BY CLICKING ON THE “ACCEPT” OR “OK” BUTTON, OR EXECUTING AN SOW (AS DEFINED BELOW), YOU AND ANY ENTITY THAT YOU REPRESENT (“CUSTOMER”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THESE PARADIGM GENERAL TERMS OF SERVICE (“AGREEMENT”). CUSTOMER’S CONTINUED USE OF OR ACCESS TO ANY SERVICES (AS DEFINED BELOW) PROVIDED BY PARADIGM STRATEGY INC. (“PARADIGM”) SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF CUSTOMER DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT THEN CUSTOMER SHOULD NOT UTILIZE PARADIGM’S SERVICES. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. IF YOU ARE EXECUTING THIS AGREEMENT ON BEHALF OF AN ORGANIZATION, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO DO SO.
Subject to the terms and conditions of this Agreement, Customer may request to receive Paradigm’s services by either clicking the “Accept” or “Agree” or “Confirm” or “Ok” button on the Paradigm website or signing one or more Statements of Work that specifically reference this Agreement, which the Parties hereto may mutually execute from time to time (each, an “SOW”), for Customer (the “Services”).
2. CUSTOMER REPRESENTATIONS AND WARRANTIES
Customer represents and warrants that Customer (i) has the requisite rights and licenses to provide the data, information, or content it provides to Paradigm in order for Paradigm to provide the Services, (ii) it will immediately notify Paradigm if there is any complaint or demand that would impact Paradigm’s ability to perform the Services, and (iii) it will comply with this Agreement and all applicable laws with respect to its use of the Services.
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Without limiting the foregoing, the Services (and all trade secrets, processes, techniques, materials, strategies, and recommendations provided by Paradigm to Customer pursuant to Paradigm’s provision of the Services, and all improvements and derivatives thereof)are Paradigm’s Confidential Information, and the Content provided by Customer is Customer’s Confidential Information. The Receiving Party acknowledges and agrees that the Disclosing Party’s Confidential Information is of a unique character and value, the unauthorized disclosure of which may cause irreparable harm to the Disclosing Party, for which monetary damages may be insufficient.
3.2 The Receiving Party agrees: (i) except as expressly provided herein, not to disclose to any third party any such Confidential Information, (ii) not to use any such Confidential Information for any purpose except to the extent necessary to, in the case of Paradigm, perform the Services, or, in the case of Customer, to receive and internally use the results of the Services, as applicable, (iii) to give access to such Confidential Information solely to those employees and contractors with a need to have access thereto for purposes of this Agreement (and who are bound by written confidentiality obligations as protective of the Disclosing Party’s Confidential Information as this Agreement), and (iv) to take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the party takes with its own proprietary information of a similar nature, but in no event will a party apply less than reasonable precautions to protect such Confidential Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can demonstrate by written evidence (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was rightfully in its possession or known by it without restriction, prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing Confidential Information pursuant to any judicial or governmental order, provided that the Receiving Party (to the extent legally permissible) gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Except as expressly set forth herein, Paradigm alone (and its licensors, where applicable) reserves and will retain all right, title and interest (including all intellectual property rights) in and to the Services and related software any trademarks, service marks, or tradenames embedded in the Services. Any suggestions, enhancement requests, feedback, and/or recommendations provided by Customer or any of its end-users specifically relating to the Services (“Feedback”), are hereby assigned to Paradigm. Customer agrees to assign all right, title, and interest in, and Paradigm is free to use Customer’s Feedback without restriction and without any notice, attribution or compensation to Customer. Paradigm is not obligated to use your Feedback. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. Except as expressly set forth herein, this Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services or related software, or any intellectual property rights.
4.2 Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all content and data provided by or on behalf of Customer and/or its end-users (“Content”) and the intellectual property rights with respect to that Content. If Paradigm receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party or any applicable law or regulation (a “Claim”), Paradigm may (but is not required to) suspend activity hereunder with respect to that Content. Customer, on behalf of itself and its suppliers and licensors (as applicable) hereby grants Paradigm a worldwide, non-transferable, non-sublicensable, nonexclusive license to view, copy, reformat, distribute, display and analyze the Content (a) in connection with Paradigm’s performance of the Services; (b) to further develop and improve Services and other products or services of Paradigm; (c) to monitor the performance of our Services; (d) to aggregate, anonymize, or de-identify the Content and then use, share, and commercialize the aggregated, anonymized, or de‑identified output for any business purpose as determined by Paradigm in its sole discretion. Paradigm is permitted to disclose that Customer is one of its customers in the ordinary course of its sales cycle. Subject to Customer’s prior written consent, Paradigm is permitted to place Customer’s name and logo on its website and marketing materials for this purpose.
5. PAYMENT OF FEES
5.1 Customer shall pay all applicable fees (“Fees”) without any right of set-off or deduction. All Fees paid hereunder (including any prepaid amounts) are non-refundable and non-cancellable for any reason.
5.2 Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding taxes based on Paradigm’s net income) unless Customer has provided Paradigm with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Paradigm on account thereof.
6. TERM AND TERMINATION
6.1 Unless earlier terminated in accordance with this Section 6, this Agreement shall be effective from the date of Customer’s acceptance of this Agreement until the expiration or termination of all Services hereunder (the “Term”).
6.2 Either party hereto may terminate this Agreement upon thirty (30) calendar days’ prior written notice in the event of any material breach of this Agreement by the other party hereto (including, without limitation, by Paradigm in the event of any breach by Customer of Sections 2.1, 3 and/or failure to pay any Fees when due hereunder) that is not cured during such notice period. In the event this Agreement or an applicable SOW is terminated by Paradigm pursuant to this Section 6.2 Customer will pay Paradigm for all services performed by Paradigm through the effective date of termination. In the event that Customer terminates this Agreement pursuant to this Section 6.2, Paradigm shall refund to Customer a pro-rated portion of any pre-paid Fees for Services not performed as of the effective date of termination.
6.3 Either party may terminate this Agreement, with written notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings (provided such proceedings are not dismissed within one hundred twenty (120) days of such institution), (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business without a successor.
6.4 Customer’s access to the Services, and any licenses granted hereunder to Customer, shall terminate upon any termination of this Agreement. Subject to the foregoing, all terms which by their nature are intended to survive termination of this Agreement will survive any termination of this Agreement, including without limitation the following Sections: 2.2, 2.3, 3 through 6, 9 through 14, and any accrued rights to payment.
7. GENERAL WARRANTIES
Each party represents and warrants to the other party that (a) it has the legal right and power to enter into this Agreement, (b) the performance of its obligations hereunder will not violate or conflict with any agreements, contracts or other arrangements to which it is a party, and (c) the execution of this Agreement and the performance by it of the transactions contemplated hereby have been duly authorized by all necessary corporate action and any other consents required to be obtained by it have been obtained.
8. WARRANTY DISCLAIMER
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES, DOCUMENTATION, AND ANYTHING ELSE PROVIDED BY PARADIGM IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITIES FOR SELECTION OF THE SERVICES TO ACHIEVE CUSTOMER’S INTENDED RESULTS, AND FOR THE USE OF, AND RESULTS OBTAINED FROM, THE SERVICES. PARADIGM HEREBY DISCLAIMS ANY AND ALL ADDITIONAL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. PARADIGM SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. PARADIGM DOES NOT WARRANT THAT THE SERVICES, DATA PROVIDED, AND/OR ANYTHING ELSE PROVIDED IN CONNECTION WITH THIS AGREEMENT WILL BE ALWAYS AVAILABLE, ERROR-FREE OR THAT THE SERVICES WILL WORK WITHOUT INTERRUPTIONS. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. ADDITIONALLY, PARADIGM DISCLAIMS ANY WARRANTY, IMPLIED OR EXPRESS, THAT: (I) ITS PROVISION OF THE SERVICES PURSUANT TO THE AGREEMENT OR ANY OUTPUT OF SERVICES OR ADVICE, OPINIONS, OR SUGGESTIONS FROM PARADIGM OR ANY OF ITS REPRESENTATIVES MAY BE USED FOR EMPLOYMENT-RELATED DECISIONS BY CUSTOMER IN ANY GIVEN JURISDICTION; OR (II) ANY CUSTOMER CONTENT INPUT BY CUSTOMER AND HOSTED IN SERVICES COMPLIES WITH ANY PARTICULAR JURISDICTION’S APPLICABLE LAW. CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR RESULTS OBTAINED FROM THE USE OF THE SERVICES AND THE DOCUMENTATION BY CUSTOMER, AND FOR CONCLUSIONS DRAWN FROM AND ACTIONS TAKEN ON RELIANCE OF CUSTOMER’S USE OF THE SERVICES OR ADVICE, OPINIONS, OR SUGGESTIONS PROVIDED BY PARADIGM OR ANY OF ITS REPRESENTATIVES.
9. LIMITATION OF LIABILITY
9.1 IN NO EVENT WILL PARADIGM OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES, OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, ANY DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
9.2 THE TOTAL LIABILITY OF EACH PARTY AND ITS LICENSORS, WITH RESPECT TO THIS AGREEMENT, AND/OR ANY SERVICES PROVIDED HEREUNDER, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, $100. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. EXCEPT AS STATED IN THIS SECTION, ALL CLAIMS MUST BE MADE WITHIN THE PERIOD SPECIFIED BY APPLICABLE LAW. IF THE LAW ALLOWS THE PARTIES TO SPECIFY A SHORTER PERIOD FOR BRINGING CLAIMS, OR THE LAW DOES NOT PROVIDE A TIME AT ALL, THEN CLAIMS MUST BE MADE WITHIN 12 MONTHS AFTER THE EVENT(S) GIVING RISE TO THE CLAIM OCCURS.
10.1 Customer hereby agrees to defend, indemnify and hold Paradigm, its Affiliates, and its and their subcontractors, licensors, officers, directors, agents, employees, representatives, successors, and assigns, harmless against any damages, losses, liabilities, awards, penalties, obligations, judgments, settlements, costs, and expenses (including without limitation costs and attorneys’ fees), in each case, that are paid or payable to un-Affiliated third parties in connection with any third party claim, demand, allegation, suit, proceeding, investigation, or cause of action, relating to or arising out of, in whole or in part (i) any alleged or actual infringement, violation or misappropriation of any intellectual property or proprietary right(s), any Content (as defined below), or any of Customer’s use or receipt of the foregoing, (ii) Customer’s use of the Services, (iii) Customer’s violation of this Agreement, (iv) Customer’s gross negligence or intentional misconduct, and/or (v) violation of applicable laws, including without limitation employment, labor, and/or discrimination law(s) and/or regulation(s) by Customer and/or its Affiliates.
10.2 Paradigm hereby agrees to defend, indemnify and hold Customer harmless against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees), in each case, that are paid or payable to un-Affiliated third parties as a result of any third party claim or action that alleges the infringement, violation or misappropriation of any intellectual property or proprietary right(s) of any third party by the Services (excluding all Content); provided that Paradigm is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and sole control over the defense and/or settlement thereof. The obligations in Section 10.1 do not apply with respect to portions or components of the Services provided by Paradigm (i) not created by or on behalf of Paradigm, (ii) resulting in whole or in part in accordance from Customer specifications, (iii) that are modified after delivery by Paradigm, (iv) combined with other products, processes or materials where the alleged infringement arises out of such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement and all related documentation
11. U.S. GOVERNMENT MATTERS
Notwithstanding anything to the contrary, Customer may not provide to any person or export or re-export or allow the export or re-export of the Platform Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Platform Services is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Paradigm are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Customer may not assign or otherwise transfer this Agreement without Paradigm’s prior written consent, which may be withheld in its sole and absolute discretion. Any other purported assignment shall be void. Both parties agree that this Agreement (including all Addenda hereto, and all SOWs hereunder) and, as applicable, the Platform Services Terms, Professional Services Terms, and Data Processing Agreement, are the complete and exclusive statement of the mutual understanding of the parties hereto, and supersedes and cancels all previous written and oral agreements, communications and other understandings between the parties hereto relating to the subject matter of this Agreement, and that all waivers, amendments and modifications must be in a writing signed or otherwise agreed to by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect whatsoever. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Without limiting the foregoing, Paradigm may use any Customer contact information provided during account signup for providing notices under this Agreement. Notices may also be posted directly on Paradigm’s website(s) or platforms. Either party may change its address for notices by giving notice to the other party in conformity with this Section. Paradigm will not be liable for any loss resulting from a cause over which it does not have reasonable control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement.
13. ADDITIONAL TERMS
13.1 Customer agrees that, in addition to the terms in this Agreement, the Services are subject to the additional terms in the Platform Terms, Professional Services Terms, and Data Processing Agreement, as applicable (“Additional Terms”) which are hereby incorporated by reference herein. In the event of a conflict between this Agreement and the Additional Terms, the Additional Terms shall control with respect to the specific subject matter in the relevant Additional Terms.
13.2 If the Parties enter into an SOW, each SOW is expressly incorporated into this Agreement by reference. In the event of any conflict between the terms and conditions of an applicable SOW and this Agreement or the Additional Terms, this Agreement and the Additional Terms shall take precedence.
14. CHANGES TO OUR TERMS
Paradigm may make changes to this Agreement and the Additional Terms in its sole discretion. Such changes may include modification or termination of the applicable Services. Paradigm may give you notice of a change if the change is material and will negatively impact you by sending an email to the email address associated with your account, by including it on your invoice if you receive invoices for the Services, by posting it on our websites or platforms, or by any other reasonable method. You shall be deemed to have accepted any changes made by Paradigm if you continue to use our Services after such changes are effective and no additional action or agreement shall be required.