These Employer Terms and Conditions (“ETC”) are made pursuant to and incorporated by reference as a part of the Employer Benefits Agreement, including the Order Form to which they attached hereto (collectively, “Agreement”), and is dated as of the last date appearing on the first Order Form (the “Effective Date”), and is made by and between Privacy Bee, LLC (“Privacy Bee”, the “Company”, “we”or “us”) and the client listed on the first Order Form (hereafter, the “Client” or “you”). You and Privacy Bee may be referred to herein together, as the “Parties”, and each may be referred to, individually, as a “Party”.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, you and Privacy Bee hereby agree as follows:
1. Definitions. For all purposes of this Agreement, the following terms shall have the meanings set forth below:
- “Confidential Information” means any information that is disclosed, provided or made accessible by, or on behalf of, one Party to the other Party in connection with this Agreement, and which is identified as “confidential” or “proprietary” or which, given the nature of the information or material, or the circumstances surrounding the disclosure or provision, reasonably should be understood to be confidential or proprietary (including any proprietary strategies, information, data, or reports used by us in performing Services), but does not include information or material that the recipient already knew or possessed, becomes public through no fault of the recipient, or was independently developed by the recipient without reference to the discloser’s confidential information.
- “Customer Data” shall mean and shall include any of Client’s Confidential Information, and any Personally Identifiable Information relating to any Participants, customers, end users or employees of the Client, its suppliers or contractors, to which the Company has or may have access in connection with the operation or administration of its Services, or in connection with the performance thereof for the Client under this Agreement.
- “Fee” or “Fees” shall mean the amount that you agree to pay Privacy Bee in compensation for Services rendered as set forth herein. Fees shall also include any additional expenses specified and agreed to in this Agreement or in any Order issued hereunder.
- “Law” means any applicable law, rule, or regulation.
- “Order” means any Order Form, including the first Order Form, to which these Terms and Conditions are attached, or any other similar order for Services issued hereunder, that is accepted and executed by the Parties hereto.
- “Participants” means the Client’s employees, as well as certain spouses, members, or subscribers, depending on the Client’s intended use of the Services, as selected in the applicable Order, and as described herein.
- “Personally Identifiable Information” or “PII” means information that, by itself, can be used to identify a specific individual. PII shall include a person’s name, address, phone number or email address.
- “Services” shall mean the consumer privacy suite of services provided by Privacy Bee for you as set forth in any Order issued pursuant to this Agreement, as more particularly described in Section 2 hereof.
- “Term” means the term of this Agreement, which begins on the Effective Date and runs through the date of the last effective Order issued hereunder, or its earlier termination.
2. Services.
2.1 Generally.
(a) Privacy Bee provides a variety of privacy services for its customers’ Participants. The Client’s receipt of the Services will include “pro-member” account access for all of the Client’s Participants, and access to certain additional business-specific technology (including employee management capabilities, ability to set vendors as trusted/distrusted, and related features). During the Term (as defined in Section 8.1), the Client may offer its eligible Participants the opportunity to enroll in one or more of the Services. To the extent requested by the Client, Privacy Bee will provide its commercially reasonable assistance with the marketing of the Services to the Client’s Participants. This may include onboarding, training, and support, over customary channels, including, but not limited to, email, phone, video demonstrations and live chat. To the extent eligible Participants accept such Service offers, Privacy Bee shall enroll such eligible Participants as Participants in accordance with Privacy Bee’s enrollment processes.
(b) Privacy Bee bases its pricing on both (i) Participant tiers (the maximum number of Participants that you may have), and (ii) the identity of persons who may be included as eligible Participants (employees only, or including spouses, or other designated persons), and each is shown on the first Order issued hereunder. The Client may not exceed the maximum number of Participants in its selected tier (but you may have as few Participants, at any given time, as you wish). The Client will not be charged differentially based on the number of actual active Participants that it has at any one given time (within the selected tier).
(c) At any time during the Term, the Client may use its account administrator interface to upgrade either its Participant tier and/or the identity of persons who are eligible Participants, and Privacy Bee will provide a quote for the increases costs which will be associated with the same. No such change shall take effect, except by the written consent of both Parties to amend the existing Order, or enter into a new Order. For the avoidance of doubt, the Client shall have no right, at any time, to downgrade any aspect of any Order (including the Participant tier or the eligible Participant pool).
(d) For the avoidance of doubt, Privacy Bee shall be providing the Services directly to Participants. Any change to any of the Services that constitutes a material reduction of benefits to Participants, shall be subject to the prior written agreement of the Parties, not to be unreasonably withheld, conditioned or delayed, except to the extent any such change is made by Privacy Bee to comply with applicable legal requirements or to avoid infringement of third-party intellectual property rights.
(d) From time to time, Privacy Bee may invite you to try certain Service features that are expressly identified as “Beta”, “Alpha”, “Pre-Release”, or similar designations, or that are otherwise expressly identified as unsupported (“Beta Services”). Beta Services may be subject to additional terms, and Privacy Bee will have no liability arising out of or resulting from any Beta Service.
2.2 Client Obligations.
(a) The Client represents and warrants that it will make the Services available to eligible Participant solely in a manner consistent with Privacy Bee’s written instructions and with the terms of this Agreement. The Client agrees that any questions/communications related to the Services or applications from any eligible Participant shall be referred to Privacy Bee’s member services and shall not be serviced by the Client. The Client shall not, in any way, characterize the Services as insurance, identity theft protection or credit repair services, or that Privacy Bee is an insurer or insurance broker.
(b) The Client represents and warrants that it will (i) obtain any eligible Participant’s affirmative consent and acceptance to receive the Services as a benefit, including agreeing to any then-current terms and conditions of Privacy Bee set forth in any Privacy Bee onboarding materials, all prior to providing Privacy Bee any information about the eligible Participant and their enrolling to receive Services, (ii) have all necessary consent(s), rights and authority to provide data and personal data (including Participant PII) to Privacy Bee for processing consistent with the Agreement and the provision of Services; and (iii) retain and keep available for examination such consents and acceptances for the term of this Agreement and for a period of at least five (5) years thereafter.
(c) The Client will reasonably inform Privacy Bee of complaints from any Participant or prospective Participant, or other problems encountered in connection with the Client’s performance of its obligations pursuant to this Agreement or in connection with Privacy Bee’s rendering of the Services to Participants.
(d) If the Client enters into a relationship with a third-party (broker, technology solution, etc.) to handle enrollment data, then the Client shall be responsible for assessing the security of the third-party and ensuring that such third-party maintains security measures in accordance with such third-party’s industry. Privacy Bee is only responsible for assessing that the method of transmission of enrollment data between the Client’s selected third-party and Privacy Bee (or its third-party administrator) is secure based on industry standards (SSL, TLS, Secure File Transfer, etc.). If the Client uses a broker and such broker is expecting commissions from Privacy Bee via a separate agreement, then the Client’s enrollment into the Services and/or delivery of such Services may be delayed until the Client’s broker has signed the necessary documentation.
3. Representations and Warranties.
3.1 Privacy Bee Representations and Warranties. Privacy Bee represents and warrant that it (i) have and will have all necessary rights and authority to enter into this Agreement and any Order, and provide Services to you, (ii) will provide all Services in a professional and workmanlike manner in accordance with industry best practices, (iii) will comply with all applicable Laws, and (iv) will provide prompt and reasonable notice to the Client of all material changes to any Service, or any Service related policy or supplemental terms of use.
3.2 Client Representations and Warranties. The Client represents and warrants that it (i) has and will have all necessary rights and authority to enter into this Agreement and any Order and to perform its obligations hereunder; and (ii) are and will be authorized to act on behalf of itself and each of its Participants (and will be liable for their acts and omissions in connection with Services), if applicable. Further, the Client will (A) be solely responsible for all use of Services pursuant to its obligations under this Agreement; (B) use the Services in compliance with its other agreements; (C) comply with all applicable Laws, and will not attempt to cause Privacy Bee to violate any such Laws; and (D) comply with, and agree to be bound by, any additional Service policies, which are provided to the Client by Privacy Bee, from time to time, with reasonable notice.
4. Fees, Retainers and Payment; Remedies for Non-Payment.
4.1 Payments Generally. By acceptance of the Services, the Client agree to pay the Fees for such Services, as detailed in the applicable Order All Fees shall be due and payable on the time basis noted in the applicable Order, unless otherwise specified in such Order, and, if no such specification is made, in either case, then on a due upon receipt basis. The Client agrees to make prompt and full payment of any Fees which are not reasonably in dispute on any due date. Unless otherwise specified, amounts owed for Services must be prepaid, in U.S. Dollars ($), by wire transfer, check, “Automatic ACH” electronic funds transfer, credit card, or other means agreed to in writing. No Fees owed to us will be pro rated if you decide to cease use of the Services or terminate this Agreement prior to the end of the Term, and the Client shall remain fully responsible for payment of the same.
4.2 Other Fees. Other fees—such as onboarding fees —may be charged, in accordance with Privacy Bee’s standard billing practices, in conformance with the Client’s selections in the applicable Order.
4.3 Late Payments and Suspension.If any amount payable by the Client is not paid when due, and is not reasonably in dispute, then, without limiting any other rights which Privacy Bee may have as a result of such late payment, the amount unpaid shall, as a finance charge, bear interest until paid at a monthly rate of one and one-half percent (1.50%), or the maximum amount permitted under law, whichever is greater, with such interest to be paid on demand together with all costs incurred by us to collect the amounts due hereunder, including but not limited to reasonable attorneys’ fees. In addition, if the Client fails to pay fees due by the applicable payment due date and the same are not the subject of a reasonable good faith dispute, then Privacy Bee may suspend its provision of the Services, in whole or in part, upon notice to the Client; provided that it will promptly restore the same, upon the resolution of any such dispute.
4.4 Taxes. Charges for Services do not include any taxes or government charges levied by or due to any duly authorized taxing authority and the Client will pay any such taxes and government charges derived from or imposed on transactions through the Services, including sales, value-added, goods and services, use, transfer, withholding, privilege, excise and other taxes and duties.
5. Confidentiality; Ownership and Use of Data.
5.1 Confidentiality. By virtue of this Agreement, each Party may have access to Confidential Information of the other Party. For purposes of this Agreement, “Confidential Information” of a Party means information of such Party, disclosed or otherwise provided by or on behalf of such party (the “Disclosing Party”) to the other Party (the “Receiving Party”) orally, electronically, in writing, or otherwise, under circumstances reasonably indicating that it is confidential or proprietary. Confidential Information includes the terms and conditions of this Agreement, data, drawings, designs, concepts, specifications, reports, analyses, regulatory filings or correspondence, prototypes, samples, trade secrets, copyrights, unregistered trade names, trademarks, trade dress or service marks, designs, drawings, proprietary computer code, proprietary methods and/or systems, know-how, customer lists, business or marketing plans, production or operating budgets, and any other information or material expressly identified by the Disclosing Party as being proprietary or confidential or that a reasonable person in the place of the Receiving Party would recognize as being proprietary or confidential information of the Disclosing Party. Notwithstanding the foregoing, the term “Confidential Information” shall not include information that (i) is or becomes generally available to the public other than as a result of an unauthorized disclosure by the Receiving Party or any of its directors, officers, managers, shareholders, members, agents or contractors (“Representatives”) or by any other person or entity owing a duty of confidentiality to the Disclosing Party with respect to such information; (ii) can be shown was already known to the Receiving Party on a non-confidential basis prior to its being disclosed by the Disclosing Party to the Receiving Party; (iii) is disclosed to the Receiving Party by a third party where such disclosure is made without violating any confidentiality obligation owed by such third party to the Disclosing Party, or (iv) is developed by the Receiving Party without reliance upon or use of any of the Confidential Information.
5.2 Ownership of Confidential Information; Restricted Use. The Receiving Party acknowledges and agrees that at all times, the Confidential Information of the Disclosing Party is and shall be the sole and exclusive property of the Disclosing Party, and that, except as expressly contemplated by this Agreement, the Receiving Party shall have no right, title or interest in, to or under any such Confidential Information. The Receiving Party shall not take any action that is inconsistent with the foregoing sentence, including (without limitation) asserting any ownership right or interest in or to any of the Confidential Information of the Disclosing Party or filing any application for patent, trademark or other intellectual property registration with respect to any of such Confidential Information. Unless otherwise expressly approved by the Disclosing Party in writing, the Receiving Party shall use the Confidential Information solely for the purposes contemplated by this Agreement.
5.3 Non-Disclosure. Unless otherwise expressly approved by the Disclosing Party in writing, the Receiving Party shall not, nor shall it cause or permit any of its Representatives to, disclose any Confidential Information to any person or entity, except to the extent reasonably necessary for the Receiving Party to exercise its rights and perform its obligations under this Agreement. The Receiving Party shall take all reasonable measures to protect the secrecy of and avoid unauthorized disclosure or use of Confidential Information, which measures shall include at a minimum the highest degree of care that the Receiving Party utilizes to protect its own Confidential Information. The Receiving Party shall promptly notify the Disclosing Party in writing of any misuse, misappropriation or unauthorized disclosure of the Disclosing Party’s Confidential Information that may come to the Receiving Party’s attention. The Receiving Party shall advise its Representatives who are provided access to the Confidential Information of the Disclosing Party of the Receiving Party’s authorized use and confidentiality obligations under this Section 5 and shall obtain such Representative’s agreement to act in accordance with the terms of this Section 5. In any event, the Receiving Party shall at all times be liable for any misuse or unauthorized disclosure by any of its Representatives of the Disclosing Party’s Confidential Information. Notwithstanding the foregoing, to the extent the Receiving Party is required to disclose any Confidential Information in order to comply with applicable law or an order of a court of competent jurisdiction, such disclosure shall not constitute a violation of this Section 5.3, provided that the Receiving Party notifies the Disclosing Party in writing as far in advance as reasonably possible of such required disclosure and only discloses the minimum amount of Confidential Information necessary to comply with such applicable law or court order.
5.4 Duration of Restrictions. The covenants and obligations of the Receiving Party set forth in this Section 5, shall last for two (2) years from the date of expiration or earlier termination of the Term, and thereafter for so long as any such Confidential Information remains protectable or legally enforceable under a related agreement or under any applicable Law, including (without limitation) applicable copyright, trade secret and patent laws.
6. Data Protection and Security.
6.1 Protection of Customer Data / PII. Each Party agrees that it will comply fully with all applicable Laws relating to all Personally Identifiable Information and data privacy with respect to any such data that Privacy Bee receives or has access to under this Agreement or in connection with the performance of any Services for the Client, and to use its best efforts to safeguard that same against unauthorized, unlawful or accidental access, loss, destruction, damage, disclosure, transfer or other improper use. Privacy Bee will protect all Customer Data (including PII) and will not use, disclose, or transfer across borders such Customer Data (and PII), except as necessary to perform under this Agreement, or as authorized by the data subject or in accordance with applicable law. In addition, Privacy Bee will timely process all duly received requests for deletion of any Participant’s data that it receives, in accordance with applicable Law. To the extent that the Client receives PII related to the performance of this Agreement, the Client will use its best efforts in accordance with industry best practices to protect the privacy and legal rights of the Client’s Participants, personnel, clients, customers and contractors, as the case may be.
6.2 Security Procedures; Breach of Security. Privacy Bee shall maintain a formal Emergency Management Plan for Data Security Incidents (the “Plan”) which shall include, at a minimum, the actions that shall be taken in response to a data security incident or suspected incident and the specific responsibilities of personnel to implement such actions. The Plan shall include a clear, documented escalation procedure and the process for notifying Client of a data security incident. Specifically, Privacy Bee shall notify Client of a data security incident that involves the unauthorized acquisition, access, use, or disclosure of PII (a “Breach of Security”) promptly, and without unreasonable delay. Such notification shall include a description of the information affected, the identification of all Client-related individuals believed to have been affected, and all other information reasonably necessary to provide notice to affected entities or individuals in accordance with state data breach notification requirements. Privacy Bee agrees to keep the Client informed of the progress and actions taken in connection with Privacy Bee’s investigation of a Breach of Security. Privacy Bee will take all actions reasonably necessary or appropriate to remedy a Breach of Security, including conducting an investigation into the cause of such Breach of Security and notifying affected persons and, to the extent required by applicable law, government agencies accordingly.
6.3 Data Use. The Client agrees that data derived by Privacy Bee from its performance of the Services hereunder may be used for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, and creation of statistical rules; provided that such analysis shall be performed solely by Privacy Bee and such analysis shall be performed only in conjunction with data derived by it from its performance of services for other customers, input by other Privacy Bee customers or obtained from third-party data sources. The results of such analysis (“De-identified Data”) may be used by Privacy Bee for any lawful internal purpose, including determining future hardware and communications needs for Privacy Bee systems and determining trends associated with warehouse use, operation, and efficacy, but shall not be sold to any third-party or used for any other commercial purpose. Notwithstanding anything contained in this Agreement to the contrary, De-identified Data shall not contain (i) any Confidential Information of the Client, its affiliates and/or any Participant, (ii) any information that identifies or can be reasonably used to identify the Client, its affiliates, suppliers or vendors, and/or any Participant or other individual person, or (iii) any information that identifies or can be reasonably used to identify any activities or behaviors of the Client, its affiliates and/or any Participant. Further, such De-identified Data shall not be subject to or susceptible to any re-identification, and, upon request, Privacy Bee shall certify the same to the Client.
7. Intellectual Property; Proprietary Rights.
(a) Each Party owns and retains all right, title and interest in and to all of its intellectual property, and no rights are granted to either Party in the other’s intellectual property, except as expressly set forth in this Agreement.
(b) For Privacy Bee, this includes all aspects of its technology and Services, including any software or applications developed, created, or licensed by us (or on Privacy Bee’s behalf). The Client grants to Privacy Bee a worldwide, perpetual, irrevocable, royalty-free right to use and incorporate into the Services any suggestion, input, enhancement request, recommendation, correction, specification, or other feedback provided by the Client or by your clients relating to the operation of the Services.
(c) All right, title, and interest in Customer Data will remain the property of the Client. Privacy Bee has no intellectual property rights or other claim to Customer Data that is hosted, stored, or transferred to and from the Company. Privacy Bee will cooperate with the Client to protect the Client’s intellectual property rights and Customer Data. Privacy Bee will promptly notify the Client if Privacy Bee becomes aware of any potential infringement of those rights in accordance with the provisions of this Agreement.
8. Term; Termination.
8.1 Applicable Term. This Agreement will be effective from the Effective Date and continue until its expiration, as determined by which Services are being provided, as detailed on any Order Form issued hereunder, or its earlier termination, as permitted hereunder (the “Term”). Except as otherwise specified on the any Order Form issued hereunder, this Agreement shall automatically renew for additional periods equal to the expiring Term, unless either Party gives notice of non-renewal at least sixty (60) days before the end of the expiring Term.
8.2 Termination; Effect.
(a) Either Party may terminate this Agreement in the event of a material breach of the terms of this Agreement by the other Party; provided that the non-breaching Party provides at least thirty (30) days’ notice and an opportunity to cure to the breaching Party.
(b) In the event payment has not been received on or before the applicable due date, and is not the subject of any reasonable dispute between the Parties, Privacy Bee may suspend its provision of Services or access to the Services until such payment is received. In the event that payment is not received within fifteen (15) days after the applicable invoice due date, you will be invoiced for the remainder of the Term, which amount shall be immediately due and payable, and Privacy Bee (at its sole option) may terminate this Agreement, without prejudice to its rights to receive payment on such invoiced balance.
(c) Either Party may terminate this Agreement, without liability to the other, in the event of judicial, regulatory or legislative change rendering performance by such Party of this Agreement impossible or illegal, provided that the Party seeking to exercise such termination right shall provide the other with at least thirty (30) days’ prior written notice or, if such judicial, regulatory or legislative change necessitates such Party to terminate this Agreement upon less than thirty (30) days’ prior written notice, such Party shall give as much notice of termination as is reasonably possible in the circumstances.
(d) Either Party may terminate this Agreement immediately upon the insolvency, bankruptcy, liquidation or dissolution of the other Party.
(e) Notwithstanding termination of this Agreement, any provisions of this Agreement that, by their nature, are intended to survive, shall so survive any expiration or termination hereof. In event of any duly affected termination of this Agreement by Privacy Bee pursuant to Section 8.2(a), (b), or (d), all unpaid fees for the remainder of the then existing Term shall become immediately due and payable by the Client. For the avoidance of doubt, no pre-paid fees shall be subject to any return or repayment to the Client upon any termination of this Agreement, except in the event that this Agreement is duly terminated by the Client pursuant to Section 8.2(a), (c) or (d).
9. Disclaimers and Limitations of Liability.
(a) Privacy Bee does not guarantee, and shall have no liability for, any Services downtime, including, without limitation, any downtime (i) caused by failures of or previously scheduled maintenance to Privacy Bee’s equipment or servers, (ii) caused by outages to any public Internet backbones, networks or servers; (iii) caused by any failures of the Client’s equipment, systems or local access services; or (iv) relating to events beyond Privacy Bee’s control, such as strikes, riots, insurrections, fires, floods, explosions, war, governmental actions, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Privacy Bee or the Client’s servers are located or co-located.
(b) EXCEPT AS EXPRESSLY SET FORTH HEREIN, PRIVACY BEE EXPRESSLY DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES CONCERNING THE SERVICES TO BE RENDERED HEREUNDER OR THE RESULTS TO BE OBTAINED FROM THE SERVICES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, PARTICULARLY INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR BREACHES RELATING TO WILLFUL MISCONDUCT OR BREACHES OF OBLIGATIONS OF CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY, OR ANY OF THEIR RESPECTIVE SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES OR REPRESENTATIVES BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, DAMAGES RESULTING FROM DELAY, LOSS OF PROFITS, LOST BUSINESS OPPORTUNITY, LOSS OF CONTENT, INTERRUPTION OF BUSINESS OR LOSS OF GOODWILL, WHICH MAY ARISE IN CONNECTION WITH OR PERTAINING TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE POSSIBLITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING UNDER ANY THEORY OF LAW (INCLUDING TORT OR OTHER THEORY). EXCEPT FOR BREACHES RELATING TO WILLFUL MISCONDUCT, BREACHES OF OBLIGATIONS OF CONFIDENTIALITY, INDEMNIFICATION OBLIGATIONS, OR CONTRACTUAL PAYMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S CUMULATIVE LIABILITY TO THE OTHER PARTY FOR ANY CLAIM ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNTS PAID PURSUANT TO THE APPLICABLE SERVICES FROM WHICH THE CLAIM AROSE. THE PARTIES AGREE THAT THIS LIMITATION OF LIABILITY SHALL SURVIVE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF AN EXCLUSIVE REMEDY.
10. Indemnification.
(a) Each Party (in such capacity, the “Indemnifying Party”) will defend, indemnify and hold harmless the other Party and its officers, directors, employees, and agents (each, an “Indemnified Party”) from all third-party claims or liabilities (including reasonable outside attorneys’ fees and disbursements) to the extent arising out of or related to the Indemnifying Party’s (i) gross negligence or willful misconduct, (ii) violation of Laws, or (iii) infringement or misappropriation of a third party’s U.S. patent, trademark, trade secret or copyright in connection with (A) with respect to Privacy Bee, the software and other technology owned by Privacy Bee that we use to provide the Services hereunder, and (B) with respect to the Client, the software, creative, technology, data, or other materials that you provide or Privacy Bee in connection with your receipt of the Services (“Company Materials”) (the indemnification obligation of each Party described in this clause (iii), the “IP Infringement Obligation”). The previous sentence states the sole liability of the Indemnifying Party, and the sole remedy of the Indemnified Party, with respect to any third-party claim arising out of the Indemnifying Party’s breach of this Agreement or intellectual property infringement or misappropriation.
(b) The Indemnified Party must (i) promptly notify the Indemnifying Party in writing of the any third-party claim (provided that failure to promptly notify will not relieve the Indemnifying Party of its indemnification obligations, except to the extent it has been damaged by the failure), (ii) reasonably cooperate with the Indemnifying Party in the defense of the matter, and (iii) give the Indemnifying Party primary control of the defense of the matter and negotiations for its settlement. The Indemnified Party may, at its expense, join in the defense with counsel of its choice. The Indemnifying Party may enter into a settlement only if it (x) involves only the payment of money damages by the Indemnifying Party, and (y) includes a complete release of liability in favor of the Indemnified Party; any other settlement will be subject to written consent of the Indemnified Party (not to be unreasonably withheld or delayed).
(c) Privacy Bee’s IP Infringement Obligation will not apply to claims to the extent arising from (i) the Client’s use of the Services in violation of this Agreement; (ii) the Company Materials’ infringement or misappropriation of a third party’s U.S. patent, trademark, trade secret or copyright; or (iii) the combination, operation or use of the Service with any product or service not provided by Privacy Bee. The Client’s IP Infringement Obligation will not apply to claims to the extent arising from (I) Privacy Bee’s provision of the Services in violation of this Agreement; or (II) the Services’ infringement or misappropriation of a third party’s U.S. patent, trademark, trade secret or copyright. If a Service becomes, or in Privacy Bee’s reasonable opinion is likely to become, the subject of an intellectual property infringement claim, then Privacy Bee will promptly notify the Client and, at its sole option and expense, may either: (x) procure the right to continue providing the Services as contemplated by this Agreement; (y) modify the Services to render it non‑infringing; or (z) replace the Services with a functionally equivalent, non‑infringing service. If none of the foregoing options is commercially practicable, then each Party will have the right to terminate this Agreement with respect to the infringing Service.
11. Insurance.
(a) At all relevant times during the performance of Services pursuant to the Agreement, Privacy Bee shall have bound and maintained the following minimum insurance coverages:
- Commercial General Liability – [$2,000,000] per occurrence.
- Umbrella Liability – [$5,000,000] in the aggregate.
- Errors & Omissions – [$5,000,000] in the aggregate.
- Cyber Liability – [$5,000,000] in the aggregate.
(b) Upon reasonable request, Privacy Bee will provide to the Client any customary proof of continuing insurance with respect to each of the foregoing.
(c) For the avoidance of doubt, nothing contained in this Section 11 shall, in any way, be interpreted as impacting any limitations of liability or indemnification provisions contained in the Agreement.
12. Dispute Resolution.
(a) EACH PARTY HEREBY EXPRESSLY, KNOWINGLY AND IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE RELATING TO OR ARISING UNDER THIS AGREEMENT.
(b) To ensure the timely and economical resolution of any disputes that may arise in connection with this Agreement, the Parties agree that they will work together for at least ten (10) business days, in good faith, to resolve any disputes which may arise between them in connection herewith, and, if agreed by the Parties, will engage in guided mediation. In the event that any such dispute cannot be reasonably be so resolved, then any and all disputes, claims, or causes of action arising from or relating to the enforcement, breach, performance, negotiation, execution, or interpretation of this Agreement shall be resolved, to the fullest extent permitted by law, by final, binding and confidential arbitration, by a single arbitrator conducted by JAMS, under its then applicable rules of commercial arbitration.
13. Miscellaneous.
(a) Governing Law; Venue. This Agreement is governed by the laws of the State of Georgia, excluding its conflicts of law rules. The jurisdiction and venue for all disputes hereunder WILL BE the state and federal courts in the County OF FULTON and State of GEORGIA, AND THE PARTIES HEREBY CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.
(b) Publicity; Press Releases. Each Party grants the other Party the limited right to use other Party’s name and logo on customer lists and informational or promotional materials; provided, however, that the same shall be removed or modified promptly upon any reasonable request for the same, or promptly following any expiration or termination hereof. Neither Party will issue any public communications concerning this relationship without the prior written consent of the other Party.
(c) Notices. All notices under this Agreement must be in writing (which term shall include notices to a Party’s principal business address, and by email) and will be deemed given when delivered. All notices to Privacy Bee shall be sent to [email protected], and all notices to the Client shall be duly delivered to it at the address and / or email address that has been provided to Privacy Bee in on first Order Form, or subsequently changed by notice duly given.
(d) Assignment. Neither Party may assign or transfer any part of this Agreement without the written consent of the other Party, which shall not be unreasonably withheld, conditioned or delayed; except that this Agreement may be assigned without consent, but by notice (x) to a person or entity who acquires, by sale, merger or otherwise, all or substantially all of the assigning Party’s assets, equity ownership or business, or (y) to a Party’s affiliate, provided that any such affiliate is objectively capable of fulfilling the assigning Party’s obligations hereunder. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns. Any attempted assignment in violation of this provision will be void and of no effect.
(e) Entire Agreement. This Agreement is the Parties’ entire agreement relating to its subject matter contained herein and supersedes any prior or contemporaneous agreements related thereto, including any exhibits for use of any Services executed prior to the Effective Date of this Agreement.
(f) Waiver and Severability. Either Party’s waiver of any breach of any provision of this Agreement does not waive any other breach, and shall not be construed as a waiver of any future breach. Either Party’s failure to insist on strict performance of any covenant or obligation in this Agreement will not be a waiver of such Party’s right to demand strict performance in the future. If any provision of the Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose, and, further, any such provision may be severed from this Agreement, by any tribunal of competent jurisdiction, in which case, the remainder of this Agreement shall remain in full force and effect.
(g) Subcontractors. Each Party shall be permitted to use subcontractors in connection with its performance under this Agreement, but, in any such event, such Party shall remain fully liable for any such subcontractors’ acts and omissions.
(h) Relationship of the Parties. The Parties hereto are independent contractors, and this Agreement does not create an agency, partnership or joint venture, of any kind.
(i) Counterparts; Electronic Execution. The Parties may execute this Agreement in one or more counterparts and my any conventionally accepted form of electronic transmission, including facsimile, PDF and other electronic copies, which, when taken together, shall constitute one instrument.
[End of Terms and Conditions]
Last Modified: 2021-09-23
