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Introduction
This Services Agreement (“Agreement”) is between Plotly Technologies Inc. (“Plotly”) and the Customer referenced in the Order Form, SOW or other agreement that incorporates this Agreement.
BY ACCEPTING THIS AGREEMENT BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) SIGNING THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
The effective date of this Agreement is the earlier date when Customer signs the Order Form, registers or begins to use the Products or Professional Services, or the date that the Parties sign this Agreement (the “Effective Date”).
For good and valuable consideration, the Parties agree to the following:
1. Definitions
a. “Affiliate” means, for any party to this Agreement, any person, partnership, joint venture, corporation or other entity which directly or indirectly controls, is controlled by, or is under common control with such party where “control” (or variants of it) means the ability to direct the affairs of another through ownership, contract or otherwise.
b. “Applicable Law” means any local, state, provincial, federal and foreign laws or orders of any governmental or regulatory authority applicable to the provision of the Services and the Client’s use thereof, including but not limited to data protection and privacy laws.
c. “Change Order” means a document describing the agreed changes to a SOW.
d. “Customer Data” means any files, designs, models, data sets, images, documents, or similar material submitted or uploaded to the Products by the Customer and (b) Customer-specific output generated from the use of any Products created by Customer owned data.
e. “Documentation” means the documentation for the Products or Professional Services, as applicable, available from Plotly’s website.
f. “Fees” means any applicable Implementation Fee, the Product license Fee and applicable duties, levies, and taxes associated with such fees.
g. “Intellectual Property” or “IP” means all intellectual property provided by Plotly to Customer or any User in connection with the Agreement, Order Form, SOW or Change Order.
h. “Order Form” means each order form entered by the Parties for Products. Order Forms may be submitted and accepted electronically.
i. “Party” or “Parties” means Plotly or Customer, as the case may be.
j. “Professional Services” means the services Plotly provides to Customer under a SOW.
k. “Products” means the software Plotly licenses to the Customer.
l. “Services” means collectively the Products and Professional Services.
m. “Statement(s) of Work” or “SOW(s)” means any statements of work, including any changes and modifications to them, that describe the Professional Services provided by Plotly to the Customer.
n. “User” means Customer’s employees, consultants, contractors, and agents that Customer authorizes to access and use Products.
2. Use of the Services
a. Use. Products are purchased as subscriptions for the term in an Order Form. Subscriptions for Products may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining when the subscriptions are added. Any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its Product subscriptions are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Plotly regarding future functionality or features.
b. Usage Limits. Products are subject to usage limits specified in Order Forms. If Customer exceeds a contractual usage limit, Plotly may work with Customer to reduce Customer’s usage to conform to that limit. If, notwithstanding Plotly’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional licenses promptly upon Plotly’s request and/or pay any invoice for excess usage per Section 3 (Fees) of this Agreement, provided that any additional fees for excess usage are subject to Customer’s verification and consent.
c. Customer Usage Requirements. Customer will: (a) be responsible for Users’ compliance with this Agreement, Order Forms, SOWs, and Change Orders; (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services and the interoperation of any non-Plotly application with which Customer uses Services (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Plotly promptly of any such unauthorized access or use of the Services, (d) use Services only in accordance with this Agreement, Order Forms, SOWs, and Change Orders and Applicable Law, (e) comply with terms of service of any non-Plotly applications with which Customer uses Services; (f) backup all Customer Data on its own systems; and (g) be responsible for procuring and maintaining all equipment (including hardware and software) and subscribing to all third-party services (including telecommunications services) which are required for the operation of the Services, as specified in any Documentation provided by Plotly. Without limiting any other remedies contained in this Agreement, any use of the Services in breach of the foregoing by Customer or Users that, in Plotly’s judgment, threatens the security, integrity or availability of Plotly’s Services may result in Plotly’s immediate suspension of the Services, however, Plotly will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat before any such suspension.
d. Restrictions. Customer will not (a) make any Services available to anyone other than Customer and its Users, or use any Services for the benefit of anyone other than Customer, unless expressly stated otherwise in an Order Form or SOW, (b) sell, resell, license, sublicense, distribute, rent or lease any Services (c) use a Services 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 Services and Professional Services to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of any Services or third-party data contained therein, (f) attempt to gain unauthorized access to any Services (g) permit direct or indirect access to or use of any Services in a way that circumvents a contractual usage limit, or use any Services to access, copy or use any of Plotly’s intellectual property except as permitted under this Agreement, or an Order Form, (h) modify, copy, or create derivative works of a Services or any part, feature, function or user interface thereof, (i) except to the extent permitted by Applicable Law, disassemble, reverse engineer, or decompile a Services and or access to it (j) build a competitive product or service, (k) build a product or service using similar ideas, features, functions or graphics of the Services, (l) copy any ideas, features, functions or graphics of the Services, or (m) determine whether the Services are within the scope of any patent.
e. Backup. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data. Customer shall comply with all Applicable Laws in using the Services. Customer is solely responsible for selecting and implementing procedures, processes, and controls regarding the access, use and transmission of Customer Data to Plotly and ensuring the backup and recovery of any data. Customer is solely responsible for obtaining all consents necessary or required under Applicable Law to collect, use, and disclose Customer data.
f. Telemetry Data. Plotly may collect and use generic telemetry information derived from Customer use of the Services for Plotly’s reasonable business purposes, including but not limited to improving the Services, maintenance, and Customer support. Plotly will use such generic data to the extent and in the manner permitted under Applicable Law, including compliance with the General Data Protection Regulation (GDPR) and other applicable privacy laws.
g. Professional Services. From time to time, Customer may request that Plotly provide certain Professional Services for Customer’s use of the Products. Subject to paying all applicable fees for such Professional Services, Plotly will provide Professional Services following the terms and conditions of the SOW and the parts of this Agreement that apply to Professional Services. Customer shall not upload or otherwise make available any personal data to Plotly during the provision of any Professional Services.
3. Fees and Expenses
a. Fees. The Customer will pay the Fees (other than those disputed on reasonable grounds) in the manner and at the times set out in the applicable Order Form. The Customer will dispute any Fees within five (5) days of receipt of an invoice. Unless otherwise set out in the Order Form, the Fees will be due within 30 days of the date the Customer receives an invoice.
b. Expenses. Where Plotly is required to travel to the Customer’s business to provide the Services, implementation services, or any requested assistance, the Customer will pay the reasonable travel, food and accommodation costs incurred by Plotly’s staff.
c. Delays. In addition to any other remedy available to Plotly, if the Customer fails to pay any Fees when due, interest will accrue and be payable from the time payment was due until the time the Fees have been paid at a rate of 18% per annum, compounded monthly. The Customer is responsible for legal fees incurred by Plotly for collecting unpaid invoices.
d. Taxes. All Fees and other amounts payable by the Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, the Customer is responsible for all sales, use, and excise taxes and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local government, financial institution or regulatory authority on any amounts payable by the Customer hereunder, other than any taxes imposed on Plotly’s income.
e. Currency. Customer shall make all payments hereunder in US dollars unless otherwise agreed to by the Parties.
4. Support
a. Plotly agrees to provide Customer with standard support and maintenance services in connection with the Products (the “Support Services”). These Support Services include a detailed description of maintenance tasks such as bug fixes, performance improvements, and technical support. Plotly will also make available to the Customer any improved versions, upgrades, or enhancements to the software. If Plotly raises the price for these improvements, the Customer has the right to continue using the current version without additional cost.
b. Plotly warrants that, to the best of its knowledge, the Services contain no malware and that it has implemented industry-accepted practices to check for and remove malware.
5. Third-Party Providers
The Services may include features that permit Customer to connect the Services to third-party applications requested by the Customer (“Third Party Applications”), developed by third parties (“Third Party Developers”). The Customer acknowledges and agrees that:
a. Plotly is not such Third Party Developers and is not an Affiliate of such Third Party Developers;
b. No representation or warranty by such Third Party Developers is binding on Plotly, nor shall breach of such representation or warranty by a Third Party Developer relieve Customer of its obligations to Plotly, and the Customer shall be responsible for the costs of such Third Party Applications;
c. Plotly does not monitor or have any control over and makes no claim or representation regarding Third Party Applications or Third Party Developers, and Plotly is not responsible or liable, directly or indirectly, for any damage, loss or liability caused or alleged to be caused by or in connection with any use of or reliance on any of the foregoing; and
d. To the extent that the Customer authorizes the use of the Services in connection with such Third Party Applications, the Customer consents to Plotly releasing to Third Party Developers any Confidential Information reasonably required by such Third Party Developers for the proper use of such Third Party Applications and such Third Party Developer’s use of such Confidential Information shall be governed by the Customer’s agreement with such Third Party Developers.
6. Termination
a. Term. The term of this Agreement begins on the Effective Date and continues until all subscriptions and SOWs hereunder have expired or have been terminated.
b. Term of Purchased Subscriptions. The term of each subscription for Products shall be as specified in the applicable Order Form. Any renewal in which subscription volume or subscription length for any Product term will result in re-pricing at renewal.
c. Termination. A party may terminate this Agreement, Product subscription and/or any SOW or Change Order for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of the 30-day notice period; or (ii) 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.
d. Termination Refund or Payment. If Customer terminates this Agreement by Section 6(c), Plotly will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If Plotly terminates this Agreement by Section 6(c), Customer will immediately pay any unpaid fees covering the used portion of the term of all Product subscriptions and SOWs to the extent permitted by Applicable Law. In no event will termination relieve Customer of its obligation to pay any fees payable to Plotly for the period before the effective termination date.
e. Effects of Termination. Upon termination of this Agreement, (a) Customer must cease all use of the Services; (b) Plotly shall issue an invoice for any accrued fees payable under this Agreement and any applicable ordering documents, which shall be immediately due upon Customer’s receipt of such final invoice; (d) Customer shall, as directed by Plotly, either delete or return the Products to Plotly, including all Documentation provided; and (e) both Parties shall, as directed by the other Party, either destroy or return any Confidential Information in their possession.
f. Suspension of Products, Professional Services and Acceleration. Notwithstanding anything to the contrary, if any charge owing by Customer under this or any other agreement for Professional Services or Products is 30 days past due, Plotly may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Professional Services or Products until such amounts are paid in full, provided that, Plotly will give Customer at least 5 days prior written notice that its account is overdue, following Section 11(d) (Notice) for billing notices, before suspending Services.
g. Survival. Sections: 1(Definitions), 3(Fees), 6(g) (Survival), 7(Intellectual Property), 8 (Confidential Information), 9(b,c) (warranty disclaimer), 10(Indemnity), 11(Limitation of Liability), and 12(General) survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
h. Customer agrees that articles 2125 and 2129 of the Civil Code of Quebec are excluded and not applicable to this Agreement.
7. Intellectual Property Rights
a. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Plotly, its Affiliates, and its licensors reserve all of their right, title and interest in and to the Services, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. All Plotly IP shall be deemed to be Confidential Information of Plotly.
b. License by Customer to Plotly. Customer grants Plotly, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any non-Plotly Applications and program code created by or for Customer using Products and Professional Services for use by Customer with the Products, and Customer Data, each as appropriate for Plotly to provide and ensure proper operation of the Products, and Professional Services following this Agreement. If Customer chooses to use a non-Plotly application with a Product, Customer grants Plotly permission to allow the non-Plotly application and its provider to access Customer Data and information about Customer’s usage of the non-Plotly application as appropriate for the interoperation of that non-Plotly application with the Product. Subject to the limited licenses granted herein, Plotly acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, non-Plotly application, Customer IP or such program code.
c. License by Customer. Customer grants to Plotly and its affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and make and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of Plotly’s or its Affiliates’ Products and Professional Services.
8. Confidentiality
a. For this Agreement, “Confidential Information” means any information that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in the course of Plotly providing the Services to the Customer and that a reasonable person would consider to be confidential in the circumstances. Confidential Information includes, but is not limited to, the parties’ business information, customer information, trade secrets, the terms of each SOW and Order Form, and personal information of the parties’ employees, contractors and customers. Confidential Information does not include any information that is disclosed by one party to another party if that information (i) is at the time of disclosure in the possession of the Receiving Party or any of its Affiliates and was obtained without an obligation of confidence; (ii) is independently developed by the Receiving Party or any of its Affiliates without any use of or reference to the Confidential Information; (iii) is or becomes publicly available without the Receiving Party’s breach of any obligation of confidence; (iv) is acquired by the Receiving Party from a third party who provided the information without breaching any express or implied obligations or duties to the Disclosing Party; or (v) is intentionally released for disclosure by the Disclosing Party or with the Disclosing Party’s prior written consent.
b. Each of Plotly and the Customer agree with the other that it shall: (i) take all reasonable steps to maintain the confidentiality of the other party’s Confidential Information; (ii) not copy the Confidential Information except as may reasonably be required by Plotly in the provision of the Services; (iii) not use the Confidential Information for its own purposes; (iv) safeguard all documents containing Confidential Information against theft, damage or access by unauthorized persons; (v) use the same degree of care with respect to the Confidential Information as it employs with respect to its own proprietary or confidential information of like importance; and (vi) except as required by law or a valid court order, and subject to the Receiving Party informing the Disclosing Party of such legal requirement, only disclose such Confidential Information to those officers, directors, officers, employees, agents, and subcontractors (“Receiving Party’s Personnel”) who need to know in order to perform their obligations under this Agreement. The Receiving Party will ensure that the Receiving Party’s Personnel who need to know the Confidential Information agree to maintain the confidentiality of such Confidential Information on terms no less stringent than the terms of these herein confidentiality provisions.
c. Upon termination of the Products, each party will, without undue delay, upon written request from the other party, return to the other party or destroy all Confidential Information of the other party in its possession or control. Notwithstanding anything contained herein to the contrary, the Receiving Party shall not be obligated to destroy Confidential Information to the extent otherwise required by law, regulation, legal, regulatory or judicial process, rule or practice governing professionals, or any internal compliance policy or procedure relating to the safeguarding or backup storage of data.
9. Warranty
a. Each party represents and warrants to the other party that: (a) this Agreement has been duly executed and delivered by the party and constitutes a legal, valid and binding obligation of such party, enforceable against it following its terms; (b) it has the full right, power and proper authority to enter into this Agreement and to perform its obligations hereunder; and (c) it will perform its obligations under this Agreement following all applicable federal, state, provincial and local laws, rules and regulations of any applicable governmental authority.
b. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN SECTION 9, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, THE SERVICES ARE PROVIDED BY PLOTLY “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND, AND PLOTLY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES, WHETHER EXPRESS, STATUTORY, LEGAL OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. HOWEVER, PLOTLY WARRANTS THAT THE SERVICES WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH ANY DESCRIPTIONS, DOCUMENTATION, OR OTHER SPECIFICATIONS PROVIDED BY PLOTLY. PLOTLY DOES NOT WARRANT AGAINST INTERFERENCE WITH CUSTOMER’S ENJOYMENT OF THE SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE USE OF THE SERVICES IS AT CUSTOMER’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH CUSTOMER. ACCORDINGLY, PLOTLY IS NOT LIABLE TO CUSTOMER FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM CUSTOMER’S RELIANCE ON THE QUALITY OR ACCURACY OF THE SERVICES OR THE DIGITAL MODELS OR RENDERINGS GENERATED THROUGH THE USE OF THE SERVICES.
c. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, CUSTOMER’S SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SERVICES OR ANY OTHER GRIEVANCE SHALL BE CUSTOMER’S TERMINATION AND DISCONTINUATION OF THE USE OF SERVICES.
10. Indemnity
a. Indemnification by the Customer. The Customer will defend, indemnify, and hold Plotly and its directors, officers, employees harmless against any loss, damage, or cost (including reasonable attorneys’ fees) incurred in connection with a claim, demand, suit, or proceeding by a third party alleging that the Customer’s use of the Services: (i) infringes upon the privacy rights of a third party, (ii) is in violation or alleged violation of any Applicable Law, or (iii) is a result of the Customer’s negligence, or willful misconduct, or (iv) use of the Services in a manner not authorized by this Agreement. The indemnification obligations are subject to (a) Plotly will notify Customer in writing as soon as reasonably practicable as to any such claim; (b) Plotly will give Customer sole control of the defence and settlement of the claim against Plotly (except that Customer may not settle any claim against Plotly unless it unconditionally releases Plotly of all liability), and (c) Plotly gives Customer all reasonable assistance, at Customer’s expense.
b. Indemnification by Plotly. Plotly will defend, indemnify, and hold the Customer and its directors, officers, and employees harmless against any loss, damage, or cost, and any lawsuit to the extent based thereon, that is brought by a third party against the Customer alleging that the Services: (i) infringe any patent, trade secret, copyright or other Intellectual Property Rights (“Infringement Claim”); or (ii) breach of Applicable Law. The indemnification obligation is subject to (a) Customer will notify Plotly in writing as soon as reasonably practicable as to any such claim; (b) Customer will give Plotly sole control of the defence and settlement of the claim against Plotly (except that Plotly may not settle any infringement claim against Customer unless it unconditionally releases Customer of all liability), and (c) Customer gives Plotly all reasonable assistance, at Plotly’s expense. If Plotly believes that the Services may be subject to an Infringement Claim, or the Customer’s use of the Services is held to infringe, and its use is enjoined, or threatened to be enjoined, then Plotly will, at Plotly’s own expense and option: (i) procure for the Customer the right to continue using the Services, or (ii) replace same with non-infringing Services, or (iii) modify the Services so that it becomes non-infringing. If none of the foregoing is available on terms that are commercially reasonable for Plotly, then Plotly may terminate the Customer’s rights to access and use those portions of the Services that are subject to such Infringement Claim, in which case Plotly will refund the Customer a pro-rata amount of any prepaid fees applicable to the unutilized portion of the Term of the terminated Services. THIS SECTION REPRESENTS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO THE CUSTOMER AGAINST PLOTLY FOR ANY INFRINGEMENT CLAIMS. Notwithstanding the foregoing, Plotly has no obligation with respect to any actual or claimed infringement if the Infringement Claim is solely caused by Customer Data, use of the Services other than as specified in any Documentation made available by Plotly to the Customer, or the Customer’s combination of the Services with any products, software, services, data or other materials not provided by, required by, or approved by Plotly unless such use is necessary to use the Services as instructed by Plotly.
c. Exclusive Remedy. This “Indemnity” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.
11. Limitation of Liability
a. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS OR GOODWILL, WORK STOPPAGE, LOSS OF INFORMATION OR DATA, OR LOSS OF REVENUE OR PROFIT, RESULTING FROM THE PROVISION OF OR RELIANCE UPON THE SERVICES, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, REGARDLESS OF THE LEGAL THEORY ASSERTED, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE.
b. SUBJECT TO APPLICABLE LAW, EVEN IF PLOTLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, PLOTLY’S AGGREGATE AND TOTAL LIABILITY UNDER THIS AGREEMENT FOR ANY AND ALL CLAIMS ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY THE CUSTOMER TO PLOTLY UNDER THIS AGREEMENT OVER THE PRECEDING TWELVE (12) MONTHS. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT, WARRANTY, TORT, OR OTHERWISE AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER SECTION 3(FEES) EXCEPT AS SET FORTH UNDER APPLICABLE LAW.
c. DAMAGES SET FORTH IN SECTION 11(b) ARE THE PARTIES’ SOLE EXCLUSIVE MONETARY REMEDY AND THE SOLE AND EXCLUSIVE ALTERNATIVE REMEDY IN THE EVENT ANY OTHER REMEDY FAILS OF ITS ESSENTIAL PURPOSE. FOR THE AVOIDANCE OF DOUBT, THE PARTIES MAY NOT LIMIT THEIR LIABILITY WHERE PREVENTED FROM DOING SO BY APPLICABLE LAW.
12. General
a. Independent Contractor. The relationship of the Parties established by this Agreement is that of independent contractors. This Agreement does not establish any employment or agency relationship between the Parties. Except as may be expressly provided herein, neither Party shall have any right, power, or authority, nor shall they represent themselves as having any authority to assume, create or incur any expense, liability or obligation, express or implied, on behalf of the other Party, or otherwise act as an agent for the other party for any purpose.
b. Modification of Terms. To the fullest extent permitted by Applicable Law, Plotly may modify this Agreement from time to time. Plotly will give Customer written notice of modifications to the Agreement by any reasonable manner of notice which it elects, and Customer’s use of the Services after the effective date of the modifications as set out in such notice constitutes Customer’s agreement to such modifications.
c. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, Plotly may assign this Agreement in its entirety (including all Order Forms and SOWs), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
d. Notice. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Customer’s addresses set forth in the Order Form (or to such other address that may be designated by the Party giving Notice from time to time following this Section). To Plotly at legal@plot.ly or Plotly Technologies Inc., 118-5555 avenue de Gaspé, Montréal, Québec H2T 2A3, Canada. All Notices mailed must be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Plotly may send Notices to the Customer by email. Except as otherwise provided in this Agreement, a Notice is effective only (i) upon receipt by the receiving Party and (ii) if the Party giving the Notice has complied with the requirements of this Section.
e. Force Majeure. Neither party shall be liable to the other for failure or delay in the performance of any of its obligations under this Agreement for the time and to the extent such failure or delay is caused by earthquake, riot, civil commotion, war, terrorist acts, strike, flood, transportation interruption or governmental acts or restriction, or other cause that is beyond the reasonable control of the respective party. The party affected by such force majeure shall provide the other party with complete information thereof as soon as it becomes aware of the same (including its best estimate of the likely extent and duration of the interference with its activities) and shall use commercially reasonable efforts to overcome the difficulties created thereby and to resume performance of its obligations as soon as practicable.
f. Export Control. Both Plotly and Customer agree to fully comply with all applicable export control laws. Neither party shall cause, directly or indirectly, the export, re-export, or transfer of any data, information, technology, or software to destinations or persons without obtaining any required prior authorization, governmental licenses, certification, or approval from Canada, the United States, the European Union, or other applicable authorities. Both parties acknowledge and agree that the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which Canada, the United States, or the European Union maintain an embargo or to or by a national or resident thereof or any person or entity on a restricted party list maintained by the Canadian or United States Government or the European Union.
g. Jurisdiction. This Agreement shall be governed by and interpreted per the laws of the Province of Quebec, without reference to conflict of laws provisions and the laws of Canada applicable therein. The parties agree to irrevocably attorn to the jurisdiction of the courts of the Province of Quebec in connection with any matter relating to this Agreement.
h. In the event a dispute arises between the parties in connection with this Agreement, before resorting to arbitration, Customer will immediately notify Plotly thereof, and Customer and Plotly will attempt to resolve the matter.
I. If the dispute cannot be resolved by the liaisons within ten (10) business days of Customer informing Plotly in writing of the issue in dispute, then Customer will promptly refer the dispute to Customer’s senior management, and Plotly will refer the dispute to its senior management. If these persons cannot resolve the dispute within ten (10) business days after the conclusion of the preceding ten (10) day period, then Customer’s senior management will refer the dispute to Customer’s senior vice president, who has responsibility for the project and Plotly senior management will refer the dispute to Plotly’s senior vice president who has responsibility for the project. If these persons cannot resolve the dispute within ten (10) business days, then either party will have the right to proceed to settle the suit by arbitration.
II. A Party may not start court proceedings concerning a Dispute until it has exhausted the procedures in this Section 12(h) unless the Party seeks injunctive or other interlocutory relief.
III. Both Parties must continue performing their respective obligations and responsibilities under this Agreement while any dispute is being resolved following this Section 12(h), unless and until such obligations are terminated or expire following the provisions of this Agreement.
i. In the event that negotiation does not resolve the dispute within forty-five (45) days of said notice, all claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration under Quebec law in the City of Montreal, Quebec. The arbitration shall be confidential under the Commercial Arbitration Rules of the Canadian Arbitration Association (CAA). Any such arbitration shall be conducted by an arbitrator experienced in software and cloud-based web services. The Parties reserve the right to, acting reasonably, object to any individual employed by or affiliated with a competing organization or entity. Judgment upon an arbitration award may be entered in any court of competent jurisdiction. The arbitrator shall not have any authority to award non-compensatory, punitive or exemplary damages. For emergency or interim relief, the parties also agree that the CAA Optional Rules for Emergency Measures of Protection shall apply to the proceedings.
j. Publicity. Customer agrees that Plotly may reference its name and brand logo in Plotly’s marketing and promotional materials as a user of the Services.
k. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 8(Confidentiality) or, in the case of Customer, Section 2(d), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
l. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
m. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to effect their original intent as closely as possible in a mutually acceptable manner so that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent feasible.
n. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
o. Expenses. All costs and expenses incurred in connection with this Agreement and each other agreement, document and instrument contemplated by this Agreement and the transactions contemplated hereby shall be paid by the Party incurring such costs and expenses.
p. No additional terms, policies, codes of conduct, or other requirements referenced within this Agreement shall take precedence over the Agreement, any Exhibits, or SOWs.
q. Headings. The headings of this Agreement are for convenience only and shall not affect the meaning of the terms of this Agreement. References to a Section refer to this Agreement’s applicable section, subsection, or exhibit.
r. Including. Wherever the words “include”, “includes”, or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, and the words following “include”, “includes”, or “including” shall not be considered to set forth an exhaustive list.
s. Language. The parties have requested that this Agreement and related documents be drafted in English. Les parties ont demandées que ce contrat et les documents qui y sont liés soient rédigés en anglais.
t. Counterparts. This Agreement may be signed by the parties in as many counterparts as necessary, each of which so signed shall be deemed original and such counterparts together shall constitute one and the same instrument. This Agreement may be executed and delivered electronically. An executed copy of this Agreement delivered electronically will constitute valid execution and delivery.
