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THESE SCRATCHPAD TERMS OF SERVICE ("TERMS") GOVERN THE ACCESS TO AND/OR USE OF THE SCRATCHPAD CLOUD-BASED SALES PERFORMANCE MANAGEMENT SERVICE (THE "SERVICE"), AND ARE PART OF A LEGAL CONTRACT BETWEEN SCRATCHPAD, INC. (“SCRATCHPAD”, "WE" OR "US") AND PERSONS OR ENTITIES (“CUSTOMER” OR "YOU") SEEKING TO ACCESS AND/OR USE THE SERVICE. THE TERMS, TOGETHER WITH ANY APPLICABLE ORDER FORM, AS WELL AS ADDITIONAL TERMS AND CONDITIONS AND/OR POLICIES REFERENCED AND INCORPORATED HEREIN, PROVIDE ALL OF THE TERMS AND CONDITIONS INCLUDED IN A LEGALLY BINDING CONTRACT BETWEEN YOU AND SCRATCHPAD ("AGREEMENT"), WHICH BECOMES EFFECTIVE UPON YOUR YOUR FIRST SIGN-IN TO THE SERVICE. IF YOU ACCESS OR USE THE SERVICE ON BEHALF OF AN ENTITY, YOU HEREBY REPRESENT AND WARRANT TO SCRATCHPAD THAT YOU HAVE THE ACTUAL AUTHORITY TO BIND SUCH ENTITY TO THE AGREEMENT. WE RESERVE THE RIGHT TO MODIFY THESE TERMS OR THE SERVICE AT ANY TIME, WITH SUCH CHANGES BECOMING EFFECTIVE WHEN WE POST THE MODIFIED TERMS OR NOTICE OF SUCH MODIFICATIONS TO OUR WEBSITE OR TO THE SERVICE. YOUR USE OF THE SERVICES FOLLOWING ANY SUCH MODIFICATION(S) SHALL BE DEEMED ACCEPTANCE OF SUCH MODIFICATIONS.
IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS IN THE AGREEMENT, YOU SHOULD NOT ACCESS OR USE THE SERVICE, BECAUSE BY ACCESSING OR USING THE SERVICE, YOU IRREVOCABLY AGREE TO ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT. NOTWITHSTANDING THE FOREGOING, ANY WRITTEN AGREEMENT CURRENTLY IN EFFECT BETWEEN SCRATCHPAD AND YOU, OR AN ENTITY ON WHOSE BEHALF YOU ARE ACTING, THE TERMS OF WHICH ADDRESS YOUR USE OF THE SERVICE, SHALL GOVERN YOUR USE OF THE SERVICE IN LIEU OF THIS AGREEMENT.
1.1
During the Term and subject to the terms and conditions of this Agreement, Scratchpad will use commercially reasonable efforts to provide Customer and its Affiliates (defined below) access to the features and functions of the Service applicable to the subscription level purchased by Customer. “Affiliate” for purposes of this Agreement means an entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity, and “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. For Customers who have purchased a Subscription via an Order Form, the total number of Customer or Affiliates employees or contractors authorized to create accounts and use the Service (each, an “Authorized User”) for each purchased Subscription is set forth under the term “Number of Seats” on the Order Form. For “pay as you go” Customers, the number of Authorized Users shall be as designated by Customer from time to time.
1.2
For Customers who have purchased a Subscription via an Order Form, the individual identified as “Customer Designated Admin” on the Order Form has been authorized by Customer to act as its admin user in connection with the Service. For “pay as you go” Customers, the individual initially creating the account (i.e., signing into the Service) or another person, as designated by such individual, shall be the Customer Designated Admin for the account. All Authorized User accounts shall be under the control of the Customer (via the Customer Designated Admin), who may exercise all administrative functions in respect to the Authorized User account, up to and including assignment or removal of an individual as an Authorized User. Where Customer has purchased a Subscription via an Order Form, Customer shall be required to pay additional fees for Service functionality or other services not specified in the Order Form or to exceed the number of Seats set out on the Order Form, in each case, at the rate designated on the Order Form or, if no such rate is designated on the Order Form, at Scratchpad’s then current applicable rate. Each Authorized User account shall be for a designated individual, and Customer shall not permit the shared use of Authorized User login information or accounts by multiple individuals. Customer shall remain responsible for the compliance of all Authorized Users with the terms and conditions of this Agreement.
1.3
Subject to the terms hereof, Scratchpad will provide Customer with reasonable technical support for the Service in accordance with Scratchpad’s standard practice. Access to technical support shall be via Scratchpad’s help portal, currently located at https://help.scratchpad.com/en/.
2.1
Customer will not, directly or indirectly, nor permit any Authorized User to: (a) make the Service available to, or use the Service for the benefit of, anyone other than Customer, its Affiliates, and Authorized Users; (b) sell, resell, license, sublicense, distribute, rent, or lease any part of the Service, or include the Service in a service bureau or outsourcing offering; (c) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) use the Service to transmit code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, or Trojan horses; (e) interfere with or disrupt the integrity or performance of the Service or any third-party data contained therein; (f) attempt to gain unauthorized access the Service or related systems or networks; (g) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit; (h) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or any software, documentation, or data related to the Service; (i) copy, modify, translate, or create derivative works based on the Service or any related software; (j) access any part of the Service in order to build a competitive product or service; or (k) remove any proprietary notices or labels related to the Service or any software related thereto. Customer represents and warrants that Customer is not entering into this Agreement behalf of the U.S. Government or any agency thereof including, without limitation the U.S. Department of Defense. Customer will not submit any patient, medical, or other protected health information or any other special or sensitive categories of data as set forth under any applicable data protection laws.
2.2
Customer agrees that it will take all reasonable actions to ensure that all Authorized Users use the Service only in compliance with this Agreement and with Scratchpad’s Privacy Policy then in effect and all applicable laws and regulations. Although Scratchpad has no obligation to monitor each Authorized User’s use of the Service, Scratchpad may do so and may prohibit any use of the Service it believes may be (or is alleged to be) in violation of the foregoing. Customer agrees that the termination of an Authorized User’s access to the Service shall not constitute a breach of this Agreement provided that Scratchpad terminated such access as a result of any alleged or other breach of the terms of this Agreement, the Privacy Policy or applicable rules and regulations by such Authorized User.
2.3
For clarity, the Service excludes all Third-Party Products. “Third-Party Product” means online, web-based applications and/or offline software products that are provided by third parties but may be configured to interoperate with the Service, including but not limited to those provided by salesforce.com, inc. and/or those listed on the AppExchange, as well as any modems, hardware, servers, or other equipment provided by third parties and used by Customer, its Affiliates, and Authorized Users to access and/or use the Service. Customer, its Affiliates’, and Authorized Users’ use of Third-Party Products is governed entirely by the terms of Customer’s or its Affiliates’ or Authorized User’s agreement with the relevant third party. Nothing in this Agreement creates any rights or obligations on Scratchpad’s part with respect to such Third-Party Products nor should this Agreement be construed as creating any rights or obligations on the part of any third party providing Third-Party Products with respect to the Service.
3.1
Scratchpad shall own and retain all right, title and interest in and to (a) the Service and all related software, improvements, enhancements, or modifications thereto, (b) any software, applications, inventions, or other technology developed in connection with any onboarding, training or implementation services or ongoing support services related to the Service (“Related Services”), and (c) all intellectual property rights related to any of the foregoing. Other than the limited right to access and use the Service as set forth herein, no rights or licenses are granted by Scratchpad to Customer and Customer shall obtain no rights or interest in or to the Service or to any services related thereto or to any underlying technology or intellectual property thereof by virtue of this Agreement. Customer, Customer’s Affiliates, and their respective agents, may volunteer feedback to Scratchpad and/or its Affiliates, about the Service and/or the Related Services (“Feedback”). Scratchpad and its Affiliates shall be irrevocably entitled to use that Feedback, for any purpose and without any duty to account. provided that, in doing so, they may not breach their obligations of confidentiality under Section 4 (Confidentiality) of this Agreement.
3.2
In using the Service, Customer, its Affiliate(s), and Authorized Users may input certain data related to their customers and sales process (“Customer Data”). Customer may also provide information that identifies its Authorized Users as part of their use of the Service (“Account Information”). Customer shall own all right, title, and interest in and to the Customer Data and any Account Information input into the Service.
3.3
Customer hereby grants to Scratchpad a limited, royalty-free, worldwide, fully paid-up license to process the Customer Data and Account Information in order to provide the Service and in accordance with this Agreement and the Scratchpad Privacy Policy.
3.4
Customer represents and warrants, on behalf of each of its Affiliates and each Authorized User and itself, that it owns or has the right to share all Customer Data and Account Information with Scratchpad for the purposes of Scratchpad providing the Service as specified herein.
3.5
Notwithstanding anything to the contrary in this Agreement or otherwise, Scratchpad shall have the right to collect and analyze usage data, and other information relating to the provision, use, and performance of the Service and related systems and technologies (including information concerning the processing of Customer Data but not the Customer Data itself). Scratchpad shall be free (during and after the Term) to (i) use such information and data to improve and enhance the Service and for other development, diagnostic, and corrective purposes in connection with the Service and other Scratchpad offerings, and (ii) disclose such data solely in aggregate and de-identified form (i.e., in a form such that the data cannot be used to identify Customer or any individual (i.e., data subject) in connection with the Service and Scratchpad’s business.
3.6
Scratchpad’s processing of all Customer Data and Account Information shall comply with all laws, rules, and regulations applicable to Scratchpad and applicable industry practices, related to privacy and security, including without limitation implementing and maintaining appropriate technical and organizational measures designed to protect the confidentiality, security, integrity, and availability of Customer Data and Account Information. Where Customer Data includes personal data or personal information (as defined under applicable law), Customer shall (i) provide all notices and obtain, all consents, permissions and rights necessary under applicable law for Scratchpad to process such personal data or personal information for the purposes contemplated by this Agreement; and (ii) each of Customer and Scratchpad will comply with the Scratchpad Data Processing Addendum set forth at https://www.scratchpad.com/legal/data-processing-addendum.Â
4.1
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Scratchpad includes the Service and all related software and documentation. The Receiving Party agrees: (i) to take reasonable precautions to protect the Disclosing Party’s Confidential Information from unauthorized use and/or disclosure, and (ii) not to use (except in connection with the provision or use of the Service or as otherwise permitted herein) or disclose to any third party the Disclosing Party’s Confidential Information. For clarity, Customer acknowledges that its Confidential Information may be disclosed to third parties providing Third-Party Products to Customer, as elected by Customer, and that Scratchpad shall not be in breach of this Agreement, nor have any responsibility with respect to any third party’s acts or omissions, related to any such disclosures. The Disclosing Party agrees that the foregoing restriction shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public other than due to any act or omission by the Receiving Party; (b) was in its possession or known by it prior to receipt from the Disclosing Party without any obligation of confidentiality; (c) is or was rightfully disclosed to it without restriction by a third party that is or was authorized to make such disclosure; or (d) is or was independently developed without use of any Confidential Information of the Disclosing Party.Â
4.2
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
4.3
The Receiving Party may disclose the Confidential Information of the Disclosing Party to employees, advisors, contractors, and representatives who each have a need to know the Confidential Information for the purposes of this Agreement, but only if the person or entity is bound by confidentiality obligations at least as protective as those in this Section 4 and the Receiving Party remains responsible for any such recipient’s compliance with the terms of this Section 4.
5.1
Where Customer elects to purchase access to the Service on a “pay as you go” basis and has provided Scratchpad with a valid credit card, Scratchpad will bill the Customer in advance at the then-prevailing rates for the current number of Seats purchased. Where a pay as you go Customer adds a new Seat during a given term, the Customer will be required to pay, in advance, a pro rata amount to reflect the portion of the remaining term during which the Authorized User for that Seat will have access to the Service, provided that Scratchpad may bill Customer more frequently for fees accrued if Scratchpad believes there is a risk of non-payment or that Customer’s account may be fraudulent. Except as otherwise specified in this Agreement, (i) fees for use of the Service are based on Seats purchased and not actual usage and (ii) payment obligations are non-cancellable and fees paid are non-refundable. If Customer believes that Scratchpad has billed Customer incorrectly, Customer must contact Scratchpad no later than 10 days after the closing date on the billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
5.2
Where Customer has purchased access to the Service via an Order Form, Customer will pay Scratchpad all the fees described in the Order Form in accordance with the terms therein. Except as otherwise specified in this Agreement, (i) fees for use of the Service as described in the applicable Order Form are based on subscriptions purchased and not actual usage, (ii) payment obligations are non-cancellable and fees paid are non-refundable; (iii) quantities purchased cannot be decreased during the Initial Term or relevant Renewal Term, (iv) fees for Seats added to a subscription during Billing Cycle (as set forth on the Order Form) will be prorated based on the number of days remaining in the Billing Cycle during which they are added and thereafter. If use of the Service exceeds the limitations set forth on the Order Form or otherwise requires the payment of additional fees, Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Scratchpad may choose to bill through an invoice, in which case, full payment for invoices issued for any given period must be received by Scratchpad no later than invoice payment term set forth on the applicable Order Form.. If Customer believes that Scratchpad has billed Customer incorrectly, Customer must contact Scratchpad no later than 10 days after the closing date on the billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
5.3
If any amount due is not received by the applicable payment due date, Scratchpad may, without limiting its other rights or remedies and at it discretion, (i) charge late interest at the rate of 1.5% or the outstanding balance per month, or the maximum rate allowed by law, whichever is lower, from the date such payment was due until the date paid and/or (ii) suspend access to the Service and provision of any other services, on at least ten (10) days’ prior written notice (email acceptable), until all outstanding amounts are paid in full; provided, however, that Scratchpad will not exercise its rights under (i) or (ii) if the applicable fees or other charges are under reasonable and good faith dispute, timely raised by Customer as required in Section 5.1 or Section 5.2, as applicable, and Customer is cooperating diligently to resolve the dispute.
5.4
Unless otherwise stated, fees and other charges due under this Agreement do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, "Taxes"). Customer shall be responsible for paying all Taxes associated with this Agreement. If Scratchpad has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Scratchpad with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Scratchpad is solely responsible for taxes assessable against Scratchpad based on Scratchpad’s net income, property, and employees.
6.1
Where Customer has elected to purchase access to the Service on a pay as you go basis, the term of this Agreement commences when Customer creates an account and remains in effect until terminated in accordance with this Agreement. Customer may terminate this Agreement by terminating use of the Service and all applicable Authorized Users, and Scratchpad may terminate this Agreement for any reason by providing Customer 30 days’ advance notice.
6.2
Where Customer has elected to purchase access to the Service via an Order Form, subject to early termination as set forth below, this Agreement is for the term as specified in the initial Order Form by which the Subscription was purchased (the “Initial Term”) and shall automatically renew for additional periods equal to the Initial Term or such other renewal period as agreed by the parties (each such renewal period, a “Renewal Term”), unless either party gives 30 days' advance written notice to the other of its intent not to renew the Agreement prior to the end of the Initial Term or then-current Renewal Term.
6.3
In addition to other rights it may have, either party may terminate this Agreement for cause: (i) upon thirty (30) days’ written notice to the other party of the other party’s material breach of the Agreement, if such breach remains uncured at the expiration of such period or (ii) immediately upon written notice to the other party if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
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6.4
Upon termination or expiration of this Agreement, the licenses granted to Customer, its Affiliates, and each Authorized User shall terminate immediately, and Customer, its Affiliates, and each Authorized User shall cease all use of the Service immediately.
6.5
Sections 3 (Proprietary Rights), 4 (Confidentiality), 5 (Payment of Fees) for fees accrued or payable before expiration or termination, 7.3 (Disclaimer of Warranties), 8 (Indemnification) for Claims Against Customer or Claims Against Scratchpad arising before expiration or termination, 9 (Limitation of Liability), and 10 (Miscellaneous), and any other provisions, which by their nature should survive termination or expiration to give effect to the rights and obligations of the parties arising thereunder during the term under Section 6.1 or Section 6.2 above (as applicable, the “Term”), will survive termination or expiration of this Agreement.
7.1
Scratchpad warrants that, during the applicable Term, (i) the Service shall perform materially in accordance with its documentation, (ii) the functionality of the Service will not be materially decreased during such Term and (iii) it will perform the Related Services in a competent and professional manner. For any breach of the foregoing warranty, Customer’s (including, without limitation, its Affiliates and Authorized User) exclusive remedy shall be for Scratchpad to re-perform the applicable service or to correct any non-conformity in the Service; provided that if Scratchpad cannot re-perform the Service or correct the non-conforming in the Service, Customer may terminate the affected Order Form and Scratchpad will pay to Customer a prorated refund of prepaid fees for the remainder of the applicable Term. The warranties in Section 7.1 do not apply to any misuse or unauthorized modification of the Service, or to any Third-Party Product or any other product or service provided by anyone other than Scratchpad.
7.2
Each party represents and warrants that (i) it has all corporate authority to execute and perform this Agreement; (ii) it is duly organized and in good standing under the laws of the jurisdiction of its organization; (iii) it will comply with all laws and regulations applicable to such party in carrying out its responsibilities and exercising its rights hereunder; and (iv) it is (and, in the case of Customer, its Affiliates and Authorized Users are) not a party identified on any governmental or export exclusion list.
7.3
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, UNINTERRUPTED OR ERROR-FREE SERVICE, ERROR CORRECTION, AVAILABILITY, ACCURACY, AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.1
Scratchpad will defend Customer, its Affiliates, and Authorized Users (“Customer Indemnitees”) against any claim, demand, suit, or proceeding made or brought against Customer Indemnitees by a third party alleging that the use of a Service during the Term in accordance with this Agreement infringed such party's patent, copyright or trademark, or made unlawful use of such party's trade secret (a “Claim Against Customer”), and will indemnify Customer Indemnitees from any damages, attorney fees and costs finally awarded against Customer Indemnitees as a result of, or for amounts required to be paid by or on behalf of Customer Indemnitees under a court-approved settlement of, a Claim Against Customer; provided Customer (i) promptly gives Scratchpad written notice of the Claim Against Customer, (ii) gives Scratchpad sole control of the defense and settlement of the Claim Against Customer (except that Scratchpad may not settle any Claim Against Customer that requires any admission of liability or wrongdoing on the part of Customer or imposes on Customer any obligation other than the obligation to cease using the Service unless Customer consents to the applicable terms of such settlement agreement that are in conflict with the foregoing limitations), and (iii) gives Scratchpad all reasonable assistance, at Scratchpad’s expense.
8.2
If the Services are the subject of a Claim Against Customer or if Scratchpad reasonably believes that the Service is likely to become the subject of a Claim Against Customer or an injunction as a result of a Claim Against Customer, Scratchpad may in its discretion and at no cost to Customer (i) modify the Service so that it is no longer claimed to infringe or misappropriate, but substantially functionally equivalent, (ii) obtain a license for the continued use of the Service in accordance with this Agreement, or (iii) if neither (i) nor (ii) is, in Scratchpad’s reasonable judgment commercially reasonable options, terminate the subscriptions for the Service or impacted portion of the Service upon 30 days’ written notice and refund of any prepaid fees covering the remainder of the Term following the effective date of termination.
8.3
The above defense and indemnification obligations set forth in Sections 8.1 and 8.2 do not apply if (i) the allegation does not state with specificity that the Service is the basis of the Claim Against Customer; (ii) a Claim Against Customer arises from Customer’s use of Third Party Products or the use or combination of the Service or any part thereof with software, hardware, data, or processes not provided by Scratchpad, to the extent the Service or use thereof would not infringe or misappropriate without such use or combination; or (iii) a Claim Against Customer arises from Customer Indemnitees’ breach of this Agreement.
8.4
Customer will defend Scratchpad and its Affiliates (“Scratchpad Indemnitees”) against any claim, demand, suit, or proceeding made or brought against Scratchpad Indemnitees by a third party alleging that Customer Data infringes or misappropriates such third party’s intellectual property or privacy rights or violates applicable law or arising from Customer’s, its Affiliates’, and/or any Authorized User’s use of the Service in breach of this Agreement (a “Claim Against Scratchpad”), and will indemnify Scratchpad Indemnitees from any damages, attorney fees and costs finally awarded against Scratchpad Indemnitees as a result of, or for any amounts required to be paid by or on behalf of Scratchpad Indemnitees under a court-approved settlement of, a Claim Against Scratchpad, provided Scratchpad (i) promptly gives Customer written notice of the Claim Against Scratchpad, (ii) gives Customer sole control of the defense and settlement of the Claim Against Scratchpad (except that Customer may not settle any Claim Against Scratchpad that requires any admission of liability or wrongdoing on the part of Scratchpad or imposes any obligation on Scratchpad unless Scratchpad consents to the applicable terms of such settlement agreement that are in conflict with the foregoing limitations), and (iii) gives Customer all reasonable assistance, at Customer’s expense.
8.5
This Section 8 (Indemnity) states (i) Scratchpad’s entire liability and/or obligations and Customer’s exclusive remedy with respect to any actual or alleged infringement of any patent, copyright or trademark or other intellectual property right or misappropriation of any trade secret by the Service and (ii) Customer’s entire liability and/or obligations and Scratchpad’s exclusive remedy with respect to Claims Against Scratchpad.
9.1
IN NO EVENT SHALL CUSTOMER OR SCRATCHPAD, OR THEIR RESPECTIVE AFFILIATES BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2
EXCEPT FOR (i) A PARTY’S OBLIGATIONS UNDER SECTION 8 (INDEMNITY), (ii) AMOUNTS PAYABLE BY CUSTOMER UNDER SECTION 5. (PAYMENT AND FEES) AND (iii) DAMAGES ARISING FROM CUSTOMER’S VIOLATIONS OF THE USE RESTRICTIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL THE TOTAL LIABILITY OF CUSTOMER OR SCRATCHPAD, OR THEIR RESPECTIVE AFFILIATES WITH RESPECT TO THE SERVICE OR TO RELATED SERVICES PURCHASED UNDER ANY ORDER FORM EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO SCRATCHPAD FOR THE SERVICE AND RELATED SERVICES UNDER SUCH ORDER FORM IN THE 12 MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION THAT GAVE RISE TO THE LIABILITY.
9.3
THE ALLOCATIONS OF LIABILITY IN THIS SECTION 9 REPRESENT THE AGREED AND BARGAINED FOR UNDERSTANDING OF THE PARTIES, AND THE COMPENSATION OF SCRATCHPAD FOR THE SERVICES AND RELATED SERVICES PROVIDED HEREUNDER REFLECTS SUCH ALLOCATIONS. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
10.1
Assignment. Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, provided that no such consent will be required to assign this Agreement in its entirety to (i) an Affiliate that is able to satisfy the obligations of the assigning party under this Agreement or (ii) a successor in interest in connection with a merger, acquisition or sale of all or substantially all of the assigning party’s assets. Any assignment in violation of this Section shall be void, ab initio, and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by, the parties and their respective permitted successors and assigns.
10.2
Attorney’s Fees. If a final order is issued in any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees incurred in connection with such litigation, in addition to any other relief to which such prevailing party may be entitled. As used herein, "prevailing party" includes without limitation, a party who dismisses an action for recovery hereunder in exchange for payment of the sums allegedly due, performance of covenants allegedly breached, or consideration substantially equal to the relief sought in the action.
10.3
Customer Identification. Scratchpad may identify Customer and use Customer’s logo and trademarks on Scratchpad’s website and in marketing materials to identify Customer as a user of the Service.
10.4
Force Majeure. Except with respect to payment obligations, neither party will be liable for, or be in breach of, or in default under, this Agreement, as a result of any cause or condition beyond such party's reasonable control.
10.5
Future Features and Functions. Customer understands and agrees that any features or functions of Services referenced on any Scratchpad website, or in any presentations, press releases or public statements, which are not currently available or not currently available as a GA release, may not be delivered on time or at all. The development, release, and timing of any features or functionality described for the Service remains at Scratchpad’s sole discretion. Accordingly, Customer agrees that it is purchasing the Service based solely upon features and functions that are currently available as of the time an Order Form is executed, and not in expectation of any future feature or function.
10.6
Governing Law and Venue; Equitable Relief. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions and the parties agree that any dispute arising out of this Agreement that cannot be settled between them in good faith shall be heard exclusively in the local, state, or federal courts located in San Mateo or San Francisco County, California. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods.
10.7
Notice. 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 e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notices to Scratchpad may also be sent to legal@scratchpad.com. Either party may from time to time change its address for notices under this Section by giving the other party notice of the change in accordance with this Section.
10.8
Relationship of the Parties. 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 party in any respect whatsoever.
10.9
Severability. If any provision of this Agreement is found to be unenforceable or invalid, the remaining provisions shall remain in full force and effect, and such provision will be eliminated or revised to the minimum extent necessary to make such enforceable and valid consistent with the parties’ intention.
10.10
Entire Agreement; Amendment. This Agreement, and any Order Forms executed by the parties is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. In the event of a conflict between the foregoing documents, the conflict shall be resolved based on the following order of precedence: (i) the applicable Order Form (but only for the transaction thereunder) and (ii) this Agreement. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.