Updated as of: June 1st, 2026
This ServiceBridge Master Services Agreement (“MSA,” or “Agreement“) is between GPS Insight and Customer and sets forth the terms and conditions to which Customer, on behalf of itself and its Affiliates, agrees with respect to the acquisition and use of the Service (defined below), all as set forth on the applicable Quote(s) to which this Agreement relates (the “Quote(s)“). Unless otherwise defined herein, all capitalized terms shall have the same meaning as prescribed in the applicable Quote.
IF CUSTOMER REGISTERS FOR A DEMO/FREE TRIAL VERSION OF THE SERVICE, THE APPLICABLE PROVISIONS OF THIS AGREEMENT ALSO GOVERN CUSTOMER’S USE OF THOSE SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING ACCEPTANCE OR BY EXECUTING A QUOTE, STATEMENT OF WORK, OR OTHER DOCUMENT THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CUSTOMER REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF CUSTOMER DOES NOT HAVE SUCH AUTHORITY, OR IF CUSTOMER DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, CUSTOMER MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE. GPS INSIGHT MAY REVISE AND UPDATE THIS AGREEMENT, INCLUDING ANY ADDENDUM, FROM TIME TO TIME IN ITS SOLE DISCRETION EFFECTIVE UPON NOTICE TO CUSTOMER’S ACCOUNT. ALL CHANGES ARE EFFECTIVE IMMEDIATELY WHEN POSTED AND APPLY TO ALL ACCESS TO, AND USE OF, THE SOLUTION, DEVICES AND INSTALLATION SERVICES THEREAFTER.
GPS Insight’s Privacy Policy (the “Privacy Policy“), at https://www.gpsinsight.com/privacy-policy/, describes the collection, use and disclosure of data and information (including usage data) by GPS Insight in connection with the Services. The Privacy Policy, as may be updated from time to time in accordance with its terms, is hereby incorporated into this Agreement, and Customer hereby agrees to the collection, use and disclosure practices set forth therein.
This Agreement incorporates the GPS Insight Data Processing Addendum (“DPA“), currently available at servicebridge.com/gdpr, when the GDPR EU Regulation 2016/679 applies to Customer’s use of the Services to process Customer Data (as defined in the DPA). The DPA may be updated from time to time in accordance with its terms. The DPA then in effect replaces and supersedes any previously agreed data processing addendum between Customer and GPS Insight.
In consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties intend to be legally bound and do hereby agree as follows:
1. DEFINITIONS
1.1 “Affiliate” means any entity that, directly or indirectly, controls, is controlled by or is under common control with such entity (but only for so long as such control exists), where “control” means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity.
1.2 “Agreement” means this MSA, any Quote Customer enters into with GPS Insight, the Privacy Policy and any other terms or documents referred to herein.
1.3 “Authorized User” means an individual who is Customer’s employee or contractor, Customer’s Affiliate’s employee or contractor, or a Permitted Third Party’s employee or contractor who Customer allows to create a unique username and password under Customer’s account.
1.4 “Customer Data” means all electronic data or information submitted to the Service, or otherwise provided for processing by the Service, by or on behalf of Customer and its Affiliates in accordance with this Agreement.
1.5 “Documentation” means the GPS Insight user documentation, in all forms, relating to the Service (e.g., user manuals, on-line help files, etc.).
1.6 “Electronic Communications” means any transfer of signs, signals, text, images, sounds, data, or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service.
1.7 “Mobile App” means GPS Insight’s mobile application for approved mobile devices that interfaces with the Service, which may be downloaded and installed on Customer’s approved mobile devices and is subject to any applicable application store terms and conditions.
1.8 “Permitted Third Party” means an entity under contract with Customer or Customer’s Affiliates who needs to access the Service to perform its obligations to Customer or Customer’s Affiliates and who is not GPS Insight’s competitor.
1.9 “Professional Services” means the professional services specified in a Quote or Statement of Work, potentially including but not limited to implementation services, consulting, and training services.
1.10 “Professional Services Fees” means the fees for the Professional Services specified in the Quote or Statement of Work.
1.11 “Service” or “Services” means the software service and related services identified in a Quote but excludes Professional Services.
1.12 “Statement of Work” means GPS Insight document which specifies the provision of certain Professional Services and/or deliverables.
1.13 “Subscriber Software” means software components to be installed on Customer’s, its Affiliates’, or Authorized Users’ computer systems or devices.
1.14 “Subscription Fees” means the fees for the Service specified in the Quote or Statement of Work.
1.15 “Technical Support Services” means GPS Insight’s then-current technical support services offering.
1.16 “Third Party Materials” means any content, data, information, applications, or materials from third parties that may be accessed through the Service or Mobile App.
2. SERVICEBRIDGE SERVICE; DEMO/FREE TRIALS
2.1 ServiceBridge Service. GPS Insight offers demo/free trial versions of the Service. The most comprehensive version of the Service requires payment for continued use of the Service. The version of the Service that requires payment is currently referred to as “ServiceBridge Service.”
2.2 Demo/Free Trials. GPS Insight may offer trials of the Service for a specified period of time without payment or at a reduced rate (each, a “Demo/Free Trial“). If Customer registers on GPS Insight’s website or via a Quote for a Demo/Free Trial, GPS Insight will make the Service available to Customer until the earlier of (a) the end of the Demo/Free Trial period for which Customer registered to use the Service; (b) the start date of any ServiceBridge Service subscription ordered by Customer for such Service; or (c) termination by GPS Insight in its sole discretion. Unless otherwise expressly set forth in the applicable Quote or Demo/Free Trial registration terms, if Customer does not cancel the Demo/Free Trial before the end of the Demo/Free Trial period, the Demo/Free Trial will automatically convert into a paid subscription for an initial term of one (1) year commencing immediately upon expiration of the Demo/Free Trial period, and Customer will be responsible for payment of the applicable Subscription Fees for such one-year term in accordance with this Agreement and the applicable Quote. Additional Demo/Free Trial terms and conditions may appear on the Demo/Free Trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding, and to the extent such additional terms and conditions conflict with any other terms in this Agreement, such additional terms will control. GPS Insight reserves the right, in its absolute discretion, to determine Customer’s eligibility for a Demo/Free Trial, and, subject to applicable laws, to withdraw or to modify a Demo/Free Trial at any time without prior notice and with no liability, to the greatest extent permitted under law. ANY DATA CUSTOMER ENTERS INTO THE SERVICE, AND ANY CONFIGURATION CHANGES MADE TO THE SERVICE BY OR FOR CUSTOMER, DURING CUSTOMER’S DEMO/FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICE AS THOSE COVERED BY THE DEMO/FREE TRIAL OR EXPORTS SUCH DATA, BEFORE THE END OF THE DEMO/FREE TRIAL PERIOD. Customer should review the applicable Documentation for the Service during the Demo/Free Trial period so that Customer become familiar with the functionality and features of the Service.
2.3 Beta Versions. From time to time, GPS Insight may make available for Customer to try certain functionality related to the Service, which is clearly designated as beta, pilot, limited release, non-production, or by a similar description (each, a “Beta Version“). Beta Versions are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. GPS Insight may discontinue Beta Versions at any time in its sole discretion and may never make them generally available. GPS Insight has no liability for any harm or damage arising out of or in connection with a Beta Version.
2.4 Inapplicable Provisions. NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMER), BETA VERSIONS AND DEMO/FREE TRIALS OF THE SERVICE ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, AND SECTION 9 DOES NOT APPLY TO BETA VERSIONS AND DEMO/FREE TRIALS OF THE SERVICE.
3. USE OF THE SERVICE
3.1 Use of the Service. Subject to the terms and conditions of this Agreement and the timely payment of any applicable fees, GPS Insight grants Customer and its Affiliates a limited, worldwide, non-exclusive, non-transferable (except as explicitly permitted in this Agreement), non-sublicensable right during the term of this Agreement to use the Service solely in connection with Customer’s internal business operations. Customer and its Affiliates’ rights to use the Service are subject to any limitations on use of the Service based on the version of the Service registered for (e.g., applicable user limits) and as set forth in the Quote (collectively, the “Scope Limitations“). Customer’s rights to use the Service are contingent upon full compliance with the Scope Limitations and this Agreement. As further detailed in Section 6.1, any decrease in users must be requested at least sixty (60) days prior to any applicable term autorenewal. As part of the Service, GPS Insight may provide Customer and its Affiliates with Subscriber Software, which Customer and its Affiliates may install on its computer system or other devices, subject to the terms of this Agreement, including, without limitation, Section 3.3. Customer is solely responsible for its, its Affiliate’s and their Authorized User’s conduct (including by and between all users), the content of Customer Data, and all communications with others while using the Service. Customer acknowledges that GPS Insight has no obligation to monitor any information on the Service, but GPS Insight may remove or disable any information that Customer or an Authorized User makes publicly available on the Service at any time for any reason or for no reason at all. GPS Insight is not responsible for the availability, accuracy, appropriateness, or legality of Customer Data or any other information Customer may access using the Service.
3.2 Mobile App. GPS Insight may provide Customer with access to the Mobile App as part of the Service. The license granted to Customer for the Mobile App is limited to a non-exclusive, non-transferable, revocable license to use the object code of the Mobile App on approved mobile devices that Customer owns or controls, subject to any applicable application store terms and conditions. Customer agrees that GPS Insight may, from time to time, issue new versions of the Mobile App, which may be automatically upgraded on Customer’s mobile devices, and that this Agreement will apply to any such upgrades.
3.3 Third Party Materials. The Service may enable Customer’s access to Third Party Materials. GPS Insight is not responsible for the performance of, or Customer’s access to, any Third-Party Materials. Third Party Materials are governed by their own terms and conditions provided by the third-party licensor, and GPS Insight does not warrant or support Third Party Materials. Customer acknowledges that GPS Insight is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of Third-Party Materials. Any performance issues with Third Party Materials must be addressed directly with the applicable third-party provider.
3.4 Use of the Documentation. Subject to the terms and conditions of this Agreement, GPS Insight grant to Customer and its Affiliates a limited, worldwide, non-exclusive, non-transferable (except as explicitly permitted in this Agreement), non-sublicensable right during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Service in accordance with this Agreement.
3.5 Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize its Affiliates, Authorized Users or third parties to: (a) rent, lease, or, except as explicitly set forth in this Agreement, otherwise permit third parties to use the Service, Mobile App, Subscriber Software, or Documentation; (b) license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose or otherwise commercially exploit or make the Service available to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (c) circumvent or disable any security or other technological features or measures of the Service, or attempt to probe, scan or test the vulnerability of a network or system, or to breach security or authentication measures; (d) upload or provide for processing any information or material that is illegal, defamatory, offensive, abusive, obscene, or that violates privacy or intellectual property rights of any third party; (e) use the Service to harm, threaten, or harass another person or organization; (f) intentionally damage, destroy, disrupt or otherwise impede or harm in any manner the Service or any systems used by GPS Insight, including sending, storing, or distributing any viruses, worms, Trojan horses, or other disabling code or malware component harmful to a network or system; or (g) access or use the Service in order to build a similar or competitive product or service. In addition to Customer’s other obligations set forth herein, Customer specifically acknowledges and agrees that: (i) GPS Insight is not acting on Customer’s behalf as a business associate or subcontractor (as such terms are used, defined, or described in the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA“)); (ii) the Service is not HIPAA-compliant; and (iii) Customer, nor its Affiliates or permitted third parties, may not use the Service in any manner that would require GPS Insight or its Service to be HIPAA-compliant. Customer will not copy, reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Service, Mobile App, or any Subscriber Software or provide, disclose, or make any Subscriber Software available to any third party, except that it may make one copy of Subscriber Software solely for backup and archival purposes. Customer will neither alter nor remove any trademark, copyright notice, or other proprietary rights notice that may appear in any part of the Documentation or any Subscriber Software and will include all such notices on any copies. Customer will ensure that its Affiliates, Permitted Third Parties, and Authorized Users comply with this Agreement and Customer will be directly and fully responsible for their conduct and any breach of this Agreement by any of them. GPS Insight reserves the right, with or without notice, to deactivate, change, or require Customer to change a user ID and any custom or vanity URLs, custom links, or vanity domains it may obtain through the Service for any reason or for no reason. Customer expressly acknowledges and agrees that the Service: (i) shall not be used for emergency response, crime prevention, or any life-safety purposes; and (ii) generates data that is for informational purposes only and is not warranted to be accurate for financial, legal, contractual, billing, regulatory compliance, or other enforcement purposes.
3.6 Authorized Users Only. This Agreement restricts the use of the Service to Authorized Users, limited to the Customer’s authorized users and other limitations specified in the Quote. An Authorized User account must not be shared among users. Additional Authorized Users may be added by paying the applicable fees to GPS Insight at its then-current rate or as otherwise specified in a Quote. The Authorized Users who are employees of Permitted Third Parties may access and use the Service solely to perform the Permitted Third Party’s contractual obligations to Customer subject to the use limitations set forth in this Agreement. As part of the registration process, Customer may be asked to identify its company and other Authorized Users who should be associated with its account. Customer will not misrepresent the identity or nature of its company or Authorized Users who should be associated with its account. GPS Insight may reassign the domain name associated with Customer’s account and change the way Customer accesses the Service at any time in GPS Insight’s sole discretion. Customer is responsible for maintaining the confidentiality of its login, password, and account and for all activities that occur under its login and account, including the activities of Authorized Users. GPS Insight will act as though any electronic communications it receives under Customer’s passwords, user accounts, and/or account numbers have been sent by Customer. Customer agrees to immediately notify GPS Insight if Customer becomes aware of any loss, theft, or unauthorized use of any of Customer’s passwords, user accounts, and/or account numbers. Customer agrees not to access the Service by any means other than through the interfaces that are provided by GPS Insight.
3.7 Protection Against Unauthorized Use. Customer will, and will ensure that its Affiliates, Permitted Third Parties, and Authorized Users use reasonable efforts to prevent any unauthorized use of the Service, Subscriber Software, and Documentation, and Customer will immediately notify GPS Insight in writing of any unauthorized use that comes to Customer’s attention. If there is unauthorized use by anyone who obtained access to the Service, Subscriber Software, or Documentation directly or indirectly through Customer, its Affiliate, a Permitted Third Party, or an Authorized User, Customer will take all steps reasonably necessary to terminate the unauthorized use. Customer will fully cooperate and assist with any actions taken by GPS Insight to prevent or terminate unauthorized use of the Service, Subscriber Software, or Documentation. GPS Insight may, at its expense, appoint its personnel or an independent third party to verify that Customer’s use of the Service complies with the terms of this Agreement.
3.8 Reservation of Rights. GPS Insight retain all right, title, and interest in and to the Service, Subscriber Software and Documentation and all related intellectual property rights, including without limitation any modifications, updates, customizations, cards, apps, or other add-ons. Customer’s rights to use the Service, Documentation, and Subscriber Software are limited to those expressly set forth in this Agreement. GPS Insight reserves all other rights in and to the Service, Subscriber Software, and Documentation.
4. PROFESSIONAL SERVICES AND TECHNICAL SUPPORT SERVICES
4.1 Professional Services. Customer may contract with GPS Insight to perform Professional Services. The specific details of the Professional Services to be performed will be determined on a per-project basis, and the details for each project will be described on the Quote and Statement of Work (if applicable). Unless otherwise specified in the applicable Quote or Statement of Work, Customer must fully utilize the purchased Professional Services within ninety (90) days from the Quote effective date. If any portion of the Professional Services are unused within this period, or any other period as detailed in the applicable Quote or Statement of Work, any fees paid for such unused services will be forfeited and not subject to refund or credit. If Customer elects not to purchase Professional Services to assist with implementation and training, Customer will still be entitled to receive the assistance of ServiceBridge Technical Support to assist with any product issues. However, if Customer elects not to purchases Professional Services, Customer shall not be entitled to utilize ServiceBridge Technical Support as a substitute for the Professional Services, including, but without limitation, any Professional Services relating to the implementation or installation of the Service. Customers, including those who are subject to European Data Protection Laws and Regulations, hereby acknowledge and grant GPS Insight permission to have access to Customer Data, including regulated data, for any Professional Services performed as described on the Quote and Statement of Work (if applicable).
4.2 Changes to Professional Services. Customer may reasonably request in writing that revisions be made with respect to the Professional Services set forth in a Quote and Statement of Work. If the requested revisions materially increase the scope of the Professional Services or the effort required to perform the Professional Services under the Quote, then GPS Insight will deliver to Customer a written proposal reflecting GPS Insight’s reasonable determination of the revised Professional Services, delivery schedule, and payment schedule, if any, that applies to the requested revisions. If Customer approves the proposal, then the parties will execute an amendment to the Quote. Otherwise, the then-existing Quote will remain in full force and effect, and GPS Insight will have no obligation with respect to the relevant change requests.
4.3 Technical Support Services. GPS Insight will provide Customer with Documentation and other online resources which can be referenced at https://help.servicebridge.com/en. GPS Insight will also provide the applicable Technical Support Services for the version of the Service to which Customer is subscribed or purchased as part of a Quote so long as the Subscription Fees (if applicable) are current. Customer is responsible for providing support to Permitted Third Parties. Customers, including those who are subject to European Data Protection Laws and Regulations, hereby acknowledge and grant GPS Insight permission to have ongoing access to Customer Data, for any Technical Support Services.
4.4 Customer Responsibilities. Customer will provide assistance, cooperation, information, equipment, data, a suitable work environment, and resources reasonably necessary to enable GPS Insight to perform the Professional Services and Technical Support Services. Customer acknowledges that GPS Insight’s ability to provide Professional Services as described in the Quote and Technical Support Services may be affected if Customer does not meet its responsibilities set forth in this Agreement.
4.5 Feedback and Other Content. The Service may permit Customer, its Affiliates, Authorized Users, and Permitted Third Parties to submit feedback, user community contributions and comments, technical support information, suggestions, enhancement requests, recommendations, and messages relating to the use and operation of the Service (collectively, “Feedback“). Customer hereby agrees that any such Feedback shall be the sole and exclusive property of GPS Insight, and Customer hereby irrevocably transfers and assigns to GPS Insight, and agrees to irrevocably assign and transfer to GPS Insight, all of Customer’s right, title, and interest in and to all Feedback, including all worldwide patent rights, copyright rights, trade secret rights, and other intellectual property rights therein. Customer will execute any documents and take such further acts as GPS Insight may reasonably request to assist GPS Insight in obtaining, perfecting, and enforcing its intellectual property rights in any Feedback. In the alternative, to the extent any such assignment is not effective under applicable law, Customer hereby grants to GPS Insight a royalty-free, fully paid, non-exclusive, perpetual, irrevocable, worldwide, transferable license to display, use, copy, modify, publish, perform, translate, create derivative works from, sublicense, distribute, and otherwise exploit such Feedback without restriction.
5. FEES AND PAYMENT
5.1 Fees and Payment Terms. Unless otherwise specified in the Quote, the initial Subscription Fees and any applicable Professional Services Fees are due upon execution of the Quote. Customer will pay all fees set forth on the applicable Quote without setoff or deduction, and all fees are non-refundable. Subscription Fees will be invoiced at the then-current rate for the Service or as otherwise specified in the Quote, up to sixty (60) days in advance of the start of each renewal period. Fees for additional Service quantities and Professional Services will be invoiced at the time of order, unless otherwise agreed in writing by the parties. After the initial Subscription Fees and Professional Services Fees, Customer will pay all additionally invoiced amounts in full within thirty (30) days after the invoice date. The charges in an invoice will be considered accepted by Customer unless GPS Insight is notified of a good faith dispute in writing within five (5) days of the date of the invoice. Except as otherwise set forth on the applicable Quote, upon 60 days prior written notice, but no more than once annually, GPS Insight reserves the right to increase the Subscription Fees and any other fees hereunder; this increase shall not be greater than 10% of the previous Subscription Term for the associated Subscription Fee for a given product or service. Unless expressly provided otherwise in the Quote, all amounts payable under this Agreement are denominated in United States dollars, and Customer will pay all such amounts in United States dollars. Customer shall provide accurate, current, timely, and complete information on Customer’s legal business name, address, email address and phone number. Customer shall also provide an appropriate billing address, email address, contact person and phone number. Customer must promptly update all contact and billing information should it change. Customer is responsible for any and all their bank fees related to payments. Customer will be charged for the full Subscription Term upon signup. There are no refunds or credits for partial months of service, upgrade, or downgrade refunds, or refunds for months unused with an open account.
5.2 Credit Card. If Customer uses a credit card to set up an account or pay for the Service, Customer must be authorized to use the credit card information that it enters when creating the billing account. Customer authorizes GPS Insight to charge Customer for the Service using the credit card on file and for any paid feature of the Service that Customer chooses to sign up for or uses under this Agreement. For credit card payment methods, such cards will be set to autopay for each recurring payment upon the applicable recurring payment period set forth on the Quote. If Customer sets up a Demo/Free Trial using a credit card or if Customer paid the Subscription Fees using a credit card, it agrees that GPS Insight may automatically charge the credit card account the applicable Subscription Fee when the Demo/Free Trial ends or renew the subscription and charge Customer’s credit card account on the one-year anniversary of the last subscription date (the “Renewal Date“), unless the subscription is terminated before the end of the Demo/Free Trial or the Renewal Date (as applicable). GPS Insight will automatically renew Customer’s subscription each year on the Renewal Date until Customer terminates the subscription or GPS Insight no longer offers the Service to which Customer subscribed. Customer must keep all information in its billing account current. Customer may change its payment method at any time. GPS Insight may terminate Customer’s access to any Service if timely payment is not received.
5.3 Late Payment. Any amount not paid when due may be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded monthly from the date due until the date paid. Customer will reimburse GPS Insight for any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred to collect any amount that is not paid when due. Amounts due may not be withheld or offset by Customer against amounts due to Customer for any reason. GPS Insight reserves the right to suspend Customer’s and any Affiliates’ access to and/or use of Service for any account when any applicable payment is overdue or when GPS Insight believes that Customer is using the Service not in accordance with this Agreement and/or applicable laws and government regulations. If Customer’s access to the Service is suspended for failure to pay, upon payment of all amounts due (including any interest owed, late fees, and collection costs), Customer may request the reactivation of its account.
5.4 Taxes. The fees stated in a Quote do not include local, state, federal, or foreign taxes (e.g., value-added, sales, or use taxes), or fees, duties, or other governmental charges resulting from this Agreement (“Taxes“). Customer is responsible for, and will pay or reimburse GPS Insight for, all sales, use, value-added, withholding, and other taxes and duties of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder, except for taxes based on GPS Insight’s net income. Customer will indemnify and hold GPS Insight harmless from and against any such Taxes, including any related penalties, interest, or other charges, that are imposed on or collected from GPS Insight. If Customer is exempt from payment of such taxes, Customer will provide GPS Insight with a valid tax exemption certificate from the appropriate taxing authority.
5.5 Integrated Payment Processing (Fiserv). To the extent Customer uses payment processing features within the Service, Customer agrees to use only the integrated payment processing services provided by GPS Insight and Fiserv for all transactions. Customer must sign up through Fiserv and may not create or use separate Fiserv accounts or any other third-party payment processors for transactions via the Service. Any breach of this exclusivity may result in the immediate termination of Customer’s access to the Service. Customer must adhere to Fiserv’s Terms of Use and Privacy Notice, and any other Fiserv terms and conditions related to Customer’s use of related Fiserv features. All such terms constitute a two-party agreement between Customer and Fiserv, and GPS Insight disclaims all liability related thereto. It is Customer’s responsibility to set up and provide appropriate notices and legal terms and conditions to Customer’s end users when utilizing the Fiserv service fee features. Any such terms may not contradict and must comply with this Agreement and Fiserv terms as appropriate and applicable.
5.6 Future Functionality. Purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by GPS Insight regarding future functionality or features.
5.7 Promotional Pricing. Except as otherwise set forth on the applicable Quote, upon renewal, GPS Insight reserves the right to increase any offered promotional pricing for the Subscription Fees, and any other fees hereunder up to the list price.
6. TERM AND TERMINATION
6.1 Term. This Agreement commences on the effective date specified in the Quote (the “Effective Date“) and continues for the initial subscription term specified in the Quote (the “Initial Subscription Term“), unless this Agreement is terminated earlier in accordance with the terms of this Agreement. Upon expiration of the Initial Subscription Term, except as otherwise set forth on the applicable Quote, the Subscription Term automatically renews for additional successive terms equal to the duration of the Initial Subscription Term (each a “Renewal Term“, and together with the Initial Subscription Term, the “Subscription Term“) unless either party provides the other with written notice of termination at least 60 days before the end of the then-current Subscription Term, provided that no Renewal Term shall exceed 12 months. For the sake of clarity, if the Initial Subscription Term exceeds 12 months, each Renewal Term shall default to 12 month term renewals. Any requested decrease in number of subscription licenses upon renewal must also be made via written notice at least 60 days before the end of the then-current Subscription Term. This may result in an increase to the per-user (or other applicable) subscription license fee. Customer may purchase additional Service subscriptions following the Effective Date. Such follow-on orders will be subject to the terms and conditions of this Agreement. Unless otherwise specified in the applicable Quote, any additional Service subscriptions will have a Subscription Term that expires on the same date as the original Subscription Term, with pricing prorated accordingly for the remaining period. Follow-on orders placed within ninety (90) days prior to the expiration of the current Subscription Term will automatically commence a new Subscription Term for all subscriptions under this Agreement upon expiration of the then-current term.
6.2 Termination for Insolvency. Either party may terminate this Agreement effective upon notice if the other party: (i) becomes insolvent; (ii) enters bankruptcy, reorganization, or other similar proceedings under applicable laws, whether voluntary or involuntary; (iii) admits in writing its inability to pay debts; or (iv) makes or attempts to make an assignment for the benefit of creditors.
6.3 Termination for Default. GPS Insight has the right to modify, suspend, or discontinue, temporarily or permanently, the Service, Mobile App, any licenses granted by GPS Insight hereunder, and Customer’s right to access or use the Service at any time and without prior notice, for any reason, including without limitation: (i) attempts by Customer (or other party) to gain unauthorized access to the Service or assist others in attempting to do so; (ii) Customer (or other party) disabling any security features on the Service; (iii) Customer’s violation of this Agreement; (iv) Customer’s failure to pay for services ordered hereunder or any related charges; (v) Customer’s suspected or actual infringement of a third party’s intellectual property rights or trade secrets as defined in the Uniform Trade Secret Act, including customer lists, product lists, product pricing, company templates, or similar trade secret property; or (vi) pursuant to requests by law enforcement or other government agencies. The obligations and liabilities of Customer incurred prior to the termination date shall survive the termination of this Agreement for all purposes.
6.4 Termination for Third-Party License Expiration. GPS Insight reserves the right to terminate this Agreement and any licenses granted hereunder in the event any license for Third Party Materials is terminated for any reason.
6.5 Subscription Term Buyout. Customer may terminate the Subscription Term early without cause upon sixty (60) days’ prior written notice; provided that Customer pays all fees, including Subscription Fees, that would have been owed through the remainder of the Subscription Term, which fees shall become due and payable in full on the effective date of termination.
6.6 Post-Termination Obligations. If this Agreement is terminated for any reason: (a) GPS Insight has no obligation to provide or perform any Service, Professional Services, or Technical Support Services after the effective date of the termination; (b) Customer will immediately pay to GPS Insight any Subscription Fees, Professional Services Fees, and other amounts that have accrued prior to the effective date of the termination; (c) Customer will provide a written certification signed by an authorized representative certifying that all use of the Service, Subscriber Software, and Documentation by Customer, its Affiliates, Permitted Third Parties, and Authorized Users has been discontinued and the Subscriber Software has been de-installed from all computer systems; and (d) Sections and Subsections 1, 2, 3.3, 3.5, 3.6, 4.5, 5, 6.6, 7, 8.2, 9.4, 11, 12, and 13 will survive termination. If this Agreement is terminated by GPS Insight for Customer’s uncured material breach, Customer will pay to GPS Insight the amounts due under the applicable Quote for the remainder of the then-current term.
6.7 Effect of Termination. Upon any termination of the Subscription Term, Customer’s right to access and use the terminated Service shall automatically terminate.
6.8 Read-Only Access. Customer may have the option to purchase read-only access to Customer Data following termination. This option, if available, will be governed by this Agreement or the then-current terms applicable at the time of purchase of such continued access. Unless otherwise agreed to by GPS Insight, Customer must make any request for this access within thirty (30) days following the effective date of termination. GPS Insight has no obligation to store or maintain Customer Data thereafter unless such access is purchased.
7. CONFIDENTIAL INFORMATION
7.1 Definition. “Confidential Information” means non-public business information, know-how, and trade secrets in any form, including information regarding GPS Insight’s product plans, Beta Versions, terms of this Agreement, and any other information a reasonable person should understand to be confidential, which is disclosed by or on behalf of either party or its Affiliates to the other party or its Affiliates, directly or indirectly, in writing, orally, or by inspection of tangible objects, and whether such information is disclosed before or after the Effective Date specified on the Quote. Confidential Information includes this Agreement and its terms. “Confidential Information” excludes information that (a) is publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party through no action or inaction of the receiving party; (b) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; (c) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
7.2 Maintenance of Confidentiality. The party receiving Confidential Information hereunder agrees to take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than reasonable care, to prevent the unauthorized duplication or disclosure of the Confidential Information to third parties without the disclosing party’s prior written consent. The receiving party may disclose the disclosing party’s Confidential Information to the receiving party’s employees or agents who reasonably need to have access to such information to perform the receiving party’s obligations under this Agreement, and who will treat such Confidential Information under the terms of this Agreement. Provided that such Permitted Third Party is bound by obligations of confidentiality and non-use no less restrictive than the terms of this Agreement, Customer may disclose GPS Insight’s Confidential Information to a Permitted Third Party solely to the extent required for such Permitted Third Party to be able to access and use the Service pursuant to this Agreement. Also, GPS Insight may disclose this Agreement to actual and potential investors and funding sources and their representatives, in each case who agree to hold it in confidence. The receiving party may disclose the disclosing party’s Confidential Information if required by law so long as the receiving party gives the disclosing party written notice of the requirement prior to the disclosure (where permitted) and reasonable assistance, at the disclosing party’s expense, in limiting disclosure or obtaining an order protecting the information from public disclosure.
7.3 Destruction of Materials. Upon written request of the disclosing party, or in any event upon any termination or expiration of this Agreement, the receiving party will destroy all materials, in any medium, to the extent containing or reflecting any of the disclosing party’s Confidential Information. Following expiration or termination of this Agreement, GPS Insight has no obligation to retain any data collected through Customer’s use of the Service, and GPS Insight may purge Customer Data and Customer’s Service environment from GPS Insight’s systems. The obligations in this Section 7 survive for three years following expiration or termination of this Agreement, except that Confidential Information that constitutes a trade secret of the disclosing party will continue to be subject to the terms of this Section 7 for as long as such information remains a trade secret under applicable law.
8. DATA SECURITY
8.1 Data Security & Transmission. GPS Insight implements and maintains physical, electronic, and managerial procedures intended to protect against the loss, misuse, unauthorized access, alteration, or disclosure of Customer Data. Customer acknowledges and understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to use of the Service. DSL, cable, or another high-speed internet connection is required for proper transmission. Customer further acknowledge and understand that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. GPS Insight is not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by GPS Insight, including, but not limited to, the Internet and Customer’s local network.
8.2 Third-Party Data Storage. Customer acknowledges and agrees that GPS Insight utilizes third parties for the operation of the Service and for processing and storage of Customer Data. As such, GPS Insight cannot guarantee that Customer will always have access to Customer Data, or the security of Customer Data. Customer further acknowledges and agrees that Customer is solely responsible for maintaining and protecting all data and information that is stored, retrieved, or otherwise processed by the Service.
8.3 Customer Data. Customer Data is owned by Customer. Customer grants GPS Insight a non-exclusive, worldwide, royalty-free license to use, copy, transmit, sub-license, index, store, aggregate, and display Customer Data as required to provide or perform the Service, Technical Support Services, account management services, and Professional Services, and to publish, display, and distribute de-identified, aggregated information derived from Customer Data and from Customer’s use of the Service for purposes of improving GPS Insight’s products and services, and developing, displaying, and distributing benchmarks and similar reports, provided that any such data is not publicly identified or identifiable as originating with or associated with Customer or any individual person. Upon termination or expiration of the Agreement, GPS Insight shall make Customer Data available for extraction by Customer for a period of thirty (30) days. Customer shall be solely responsible for extracting its Customer Data during such period. At Customer’s request, GPS Insight may assist with data extraction for a fee at GPS Insight’s then-current Professional Services rates. After the expiration of such thirty (30) day period, and unless Customer has purchased read-only access as set forth in Section 6.8, GPS Insight may delete all Customer Data without any liability whatsoever to Customer, its users or any third party.
8.4 Service Use Data. As between Customer and GPS Insight, Customer owns all right, title and interest in and to its Service Use Data. Customer hereby grants a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within data and information related to Customer’s use of, and generated by, the Service, including personal information, location, monitoring and recording activity, solution performance and error information, activity logs and date and time of use (“Service Use Data“). Customer understands and agrees that GPS Insight may collect and use Service Use Data for its own purposes, including without limitation to (i) operate, maintain, manage, and improve existing and create new products and services, (ii) develop, train, and improve including through the development and training of artificial intelligence, machine learning, or other automated technologies, (iii) aggregate Service Use Data and combine it with that of other users, and (iv) any other lawful business purpose. Service Use Data may be disclosed to third parties. It is Customer’s responsibility to notify its authorized users of GPS Insight’s collection and use of Service Use Data and the Privacy Policy and related practices, and to obtain any required consents, provide all necessary notices, and meet any other applicable legal requirements with respect to such collection and use and Customer represents and warrants to GPS Insight that it has complied and will continue to comply with this Section.
8.5 Content Disclaimer. Customer acknowledges and agrees that (a) by using the Service, Customer may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material, and (b) records, documents, images, and information accessed through the Service may contain errors, omissions, or typographical errors or may be out of date. Nevertheless, Customer agrees to use the Service at Customer’s sole risk and that GPS Insight shall not have any liability to Customer for content that may be found to be offensive, indecent, or objectionable. Notwithstanding the foregoing, GPS Insight reserves the right to monitor content and to remove content that it, in its sole discretion, determines to be harmful, offensive, or otherwise in violation of applicable law, this Agreement, or the spirit of the service offering. GPS Insight is not responsible for any failure or delay in removing such material.
8.6 DMCA Compliance. GPS Insight has adopted and implemented a policy for Digital Millennium Copyright Act compliance that permits the deletion of content that violates this policy and permits GPS Insight to terminate the accounts of users who infringe or are believed to be infringing the rights of copyright holders. See GPS Insight’s DMCA Policy at servicebridge.com/dmca.
8.7 Transmission of Data. Customer understands that the technical processing and transmission of Customer Data is necessary to Customer’s use of the Service, and hereby consents to GPS Insight’s interception, processing and storage of such data. Customer acknowledges that GPS Insight may use and disclose Customer Data for purposes related to testing provision, and improvement, of the Service, including through the use of artificial intelligence, machine learning, or similar technologies, and may use and disclose de-identified Customer Data (“Resultant Data“) in aggregate or other de-identified form in connection with its business. Resultant Data shall not contain any Personal Information (as defined below), or any information which could be used to identify Customer. Customer understands that Customer or GPS Insight may be transmitting data over the Internet, and over various networks, only part of which may be owned and/or operated by GPS Insight. Customer agrees that GPS Insight is not responsible for any portions of data that are lost, altered, intercepted or stored without authorization during the transmission of data across networks not owned and/or operated by GPS Insight. To the extent Customer Data includes Personal Information (as defined herein), Customer represents and warrants that it has obtained the required consents and authorizations for GPS Insight to collect, use and disclose such Personal Information as contemplated by the parties in this Agreement, including for any artificial intelligence or machine learning purposes. “Personal Information” means (i) personal data, personal information, personally identifiable information, or similar term as defined by applicable law; or (ii) if not defined by applicable law, any information from which, directly or indirectly, an individual may be identified.
9. WARRANTIES AND DISCLAIMER
9.1 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution and delivery of the Quote, or performance of this Agreement.
9.2 GPS Insight’s Warranty. Unless otherwise set forth on the applicable Quote or Statement of Work, GPS Insight warrants that the Service as delivered to Customer will perform substantially in accordance with its Documentation for (i) one (1) year from when the Service is first made available to Customer, or (ii) expiration of the initial Subscription Term, whichever is earlier. With respect to the Full ServiceBridge Service, Customer must notify GPS Insight of a claim under this warranty within thirty (30) days of the date on which the condition giving rise to the claim first appears. To the extent permitted by law, Customer’s sole and exclusive remedy for a breach of this warranty is for GPS Insight, at its sole discretion, to use commercially reasonable efforts to correct the non-conforming Service, and if correction is not commercially reasonable, Customer may terminate the applicable Quote(s) and GPS Insight will refund any prepaid unused fees for the applicable Service. With respect to Professional Services, GPS Insight warrants that the Professional Services will be delivered in a good and diligent, workmanlike manner. If the Professional Services do not conform to the foregoing warranty, and the Customer notifies GPS Insight within thirty (30) days of GPS Insight’s delivery of the Professional Services, Customer’s sole and exclusive remedy is to have GPS Insight re-perform the non-confirming portions of the Professional Services.
9.3 Sensitive Personal Information. Unless GPS Insight specifically agrees otherwise in writing, Customer represents and warrant that neither Customer nor any Authorized User will upload into the Service, or otherwise provide for processing by the Service, any Sensitive Personal Information. “Sensitive Personal Information” means Sensitive Personal Information and any similar term (e.g., “Sensitive Personal Data,” “Protected Health Information,” etc.) as defined under relevant privacy or data protection laws, including, without limitation, the Gramm-Leach-Bliley Act, Health Insurance Portability and Accountability Act of 1996, US Children’s Online Privacy Protection Act, and Family Educational Rights and Privacy Act. Without limitation, “Sensitive Personal Information” includes: personal financial and financial account information, sexual orientation, personal medical or health information, personal information of children under 13, personal education records, and social security, national identity, national insurance, and similar personal identifiers. Customer further represents and warrants that Customer and any Authorized User will comply with all applicable laws, regulations, self-regulatory guidelines, and Customer’s privacy policy with respect to the collection, transfer, and use of any personally identifiable information in connection with the Service, including proper disclosure and receipt of all required consents from each individual to transfer such personally identifiable information to GPS Insight.
9.4 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT OR ANY APPLICABLE QUOTE OR STATEMENT OF WORK, THE SERVICE, DOCUMENTATION, SUBSCRIBER SOFTWARE, AND ALL OTHER SERVICES OR PRODUCTS, INCLUDING ANY ARTIFICIAL INTELLIGENCE OR MACHINE LEARNING FEATURES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. THE WARRANTIES STATED HEREIN ARE THE SOLE AND EXCLUSIVE REMEDIES OFFERED BY GPS INSIGHT, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. GPS INSIGHT EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. GPS INSIGHT DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICE, SUBSCRIBER SOFTWARE, OR DOCUMENTATION. GPS INSIGHT DOES NOT WARRANT THAT THE SERVICE, SUBSCRIBER SOFTWARE, OR DOCUMENTATION IS ERROR-FREE OR THAT OPERATION OR USE OF THE SERVICE, SUBSCRIBER SOFTWARE, OR DOCUMENTATION WILL BE SECURE OR UNINTERRUPTED. GPS INSIGHT EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIM ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF USE OF THE SERVICE, SUBSCRIBER SOFTWARE, AND DOCUMENTATION. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SOLUTION, INSTALLATION SERVICES, AND SUPPORT AND TRAINING ARE NOT SUBJECT TO ANY WARRANTIES UNDER THIS AGREEMENT BEYOND THOSE EXPRESSLY STATED HEREIN.
9.5 High-Risk Activities. THE SERVICE IS NOT DESIGNED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAILSAFE CONTROLS, INCLUDING WITHOUT LIMITATION OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, OR LIFE SUPPORT OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SERVICE OR SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. GPS INSIGHT SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH HIGH-RISK ACTIVITIES.
10. INDEMNIFICATION
10.1 Indemnification. Customer will indemnify, defend (at its expense), fully release, and hold GPS Insight and its Affiliates and their respective directors, officers, employees, agents, representatives, shareholders, licensors, service providers, distributors, contractors, sub-distributors, successors, and assigns (collectively, the “GPS Insight Parties“) harmless from and against any and all actual or threatened third-party claim, demand, suit, or proceeding (“Claim“), and any related liabilities, damages, losses, costs, and expenses (including reasonable attorneys’ fees and costs, expert fees, court costs, costs of investigation, and costs of enforcing this indemnification or pursuing any insurance providers) arising out of, relating to, or resulting from: (i) any breach by Customer of this Agreement, any applicable Quote or Statement of Work, or any third-party terms incorporated herein; (ii) any use or misuse of the Service by Customer, its Affiliates, Permitted Third Parties, or any Authorized User, whether authorized or unauthorized; (iii) any act or omission (including negligence, gross negligence, recklessness, or wilful misconduct) by Customer, its Affiliates, Permitted Third Parties, Authorized Users, or any third party acting on behalf of Customer or its users, in connection with this Agreement or the Service; (iv) the Customer Data, including the collection, use, processing, storage, or disclosure of Customer Data by or on behalf of GPS Insight in accordance with this Agreement or Customer’s instructions, or any other materials or information provided by or on behalf of Customer or its users; (v) any allegation that the Customer Data or any materials provided by Customer infringes, misappropriates, or otherwise violates any third-party intellectual property rights, proprietary rights, or privacy rights; (vi) any violation by Customer of applicable laws, regulations, or third-party rights, including data protection, privacy, or employment laws; (vii) libel, slander, defamation, infringement of copyright or trademark, invasion of privacy, or violation of publicity rights related to the Customer Data or any other material contained in, processed by, transmitted through, or sent using the Service; (viii) any surveillance, monitoring, or recording that Customer may direct GPS Insight to undertake in connection with the Service; (ix) any claim by any Authorized User, Permitted Third Party, or other third party relating to their access to or use of the Service; or (x) Customer’s breach of any representation or warranty made in this Agreement. Customer’s obligations under this Section 10 will apply regardless of whether the applicable Claim or liability is based on contract, tort (including negligence), strict liability, or any other legal theory, and regardless of whether GPS Insight has been advised of the possibility of such Claims or liabilities. Customer’s indemnification hereunder does not limit any right or remedy that GPS Insight has or may have in the future at law, in equity, or under statute.
10.2 Procedures. GPS Insight will give Customer prompt written notice of any Claim; provided, however, that GPS Insight’s failure to promptly notify Customer will not relieve Customer of its obligations hereunder except to the extent Customer is materially prejudiced thereby. Customer will have sole control over the defence and settlement of any Claim, provided that Customer may not enter into any settlement that (i) imposes any obligation or liability on any GPS Insight Party, (ii) includes any admission of liability or wrongdoing by any GPS Insight Party, or (iii) does not include a full and unconditional release of all GPS Insight Parties, without GPS Insight’s prior written consent, which may be withheld in GPS Insight’s sole discretion. GPS Insight may participate in the defence of any Claim at its own expense and with counsel of its own choosing. Customer will not consent to the entry of any judgment or enter into any settlement of any Claim without GPS Insight’s prior written consent, which may be withheld in GPS Insight’s sole discretion.
11. LIMITATIONS OF LIABILITY
11.1 DISCLAIMER OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING LOST PROFITS, LOSS OF USE, COST OF COVER, LOST SAVINGS, LOSS OF GOODWILL, CURRENCY CONVERSION LOSSES, OR ANY OTHER NON-DIRECT, PECUNIARY, COMMERCIAL OR ECONOMIC LOSS OR DAMAGE OF ANY KIND) ARISING FROM BREACH OF CONTRACT, TORT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION (I) THE SERVICE, SUBSCRIBER SOFTWARE, DOCUMENTATION, PROFESSIONAL SERVICES, TECHNICAL SUPPORT SERVICES OR ANY OTHER SERVICES, INCLUDING WITHOUT LIMITATION, THE RELIABILITY OF ANY DATA OR OPERATIONAL EFFICIENCY THEREOF, (II) ANY INTERRUPTION OF USE OF THE SERVICE, SUBSCRIBER SOFTWARE, DOCUMENTATION, PROFESSIONAL SERVICES, TECHNICAL SUPPORT SERVICES OR ANY OTHER SERVICES, OR (III) LOSS, INACCURACY OR CORRUPTION OF DATA OR BUSINESS INFORMATION. THIS LIMITATION SHALL APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE FORESEEABLE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11.2 CAP ON LIABILITY. TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL GPS INSIGHT’S AGGREGATE LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL SUBSCRIPTION FEE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE QUOTE DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY ANY FEES UNDER THIS AGREEMENT OR ANY QUOTE.
11.3 INDEPENDENT ALLOCATIONS OF RISK. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY GPS INSIGHT TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
11.4 USER DISPUTE RELEASE. IF A DISPUTE ARISES BETWEEN TWO OR MORE USERS, OR BETWEEN CUSTOMER AND A THIRD-PARTY PROVIDER, CUSTOMER RELEASES GPS INSIGHT (AND ITS AFFILIATES AND THEIR RESPECTIVE AGENTS AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
12. THIRD-PARTY PRODUCTS
12.1 GPS Insight Partner Third-Party Products and Services. Any GPS Insight partner third-party product or service (e.g. GPS Insight forms, GPS Insight insights, etc.) that GPS Insight provides as identified in an applicable Quote, shall be subject to this MSA. Customer does not have a direct relationship nor contract with GPS Insight partner, and only has access to these Services as part of the Full ServiceBridge Service and through GPS Insight’s partnership with the applicable third party.
12.2 Non-GPS Insight Third-Party Products and Services. Customer may choose to develop, procure, or connect to Permitted Third Party products or services outside of GPS Insight that interoperates with the Service. GPS Insight does not warrant or support these third-party product or services, regardless of whether it is certified by us. If Customer installs or enables a third-party product or service for use with the Service, Customer grants GPS Insight permission to allow the provider of that product or service to access Customer Data as required for the interoperation with that third-party product or service with the Service. GPS Insight is not responsible for any disclosure, modification, or deletion of Customer Data by the third-party product or service resulting from this access. If GPS Insight believes a third-party product or service violates GPS Insight’s policies, this Agreement, applicable law, or the rights of any third party, GPS Insight may disable the third-party product or service and suspend its use until the potential violation is resolved.
13. MISCELLANEOUS
13.1 Access by Competitors. Customer may not access the Service if Customer is GPS Insight’s direct competitor, except with GPS Insight’s prior written consent. In addition, Customer may not access the Service for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purpose.
13.2 U.S. Government Use. If the Service is licensed under a United States government contract, Customer acknowledges that the Service is a “commercial item” as defined in 48 CFR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are defined in FAR Section 2.101 and Section 252.227-7014 of the Defense Federal Acquisition Regulation Supplement (48 CFR 252.227-7014) and used in 48 CFR 12.212 or 48 CFR 227.7202-1, as applicable. Customer also acknowledges that the Service is “commercial computer software” as defined in 48 CFR 252.227-7014(a)(1). United States government agencies and entities and others acquiring under a United States government contract will have only those rights, and will be subject to all restrictions, set forth in this Agreement.
13.3 Relationship. GPS Insight will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement.
13.4 Publicity. GPS Insight may only use Customer’s name, trademarks, and service marks to the extent necessary to fulfill GPS Insight’s obligations under this Agreement or as otherwise explicitly authorized in this Agreement or an Quote. GPS Insight reserves the right to use Customer’s name as a reference for marketing and promotional purposes on GPS Insight’s website and in other communications with GPS Insight’s existing and prospective customers. GPS Insight may issue a press release, containing Customer’s name, announcing the relationship no later than sixty (60) days following the execution of this Agreement. The press release may include quotes from senior management of both the Customer and GPS Insight. GPS Insight will work with Customer to prepare any additional marketing materials such as case studies, testimonials, videos, etc. and obtain written consent for their use. No specific details of the Agreement will be made public in any format for any promotion, publicity, marketing, or advertising purpose. Any approval required under this Section shall not be unreasonably withheld or delayed by either party. If Customer does not want to be listed as reference for the Service, Customer may send an email to legal@gpsinsight.com stating Customer does not wish to be identified as a reference.
13.5 Assignment and Delegation. Customer may not assign any of Customer’s rights or delegate any of Customer’s obligations under this Agreement (in whole or in part) without GPS Insight’s prior written consent, except in connection with a change of control, merger, or by operation of law. Customer’s assignment or delegation will not relieve Customer of its obligations under this Agreement nor release Customer of Customer’s liability under this Agreement. GPS Insight may voluntarily, involuntarily, or by operation of law assign any of GPS Insight’s rights or delegate any of GPS Insight’s obligations under this Agreement without Customer’s consent. Any purported assignment or delegation in violation of this Subsection will be null and void. Subject to this Subsection, this Agreement will bind and inure to the benefit of each party’s respective permitted successors and permitted assigns.
13.6 Subcontractors. GPS Insight may use subcontractors or other third parties in carrying out GPS Insight’s obligations under this Agreement and any Quote. GPS Insight remains responsible for all of GPS Insight’s obligations under this Agreement.
13.7 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or overnight courier, return receipt requested, to the appropriate party at the address set forth in the Quote and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Subsection. All notices shall be deemed to have been given three (3) days following the date of mailing or posting (if sent by first class mail), upon delivery in the case of courier, or twelve (12) hours after sending by confirmed facsimile, e-mail, or posting to the Service.
13.8 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
13.9 Governing Law. This Agreement shall be governed in accordance with the laws of the State of Arizona and any controlling U.S. federal law, excluding the Uniform Computer Information Transactions Act (UCITA), the United Nations Convention on the International Sale of Goods and choice of law rules of any jurisdiction.
13.10 Jurisdiction; Venue. Any action arising out of or in connection with this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, shall be instituted in a state or federal court in Maricopa County, Arizona. Each party hereby submits to the personal jurisdiction of such courts and waives any defense relating to venue or forum non conveniens.
13.11 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement, including, without limitation, Customer’s Affiliates, Permitted Third Parties, or Authorized Users.
13.12 Changes to the Agreement. THIS AGREEMENT MAY BE MODIFIED OR AMENDED BY GPS INSIGHT IN ITS SOLE AND ABSOLUTE DISCRETION AT ANY TIME. Changes will be effective immediately, provided GPS Insight will utilize good faith efforts to provide a minimum of thirty (30) days prior notice to any material change. Continued use of the Service thereafter shall be deemed consent to and acceptance of this Agreement as revised.
13.13 Waiver and Modifications. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the party’s right to take subsequent action. Exercise or enforcement by either party of any right or remedy under this Agreement will not preclude the enforcement by the party of any other right or remedy under this Agreement or that the party is entitled by law to enforce. Subject to Section 13.13, GPS Insight reserves the right, at GPS Insight’s discretion, to change the terms of this Agreement on a going-forward basis at any time. Please check the terms of this Agreement periodically for changes. If a change materially modifies Customer’s rights or obligations, Customer will be required to accept the modified Agreement in order to continue to use the Service. Material modifications are effective upon Customer’s acceptance of the modified Agreement. Immaterial modifications are effective upon publication. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.
13.14 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Service under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Service will immediately terminate.
13.15 Headings. Headings are used in this Agreement for reference only and will not be considered when interpreting this Agreement.
13.16 Counterparts. The Quote may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. The Quote may also be executed and delivered by facsimile or electronically and such execution and delivery will have the same force and effect of an original document with original signatures.
13.17 Entire Agreement. This Agreement and all exhibits contain the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter, including any prior Nondisclosure Agreement between the parties or their Affiliates. If there is a conflict between the terms of this Agreement and a Quote, the terms of the Quote will control. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. Neither party will be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by the other party in any acceptance, confirmation, invoice, purchase order, receipt, correspondence, or otherwise, unless each party mutually and expressly agrees to such provision in writing.