personal Dataas soon as reasonably practicable and within a maximum period of 30 days, unlessDataProtection Law (or, in the case the data is not subject to Data Protection Law, applicable law) requires further storage.
3. On expiry of the Agreement, Customer instructs LionOBytes to delete all Customer Data (including existing copies) from LionOBytes’s systems and discontinue processing of such Customer Data in accordance with Data Protection Law. LionOBytes will comply with this instruction as soon as reasonably practicable and within a maximum period of 30 days, unless Data Protection Law (or, in the case the data is not subject to Data Protection Law, applicable law) requires further storage. This requirement shall not apply to the extent that LionOBytes has archived Customer Data on back-up systems so long as LionOBytes securely isolates and protect such data from any further processing except to the extent required by applicable law. Without prejudice to this Section, Customer acknowledges and agrees that Customer will be responsible for exporting, before the Agreement expires, any Customer Data it wishes to retain afterwards. Notwithstanding the foregoing, the provisions of this DPA will survive the termination of this Agreement for as long as the LionOBytes retains any of the Customer PersonalData.
1. LionOBytes may, subject to this Section 9, store and process the relevant Customer Data inthe European Economic Area and the UnitedStates.
2. LionOBytes self-certified to and complies with the Privacy Shield, and LionOBytes shall maintain its self-certification to and compliance with the Privacy Shield with respect to the Processing of Personal Data that is transferred from the European Economic Area or Switzerland to the UnitedStates.
1. Both parties agree that their respective liability under this DPA shall beapportioned according to each parties’ respective responsibility for the harm (if any) caused by each respectiveparty.
2. Liability Cap Exclusions. Nothing in this Section 10 will affect the remaining terms of the Agreement relating to liability (including any specific exclusions from any limitationof liability).
1. This DPA will take effect on the date it is executed by Customer and LionOBytes at the bottom of this Agreement (the “Effective Date”) and will remain in effect until, and automatically expire upon, the deletion of all Customer Data by LionOBytes or Customeras described in thisDPA. 2. Nothing in this DPA shall confer any benefits or rights on any person or entity otherthan the parties to thisDPA. 3. Where Customer’s Affiliates are Data Controllers of the Personal Data, they mayenforce the terms of this DPA against LionOBytesdirectly. 4. This DPA may be executed in any number of counterparts, each of which whenexecuted shall constitute a duplicate original, but all the counterparts shall together constitute the oneAgreement.